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THE FINANCIAL SERVICES TRIBUNAL

 

Case No. PFA27/2023

 

In the matter between:

 

ZOLILE LINGANI                                                        Applicant

 

and

 

MATJHABENG LOCAL MUNICIPALITY                    First Respondent

 

MUNICIPAL WORKERS PENSION FUND                 Second Respondent

 

THE PENSION FUNDS ADJUDICATOR                    Third Respondent

 

 

Summary: Reconsideration of a decision of the Pension Funds Adjudicator (30M) in terms of Section 230 of the Financial Sector Regulation Act 9 of 2017.

 

 

DECISION

 

 

INTRODUCTION

 

1.       The Applicant is Zolile Lingani.

 

2.       The First Respondent is the Matjhabeng Local Municipality.

 

3.       The Second Respondent is the Municipal Workers Pension Fund.

 

4.       The Third Respondent is the Pension Funds Adjudicator.

 

5.       This is an application in terms of Section 230 of the Financial Sector Regulation Act 9 of 2017 against the decision taken by the Third Respondent in terms of Section 30M of the Pensions Fund Act 24 of 1956 (“the PFA”).

 

6.       The parties have waived their right to a formal hearing, and this is the

decision of the Tribunal.

 

7.       Section 230 of the Financial Sector Regulation Act 9 of 2017 ("the FSR Act") provides the basis for the Applicant to lodge this application for reconsideration and seek appropriate relief.

 

THE COMPLAINT

 

8.       The Applicant filed a complaint with Third Respondent on 7 September 2022.

 

9.       The Applicant complained that:

 

9.1       The First Respondent failed to register him as a member of the Second Respondent timeously and failed to pay his pension fund contributions from the date of his employment in April 2009 to February 2010 to the Second Respondent; and

 

9.2       The First Respondent failed to pay his pension fund contributions from March 2021 to July 2021 to the Second Respondent.

 

10.   The First Respondent failed to make any representations when called upon to do so by the Third Respondent.

 

11.   The Second Respondent filed a response with the Third Respondent, provided a schedule of contributions, and indicated that the Applicant became a member of the fund on 1 April 2010 and that, according to its records, the contribution for June 2021 was the only payment outstanding.

THE DECISION

 

12.   The Third Respondent considered the Applicant’s complaint and, albeit for the wrong reasons, came to the correct conclusion that the claim in respect of the complaint in 9.1 was time-barred, as contemplated in section 30I of the PFA. The Third Respondent noted the contribution schedule provided by the Second Respondent and found that the payment in respect of June 2021 had not been made, was due by the First Respondent, and made a Determination in this regard.

 

THE APPLICANT’S CASE FOR RECONSIDERATION

 

13.   The Applicant, as stated hereinabove, was aggrieved by the Determination and, for that reason, lodged this application for reconsideration.

 

14.   After having considered the grounds of reconsideration listed by the Applicant, the following appear to be the essence of the Applicant’s grounds:-

 

14.1       The First Respondent failed to register him with the Second Respondent timeously and failed to make payment of contributions to the Second Respondent for the period April 2009 to February 2010;

 

14.2       The Second Respondent failed to collect the contributions for the period April 2009 to February 2010;

 

14.3       The First Respondent failed to make payment of pension fund contributions for the period of March 2021 to July 2021.

 

DISCUSSION

 

15.   It is correct that the First Respondent failed to register the Applicant with the Second Respondent timeously and failed to make payment of contributions to the Second Respondent for at least the period April 2009 to February 2010. This is apparent from the contribution schedule filed by the Second Respondent.

 

16.   No fault can be levied at the door of the Second Respondent in this regard. Put differently, how were they to know of the Applicant’s employment with the First Respondent? The obligation to enrol the Applicant with the Second Respondent was the responsibility of the First Respondent.

 

17.   By scrutinizing his payslip, the Applicant could have ascertained many years ago that contributions were not paid to the Second Respondent for the period April 2009 to February 2010. In this regard, Section 30I of the PFA provides as follows:

 

30I. Time limit for lodging of complaints.—

 

(1)    The Adjudicator shall not investigate a complaint if the act or omission to which it relates occurred more than three years before the date on which the complaint is received by him or her in writing.

 

(2)    The provisions of the Prescription Act, 1969 (Act No. 68 of 1969), relating to a debt apply in respect of the calculation of the three year period referred to in subsection (1).

 

19.   In terms of section 30I(2), if the Applicant were unaware of the First Respondent’s conduct, the period of three years would commence on the date on which he became aware or ought reasonably to have become aware of such conduct, whichever occurred first. In the circumstances, the investigation is time-barred, and this complaint must fail.

 

20.   In respect of the second complaint wherein the Applicant complained that the First Respondent had failed to make payment of the contributions for the period March 2021 to July 2021, it is apparent from the contribution schedule filed by the Second Respondent that is only the month of June 2021 which remains outstanding. This aspect was correctly dealt with in the Determination made by the Third Respondent. In the circumstances, this complaint must similarly fail.

 

ORDER

 

(a)  The application is dismissed.

 

 

Signed on behalf of the Tribunal on 11 July 2023.

 

PJ Veldhuizen

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