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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

THE FINANCIAL SERVICES TRIBUNAL

 

CASE No: PFA12/2024

 

In the matter between:
T[…] W[…] K[…]	APPLICANT
and
CAPE GATE NEGOTIATED PROVIDENT FUND	FIRST RESPONDENT
THE PENSION FUND ADJUDICATOR	SECOND RESPODENT

 

Tribunal Members: Judge LTC Harms (Chair)

Judge FD Kgomo (Member)

 

Summary: Condonation and Reconsideration of a decision of the Pension Fund Adjudicator in terms of section 230 of the Financial Sector Regulations, Act 9 of 2017 ("the FSRA"): Determination by the Adjudicator pursuant to Section 30M of the Pension Funds Act, 24 of 1956.

 

DECISION

 

INTRODUCTION

 

[1]               This is an application by the complainant, Mr T[...] W[...] K[...], in terms of section 230 of the Financial Sector Regulation, Act 9 of 2017, against the decision of the Pension Funds Adjudicator ("the Adjudicator") in terms of Section 30M of the Pension Funds Act, 24 of 1956 ("the PFA"), and involving the issue of condonation for the apparent filing of the application out of time.

 

[2]               The First Respondent is the Cape Gate Negotiated Provident Fund (and NBC Fund Administration Services (Pty) Ltd ("Administrator")). The Fund is approved and registered and is consequently subject to the provisions of the PFA.

 

[3]               The Second Respondent is the Adjudicator, a statutory body as defined in Section 1(1) of the PFA and is established in terms of the PFA.

 

[4]               The parties have waived their right to a formal hearing. This is accordingly the Tribunal's decision to adjudicate the Reconsideration on the papers as they stand. The parties are unrepresented and are accordingly exempt from filing heads of argument by virtue of Rule 61 of the Consolidated Rules issued in terms of Section 227 of the Financial Sector Regulation Act, 9 of 2017.

 

CONDONATION

 

[5]               The Applicant filed his complaint with the Adjudicator pertaining to the distribution of the death benefit of his father by the Second Respondent on 13 April 2023.

 

[6]               After to-ing and fro-ing the Adjudicator issued her order dismissing the complaint on 27 October 2023. The Applicant claims he only received notification thereof on 05 February 2024. However, in Second Respondent's Further Reasons in terms of Rule 13 of the Financial Services Tribunal rules on 17 April 2024, Atlegang Tshidi, Junior Assistant Adjudicator, showed convincingly that the determination was sent and received by the Applicant on 27 October 2023. Even if Applicant received the notification on 05 February 2024, he still had ample time to prepare and he prepared well. No prejudice or unfairness emanates from the process, if that is the point he wished to make.

 

[7]               The Applicant signed his Form "A" Application for Reconsideration in terms of Section 230 of the FSR Act on 15 March 2024. It was not accompanied by any condonation application as stipulated in Section 230(1) read with section 230(2)(b) of the said FSR Act, which prescribed that this be done within 60 days, "or such longer period as may on good cause be allowed."

 

 

[8]               This is our concern, though. Atlegang Tshidi sent an email to "t[…]@gmail.com" on Monday, Feb 05, at 8:55 AM which reads:

 

"We refer you to the above subject matter and to the telephonic discussion we had earlier today.

 

As requested, please find attached our determination for your attention. Kind Regards

 

Atlegang Tshidi

 

Junior Assistant Adjudicator."[1]

 

This is done on the Adjudicator's official Letter Head. The "above subject matter" referred to is: "GP/00097318/2023 K[...] Tw E/L Aw."

 

[9]               This is the document that the Applicant latches on on his claim that he only received the Adjudicator's determination on 05 February 2024. The safest manner on approaching this dichotomy is to accept that this was a resent determination as several imponderables attaches to the first dispatched email on 27 October 2023 by Tshidi, whose word is not doubted.

 

[10]      However that may be, we cannot ignore the communication of 05 February 2024. If we consider it, as we may have to, in that event the 60 days had not lapsed between 05 February 2024 and when the Applicant lodged his Reconsideration application on 15 March 2024. What it then boils down to is that he did not have to apply for condonation. It needs mentioning that the Respondents have not asked that the Applicant be non-suited for approaching the Tribunal out of time. However, this does not preclude the Tribunal from raising the failure to comply with its Rules mero motu to protect the integrity of the institution.

