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THE FINANCIAL SERVICES TRIBUNAL

 

 

CASE NO.: PFA48/2021

 

In the matter between:

 

LOUBSER BULK SERVICES (PTY) LTD               Applicant

 

and

 

TRANSPORT SECTOR RETIREMENT FUND        1^st Respondent

 

SALT EMPLOYEE BENEFITS (PTY} LTD              2^nd Respondent

 

THE PENSION FUNDS ADJUDICATOR                 3^rd Respondent

 

KD SETHABELA                                                    1^st Complainant

 

ES MOTAUNG                                                        2^nd Complainant

 

MV PAULUSI                                                          3^rd Complainant

 

 

DECISION

 

 

1         The applicant, Loubser Bulk Services (Pty) Ltd (“the Company”), is a contributing employer of the Transport Sector Retirement Fund (“the Fund”). The Fund is administered by the second respondent (“Salt”). The complainants were and are employed by the Company.

 

2         The complainants filed similar but separate complaints with the Pension Funds Adjudicator (“the PFA”) about the fact that the Company had not paid their fund contributions over to the Fund.

 

3         The complaints were under sec 30A of the Pension Funds Act 24 of 1956.

 

4         The PFA upheld the complaints and the Company apply for reconsideration of the PFA’s determinations under sec 230 of the Financial Sector Regulation Act 9 of 2017.

 

5         The parties waived their right to a formal hearing. Only the Company filed an argument and the PFA did not file an additional report.

 

6         The Company’s original response to two of the complaints was somewhat non-committal, relying on the fact that the Company was under business rescue and that some or other arrangement had been reached with the transport sector. These “defences” do not form part of the present matter.

 

7         In any event, the PFA issued determinations during September - October 2020 in the standard form. The terms relevant are restated:

 

a)       The Company is ordered to submit outstanding contribution schedules for the relevant period to the Fund to facilitate the computation of the complainant's outstanding contributions, within four weeks of the determination.

b)      Should the Company fail to comply, the Fund is ordered to reconstruct the complainant's contribution schedules.

c)       The Fund is ordered to compute the arrear contributions due by the Company, together with late payment interest.

d)      The Fund is ordered to transmit to the Company its computations within three days of completing them.

e)       The Company is ordered to pay to the Fund the arrear contributions together with late payment interest as computed within one week of receiving the computations from the Fund.

f)        The Fund is ordered to allocate the contributions to the complainant's fund credit and update his record, within two weeks of receiving payment from the second respondent.

 

8         The applicant alleges that it did not receive notice of the determination until writs of execution were served on it during March 2021. The writs were issued under sec 30O of the Act. For context secs 30M, 30N and 30O are quoted:

 

30M. After the Adjudicator has completed an investigation, he or she shall send a statement containing his or her determination and the reasons therefor, signed by him or her, to all parties concerned as well as to the clerk or registrar of the court which would have had jurisdiction had the matter been heard by a court. 30N. Where a determination consists of an obligation to pay an amount of money, the debt shall bear interest as from the date and at the rate determined by the Adjudicator. 30O. (1) Any determination of the Adjudicator shall be deemed to be a civil judgment of any court of law had the matter in question been heard by such court, and shall be so noted by the clerk or the registrar of the court, as the case may be.

 

(2) A writ or warrant of execution may be issued by the clerk or the registrar of the court in question and executed by the sheriff of such court after expiration of a period of six weeks after the date of the determination, on condition that no application contemplated in section 30P has been lodged.

 

9         The writs of execution have some strange aspects. First, the judgment creditor on whose behalf they were issued are the complainants and not the Fund and they ask for payment to the complainant “or” the Fund. Two remarks: the determination of the PFA stated clearly that payment had to be made to the Fund – see para (e) above. Nowhere was it ordered that the Company had to pay the complainants because it would have been unlawful under the rules of the Fund and the Act. Further, the complainants did not, on the face of the warrant of execution, have any authority to execute on behalf of the Fund.

 

10      Then the amount stated in the warrant: the PFA did not “determine” that amount. One may assume that the Fund did so but a determination by a Fund is not akin to a civil judgment. The PFA could not delegate its authority and empower a Fund to determine a judgment debt. The PFA determined a procedure for assessing the amount and nothing more.

 

11      This leads to the last aspect: it is undisputed on the papers that the Fund had not complied with para (d) of the determination – it failed to transmit to the Company its computations before it determined the Company’s liability on which the warrants are based. That means that the computation does not bind the Company and the computation could not be enforced through execution.

 

12      In sum, the warrants of execution appear to be void and unenforceable. They are High Court processes and in the view of this Tribunal an attack on them is a matter for that honourable Court. Their validity is not something that falls under the jurisdiction of this Tribunal.

 

13      That brings one to the application for reconsideration of the PFA’s determination. The Company’s complaints are that (a) the Fund had calculated the contributions without complying with the PFA’s determination and (b) the calculations are wrong.

 

14      The problem with the application for reconsideration is that it is not alleged that the PFA’s determination was in any respect incorrect. The Company is not under sec 230 aggrieved by the decision of the PFA. The complaint relates to matters post the determination – enforcement matters. This means that the Company misconceived its remedy. Without giving advice, it could either approach the High Court for setting aside the warrants or else it could file a complaint with the PFA against the Fund for its allegedly wrongful and incorrect calculation.

 

15      The application is dismissed.

 

 

Signed on behalf of the Tribunal on 1 September 2021.

 

 

LTC Harms (deputy chair)

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