THE FINANCIAL SERVICES TRIBUNAL

CASE NO.: PFA56/2022

In the matter between:

NCANYIWE BHOKANI	APPLICANT

and

ESKOM PENSION AND PROVIDENT FUND	FIRST RESPONDENT

THE PENSION FUNDS ADJUDICATOR	SECOND RESPONDENT

In re reconsideration of a decision of the PFA – jurisdiction – sec 30H(2) of the Pension Fund Act

DECISION

1	The applicant was married to Mr M E Bhokani, who was a member of the first respondent, Eskom Pension and Provident Fund (‘the Fund’). They were divorced on 4 May 2021, before the member’s retirement at the end of October 2021. The divorce order stated that she was entitled to 50% of the member’s pension fund interest held by him and that the Fund had to reflect her share in his interest and had to pay 50% of the interest to her within 30 days.

2	The Fund pointed out to the applicant that the order did not bind it because it did not comply with sec 7(8)(a) of the Divorce Act 70 of 1079 read with sec 37D of the Pension Funds Act 24 of 1956, and the Fund supplied her with a draft form of order and advised her to obtain a rectification of the court order. The variation (rectified) order was issued on 11 January 2022, which was after payment to the member of his pension interest.

3	To prevent payment to him, the applicant in the meantime had obtained an interim interdict, which was dated 30 November 2021, from the East London Circuit Local Division against the Fund, prohibiting it from paying the member his full interest pending the conclusion of the variation proceedings. There is a issue on the papers about the effect of the interim order which was provided to the Fund before the member received his pension interest but after payment had been processed.

4	In any event, the order also directed the Fund to calculate the value of the applicant’s 50% within 30 days of receipt of the variation order (which was to follow).

5	On 25 March 2022, the applicant obtained an order from the Gauteng Local Division, Johannesburg, ordering the Fund to comply within five days with the order mentioned in the preceding paragraph. (It is, respectfully, not understood how a different High Court could issue such an order and why courts issue orders that orders should be complied with.)

6	The order, in addition, required of the Fund to provide the applicant with specified information concerning the member’s interest and how it had been dealt with.

7	The complainant alleged that the Fund failed to comply with the court order and she then laid a complaint under sec 30A of the Pension Funds Act against the Fund with the Penson Funds Adjudicator. Her complaint was that the Fund did not honour any of the court orders and the relief she sought was the PFA should order the Fund to respect and honour the court orders.

8	The PFA dismissed the complaint on 27 July 2022 without addressing the merits of the complaint because, as she stated, the PFA is not empowered to enforce court orders. She relied in particular on sec 39H(2) and the definition of ‘complaint’ in sec 1 of the PF Act.

9	Realising the difficulty raised by the PFA, the applicant filed another complaint dated 12 September 2022, this time stating that her complaint related to the administration and maladministration of the Fund and its failure to exercise its powers and committing acts of maladministration. The maladministration consisted therein that the Fund had failed to preserve the applicant’s share and to abide by the instructions of the applicant’s attorney to preserve the share. The relief sought was payment by the Fund of the interest that she had lost because of the maladministration and the failure by the Fund to exercise its powers properly. (Why the Fund should have complied with the attorney’s instructions and not with its statutory duties is unclear.)

10	The PFA dismissed this later complaint on the same ground, namely lack of jurisdiction.

11	The problem is that giving a leopard another name does not change its spots. The letter accompanying the second complaint stated that the first complaint related to maladministration and not to enforcing the court order. That statement is simply untrue. The second complaint is also replete with references to the different court orders and the non-compliance by the Fund with those orders. And by omitting facts that are on record and relevant from the second complaint was improper.

12	To cut to the chase: the applicant in essence now seeks from the PFA an order for payment by the Fund of her 50% share of the member’s pension interest. That order may then be executed in the normal manner as a court order.

13	The problem facing the applicant is that the variation order of the High Court already provided for payment of her interest by the Fund (see especially para 4.4). In other words, her present complaint is covered by a court order. As the PFA said, it would serve no purpose for the PFA to make an order requiring the Fund to comply with an order already issued by a court of law.

14	In addition, the complaint of maladministration was the causa of her application in the Gauteng High Court which brings one to sec 30H, which the applicant did not address in the reconsideration application: 

The Adjudicator shall not investigate a complaint if, before the lodging of the complaint, proceedings have been instituted in any civil court in respect of a matter which would constitute the subject matter of the investigation.

15	The application stands to be dismissed.

16	In conclusion, the parties waived their right to a formal hearing and this is the decision of the Tribunal.

ORDER: The application for reconsideration is dismissed.

Signed on behalf of the Tribunal.
23 January 2023

LTC Harms (deputy chair)