 

 

THE FACTS AND HISTORICAL BACKGROUND

 

[11]                  The Applicant is one of the four siblings whose father, Mr A[...] W[...] K[...], worked for the First Respondent ("Cape Gate") for a good number of years until his death on 06 August 2021. These children are:

 

11.1            I[...] T[...] K[...] born on 2[…]/0[…]/1980 and died on 25/04/2011, he therefore predeceased his father.

 

11.2            P[...] D[...] N[...] (born K[...] on 1[…]/0[…]/1983);

 

11.3            T[...] W[...] K[...] born on 2[…] /0[…]/1988 (Applicant); and

 

11.4            Te[...] W[...] K[...] born on 1[…]/0[…]/1992.

 

[12]                  On 14 December 2022 Cape Gate wrote to NBC Fund Administration Services and distributed (apportioned) the pension money amounting to just over R1. 5 million as follows to the beneficiaries:

 

12.1            To P[...] 30%;

 

12.2            To T[...] 30%; and

 

12.3            To Te[...] 40%.

 

[13]                  The motivation by the Chairperson and the Principal Officer of Cape Gate reads in this manner.[2]

 

"THE BOARD OF TRUSTEES OF CAPE GATE NEGOTIATED PROVIDENT FUND FINAL ALLOCATION IN THE MATTER OF DECEASED MEMBER: MR W K[...] (7[…]). DATE OF DEATH 06/08/2021.

 

The Death Claims Committee (DCC) conducted a thorough investigation, as well as interviews with members of the K[...] family, in order to determine the beneficiaries and decide on equitable distribution and the most appropriate mode of payment. Trustees considered all relevant information provided by the identified beneficiaries, who were interviewed on numerous occasions.

 

The Board is satisfied with its investigation and accordingly requests payment in this regard."

 

[14] On the same date (14/12/2022) Cape Gate notified each one of the beneficiaries of the outcome of the decision of the Board and elaborated comprehensively on a number of aspects. Of significance, for present purposes, is to note that:[3]

 

14.1            Beneficiaries only have access to information pertaining to their personal allocation under the Protection of Personal Information (POPI) Act;

 

14.2            In terms of the provisions of Section 30 of the Pension Fund Act any one of them who has a complaint against the Fund may;

 

14.2.1      Lodge a written complaint against the Fund for reconsideration by the Board of the Fund;

 

14.2.2      Such complaint shall be properly considered and replied to in writing by the Fund or employer, who participates in the Fund, and must be lodged within 30 days after the date of receipt thereof; and

 

14.2.3      If the complainant is not satisfied with the reply or does not receive any reply within 30 days after the submission of the complaint, the complainant may approach the Pension Funds Adjudicator (therefore the Second Respondent) with the complaint.

 

[15]            Emanating from the correspondence at hand the picture that emerges is that the Applicant wrote several letters to the First Respondent (Cape Gate) between 16 December 2022 and 07 February 2023, and to the NBC Fund Administration Services (Pty) Ltd on 12 March 2023[4], in essence disputing that P[...] N[...] (born K[...]) is his father's biological child and urged them to cause DNA tests (examination) be performed on her to resolve the dispute. He received no response, which is unbecoming of a statutory body or bodies on whom is reposed such immense public responsibilities. The fact that the applicant bombarded them with letters and phone calls or was an irritation is no excuse.

 

[16]            On 13 April 2023 the Applicant wrote to the Second Respondent "as a last resort after having explored all avenues and made all efforts to resolve the dispute between myself and Cape Gate Fund." [5] He points out that he even engaged the Director: Strategy and Conflict Resolution: LIVID Group (Pty) Ltd, without success. The latter in fact wrote a letter of 07 February 2023 to the Principal Officer of the First Respondent. Applicant ends his letter of complaint to Second Respondent with: "I await the Pension Funds Adjudicator's expeditious response with much anticipation."

 

It must be added that P[...] and Te[...] have expressed no qualms with the process, the decision or distribution apportionment by the First Respondent.

