THE FINANCIAL SERVICES TRIBUNAL

PFA2/2023

In the matter between:

DR HENRY NKHANEDZENI MURIBWATHOHO	Applicant

and

UNIVERSITY OF KWAZULU-NATAL (UKZN)	First Respondent

UKZN PENSION FUND / SANLAM	Second Respondent

PENSION FUNDS ADJUDICATOR	Third Respondent

Tribunal: LTC Harms (chair), Adv PR Long

DECSION

1.	The applicant was employed by the first respondent from 1 February 1996 until his retirement in March 2021. Upon retirement, the applicant’s pension benefit was calculated from June 2000 to March 2021, the former being the date on which he joined the second respondent (‘the fund’). In the period between 1 February 1996 and June 2000, the applicant paid contributions to the Amalgamated Institutions Pension Fund (‘the AIPF contributions’). The AIPF contributions were not factored into the applicant’s pension payout.

2.	Accordingly, on 9 May 2021, the applicant lodged a complaint with the third respondent in terms of section 30A of the Pension Funds Act 24 of 1956 (‘the PFA’). In his complaint, the applicant sought the following relief:

‘I want the university to calculate my Benefits from 1 February 1996 to 31 March 2021, including my Pro-Rata Bonus and Leave Pay. They were all calculated from a wrong date. This means that my Benefits Certificate has to be re- adjusted.’

3.	On 8 November 2021, the third respondent made a determination in respect of the complaint and found that the complaint relates to the period between 1 February 1996 and June 2000. In the result, and in terms of section 30I of the PFA, the complaint is time-barred, and the third respondent does not have the jurisdiction to investigate the complaint. The third respondent proceeded to close its file.

4.	On 29 January 2023, the applicant applied to this Tribunal for a reconsideration of the decision by the third respondent. The applicant is not legally represented, and the fund has filed a notice to abide the decision of the Tribunal. In addition, the parties have waived their right to a formal hearing.

LATE FILING OF APPLICATION FOR RECONSIDERATION

5.	In terms of section 230(2) of the Financial Services Regulation Act, Act No 9 of 2017 (‘the FSR Act’) an application for reconsideration must be made:

‘(a)  if the applicant requested reasons in terms of section 229, within 30 days after the statement of reasons was given to the person; or (b)   in all other cases, within 60 days after the applicant was notified of the decision, or such longer period as may on good cause be allowed.’ (Emphasis added)

6.	This application was therefore made approximately 14 (fourteen) months after the impugned decision and is therefore out of time. Accordingly, the applicant seeks condonation.

7.	In terms of the Rules of this Tribunal, in particular Rules 31 and 32, an application for condonation must be succinct and show good cause. In deciding whether good cause has been shown, the tribunal exercises a discretion, having regard to the extent of the delay, the explanation proffered for that delay, the applicant’s prospects of success, and the relative prejudice to the parties that would be occasioned by the application being granted or refused.

8.	It has been held that:

‘Condonation is not to be had merely for the asking; a full, detailed and accurate account of the causes of the delay and their effects must be furnished so as to enable the Court to understand clearly the reasons and to assess the responsibility. It must be obvious that if the non-compliance is time-related then the date, duration and extent of any obstacle on which reliance is placed must be spelled out.’

9.	 In essence, the applicant alleges that he could not bring this application within the 60-day period due to the fact that he sought to ‘locate the funds’ from ‘stakeholders’. No more is said. However, the fund acknowledged that the AIPF contributions were paid to it during September 2000 on behalf of the applicant. This is also apparent from the determination of the third respondent dated 8 November 2021, which is the subject of this application. The location of the AIPF contributions were therefore not in issue, the impact thereof on the total contribution was and it is for that reason that the applicant sought a recalculation of the pension benefit.

10.	The explanation advanced by the applicant that the delay was occasioned by the fact that he sought to ‘locate the funds’, is therefore wholly unsatisfactory.

11.	Moreover, the applicant claims that he located the said funds on 12 November 2022. However, the applicant has not explained why he took a further two and a half months to bring this application.

12.	Faced thus with no explanation for the applicant’s inordinate delay, alternatively, one which lacks both particularity and candour, and is wholly unsatisfactory, the Tribunal cannot come to the aid of the applicant.

ORDER

13.	The following order is made:

a) The application for reconsideration is dismissed.

Signed on behalf of the Tribunal on 11 April 2023 at Sandton.

PR Long