 

[17]            On 25 April 2023 Ms Sibongile Nkabinde, the Case Manager (Officer) and Administrator of Second Respondent, wrote to the First Respondent (and NBC Fund Administration Services (Pty) Ltd) stating that the Applicant has lodged a complaint in terms of Section 30A of the Pension Funds Act, 24 of 1956 (Chapter VA of the Act). Ms Nkabinde's letter is very informative. She wrote:

 

"We attach a copy of the complaint for your consideration and detailed response.

 

It is noted that this complaint remained unresolved after first being referred to you for direct resolution with the complainant.

 

We are currently investigating the complaint and draw your attention to section 30E (1) of the Act which provides that after investigating the complaint, the Adjudicator may make an order which any court of law may make. Further, in terms of section 300 of the Act, 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 may be enforced as such by a writ or warrant of execution.

 

It is therefore imperative that you answer the complaint fully and within the time frame provided in this letter.

 

Your response to the complaint must be submitted by close of business on 26 May 2023. In your response please deal with the allegations and submissions made in the complaint and respond to them fully together with the relevant supporting documentation.

 

Kindly also furnish us with all the relevant documentation with a bearing on the complaint, including a full set of rules of the fund if applicable: Trustees resolutions; contributions history; and benefit breakdown.

 

When drafting your response, we request that you take account of the following:

 

1.               Application for extension of time limits must be submitted in writing to the Adjudicator and fully motivated.

 

2.               Each complaint is determined on its merits by considering the submission made by the parties to the complaint. The Adjudicator requires you to submit a response on the merits of the complaint in addition to any preliminary points you may raise, such as time barring in terms of section 30 I, locus standi, validity of a complaint in terms of the definition of the Act, etc.

 

3.               In your response, please provide all relevant information and supporting documents to the subject of the complaint.

 

Please ensure that a copy of your response is also forwarded to the complainant and any other party to the complaint." [6]

 

[18]            Unsurprisingly, no response was forthcoming from the First Respondent and justified Second Respondent to issue this stern ultimatum on 31 May 2023:

 

"Our letter of 25 April 2023 requesting a response in respect of the abovementioned complaint refers.

 

Our Office is yet to receive a response from yourselves following the expiry of the initial period that you were granted. You are hereby granted a further opportunity to file a response to the complaint by 14 June 2023. The complaint has been attached for ease of reference.

 

Further note that this is the final opportunity for you to file a response. You are reminded that determinations by the Adjudicator may be enforced in the same manner as a court order. Therefore, it is in your interest to submit a response to the complaint as well as to the interest of justice in general, that all parties be heard before a decision is made.

 

Should you fail to file a response as per extended date, the matter will be finalized without your input." [7]

 

[19]      On 13 June 2023 a day before the set deadline, Ms Carla Schoeman,[8] Senior Legal Advisor, NBC Group Legal & Compliance, remarkably responded with such clarity and detailed exposition which begged the question why it could not have been done much sooner. By virtue thereof that the exposition, and more pertinently the interpretation of Section 37C of the Act was so succinctly made that it would be superfluous to scrutinize or analyse it on paper because the Second Respondent endorsed it in substance in her adjudication, adverted to below.

 

[20]      It is convenient at this stage to deal with this salient aspect. The deceased member's Beneficiary Nomination Form reflects that the Applicant (1988) and Te[...] W[...] K[...] (1992) were to receive 50% each of their father's death benefit. When this came to light P[...] (1983) disclosed that she and her late brother I[...] T[...] K[...] (1980) are the deceased's children with their mother Anna Disebo K[...] (born Moncho). Pursuant to this claim First Respondent delved into its files and discovered that this was indeed so. They were born from the deceased's first marriage. The decree of divorce on file shows that the couple was divorced on 16 July 1986, some two years before Applicant was born. The Applicant and Te[...] are the deceased's children from his second marriage.

 

[21]            The purpose for submitting this documentation to his employer by none other than the deceased is self-evident, that he had dependents, his eldest two children. The documents were not furtively sneaked in and their authenticity has not, and cannot, be disputed. In the circumstances, we are not surprised that neither the First nor Second Respondent required P[...] to undergo a paternity test; if they could even legally do so without a court order. The applicant ought to hang his head in shame for egregiously dishonouring the memory of his father and impugning the dignity and birthright of P[...]. He is implacable. His motivation could only have been selfishness and greed.

 

THE APPROACH BY THE ADJUDICATOR (SECOND RESPONDENT)

 

[22]            As regard the allocation of death benefits Second Respondent properly had regard to Section 37C(1) of the Pension Funds Act. It provides:

 

"37C Disposition of pension benefits upon death of member

 

(1)            Notwithstanding anything to the contrary contained in any law or in the rules of a registered fund, any benefit (other than a benefit payable as a pension to the spouse or child of the member in terms of such rules of a registered fund, which must be dealt with in terms of the rules) payable by such a fund upon the death of a member, shall, subject to the pledge in accordance with section (19)(5)(b)(i) and subject to the provisions of section 37A(3) and 370, not form part of the assets in the estate of such a member, but shall be dealt with in the following manner:

 

(a)                    If the fund within twelve months of the death of the member becomes aware of or traces a dependant or dependants of the member, the benefit shall be paid to such dependant or, as may be deemed equitable by the board, to one of such dependants or in proportions to some of or all such dependants."

 

[23]            Reverting to the Beneficiary Nomination Form and having regard to Section 37C(1), quoted above, Second Respondent had this to say at para 5.11 of her adjudication:

 

"The complainant is aggrieved that the fund did not allocate death benefit as stated on the deceased nomination form. However, it should be noted that the board is not bound by a nomination form. A nomination form serves merely as a guide to assist it in the exercise of its discretion (see Mashazi v African Products Retirement Benefit Provident Fund (2002) 8 BPLR 3703 (W) at 37051 - 3706C). The object of section 37C of the Act is to ensure that persons who were financially dependent on the deceased are not left destitute by the death of the member (see Kaplan and Another NNO v Professional and Executive Retirement Fund and Others [2001] 10 BPLR2541 (W) at 25448-C). Where there are dependants and nominees, the board must consider an equitable distribution."[9]

 

See more authoritatively: Kaplan and Another NNO v Professional and Executive Retirement Fund and Others 1999 (3) SA 798 (SCA) Howie JA, (Hefer, Grosskopf, Plewman and Streicher JJA concurring) confirming the decision of the WLD cited above.

 

[24]            The Adjudicator concluded at paras 5.14 and 5.15:

 

"5.14 The fund's task in distributing a death benefit in terms of section 37C of the Act is to identify all potential beneficiaries (see Van Schalkwyk v Mine Employee's Pension Fund and Another [2003] BPLR 5087 (PFAJ at paragraph 15). The board of the fund is vested with discretionary powers to decide on an equitable distribution of the death benefit. It is only in cases where it has exercised its powers unreasonably and improperly or unduly fettered the exercise thereof, that its decision can be reviewed (see Mongale v Metropolitan Retirement Annuity Fund [2010] 2 BPLR 192 (PFAJ. The duty of the Adjudicator is not to decide what is the fairest or most generous distribution, but rather to determine whether the board has acted rationally and arrived at a proper and lawful decision (see Ditshabe v Sanlam Marketers Retirement Fund & Another (2) [2001]10 BPLR 2579 (PFA), at 2582 F-G).

 

5.15 In light of the above, the Adjudicator is satisfied that the board of the fund took into account relevant factors and did not abuse its discretion in the allocation of the deceased's death benefit. The death benefit was properly allocated to the dependants of the deceased and there is no reason to set aside the board's decision. Thus, the complaint falls to be dismissed."

 

[6] ORDER

 

6.1 In the result, the complaint cannot succeed and is therefore, dismissed." [10]

 

CONCLUSION

 

[25]            We cannot find any misdirection in the analysis, the reasoning, the process and conclusion of the Second Respondent. In this Reconsideration, having had regard to the genesis of the matter to its conclusion, a conspectus of the factors and evidence we are satisfied that there is no substance in the complaint and therefore no grounds to interfere with the decision of the Adjudicator.

 

ORDER: The application for reconsideration is dismissed.

 

Signed on 5 August 2024.

 

FD KGOMO (MEMBER) obo self and LTC HARMS (CHAIR)

 

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