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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

IN THE FINANCIAL SERVICES TRIBUNAL

 

CASE NO: PFA68/2023

 

In the matter between:
P FORCE SECURITY SERVICES (PTY) LTD	APPLICANT
AND
TS MOFOKENG	1ST RESPONDENT
M LUKHAIMANE N.O.	2ND RESPONDENT
THE PRIVATE SECURITY SECTOR PROVIDENT
FUND	3RD RESPONDENT

 

Tribunal panel:

 

MF Legodi (Chairperson), C Woodrow SC and Z Nkubungu-Shangisa.

 

For the applicant:

 

S Swiegers instructed by Lee & Mcadam Attorneys.

 

For the second respondent:

 

I Currie instructed by Rooth & Wessels Inc.

(Submissions made pursuant to a directive from the Tribunal requesting same regarding certain aspects in the matter)

 

Hearing:

 

24 June 2024.

Handed down: 18 July 2024

 

Summary:

 

Application by Employer for the reconsideration of a Determination of the Pension Fund Adjudicator duly issued on 31 January 2019 pursuant to a complaint filed in June 2018. Application grossly out of time and dismissed.

 

DECISION

 

[1]                Before us is a reconsideration application filed with the Tribunal on 17 October 2023 after the applicant had obtained an urgent interdict in the Johannesburg High Court staying the writ of execution issued by the Registrar of the Johannesburg High Court as contemplated in terms of section 30O of the Pension Funds Act, Act 24 of 1956 (the “Act”).

 

[2]                Subsection (2) of section 30O of the Act provides that 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 as contemplated in section 30P has been lodged. The determination in this case was issued on 31 January 2019.

 

[3]                The ‘notice of determination’ containing the determination as contemplated in section 30M of the Act was signed by the Adjudicator on 5 February 2019 and became a deemed civil judgment of the Johannesburg High Court on 20 February 2019 under case number 19/6262 in terms of section 30O (1). Subsection (1) of section 30O provides that 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. The Johannesburg High Court is such court in the instant case.

 

[4]                On 18 April 2023 a writ of execution was issued as contemplated in section 30O (2) of the Act. Subsequent thereto, the writ was executed or served by the Sheriff of the High Court on 11 September 2023. This prompted the applicant to approach the Johannesburg High Court on an urgent basis for the stay of the writ of execution.

 

[5]                The order staying the writ was made on 3 October 2023 and is crafted as follows:

 

“1. That the forms and procedures provided in the Uniform Rules of Court are dispensed with and that the hearing of this matter is one of urgency in terms of Rule 6(12)(a).

 

2.               The writ of execution under the above case number and Order granted on 5 February 2019 is hereby stayed until the conclusion of the Rescission Application for the rescission and setting aside of the Order granted on 5 February 2019 provided that the Applicant complies with paragraph 3.

 

3.               Paragraph 2 will operate as an interim order and the Applicant has 10 (ten) days from date of this order to launch its rescission application against the decision of the Third Respondent, failing which this order will automatically lapse.

 

4.               No order as to costs”.

 

[6]                The order was not complied with, in particular paragraph 2 of the order. Therefore, the order of 3 October 2023 automatically lapsed seen in the context of paragraph 3 thereof.

 

[7]                The applicant, instead of pursuing the application for rescission of judgment in that court, resorted to launching this application as contemplated in section 230 of the Financial Sector Regulation Act No. 9 of 2019 (“FSRA”). Subsection (1) (a) of section 230 provides that a person aggrieved by a decision may apply to the Tribunal for a reconsideration of the decision by the Tribunal in accordance with Part 4 of Chapter 15 of FSRA.

 

[8]                Subsection (2) of section 230 of the FSRA provides that the application 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.

 

[9]                In its application before us, the applicant states tersely that it ‘… could not comply with the time frames of Section 230 of the Act as it was not aware of the complaint and subsequent decision by the Second Respondent’. (our emphasis)

 

[10]            The statement above is at the heart of this application. The question is whether the statement is correct and if not whether the application can proceed on merits or on points in limine intended to be argued in these proceedings. Any finding that proves the statement otherwise, will bring the application to rest without proceeding to the issues raised by the applicant.

 

[11]            The averment made in paragraph [9] above raises two issues: First, whether it is true that the applicant was never notified of the complaint. Second, whether it is true that the applicant was never notified in time of the Adjudicator’s decision or determination of 31 January 2019.

 

[12]            The suggestion that the applicant “was not aware” of the complaint lodged with the Adjudicator, must be rejected outright as is not consistent with the facts of the case. Two letters were sent to the applicant, but both were ignored. First, on 25 June 2018 at 12:22 an email referred to as “response email to the employer” was sent. The email appears on page 17 of Part B of the application. When no response to the complaint was forthcoming, another email referred to as “follow-up to the employer”, was sent to the applicant on 30 July 2018 at 08:21. This appears on page 25 of the record of the proceedings.

 

[13]            When the attention of the applicant’s legal representative was drawn to this during the hearing of the application on 24 June 2024, he sought to suggest that he cannot be engaged on an issue that was not pertinently raised in time to comment on. But of course, it was not necessary to do so, neither can it be said that the applicant was caught by surprise. These documents form part of the record and the applicant was entitled to but failed to engage therewith.

 

[14]            It is the applicant who initiated the statement that “it was not aware of the complaint”. Despite Part B of the record of the proceedings having been provided to it well time, the applicant still elected not to correct its statement. In fact, during the hearing on 24 June 2024, the applicant despite having been engaged on the issue, did not seek to retract the statement or provide a plausible explanation for the statement. I accordingly find that the applicant knew in June and July 2018 about the complaint.

 

[16]            I now turn to deal with the question whether the applicant knew of the Adjudicator’s decision only on 11 September 2023 when the writ was served by the sheriff and if not, the consequence thereof regarding the applicant’s application.

 

[17]            Section 30M of the Act makes it peremptory for Adjudicator after having completed an investigation to 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.

 

[18]            The statement that the applicant ‘was not aware of subsequent decision’, is also devoid of the truth. Look at it this way: In paragraph 2 of the application under Part A, the applicant states as follows:

 

“2. An application is hereby noted for the reconsideration of the second respondent’s decision contained in correspondence duly issued by the second respondent on 31 January 2019”. (My emphasis).

 

[19]            True, the correspondence containing the decision was in the form of emails was not only sent to the complainant in the matter. But it was also sent to the applicant in these proceedings. The email address for the applicant appears at the end of the decision dated 31 January 2019 being an email to “The HR Manager” for the applicant.

 

[20]            It is not explained why the applicant suggests that the only time it became aware of the decision was when the writ was served by the Sheriff on 11 September 2023. Simply put, the applicant cannot have it both ways. The statement, “duly issued” on page 3, paragraph 2 of Part A of the record of the proceedings, could only have meant “duly issued” in terms of or as contemplated in section 30M of the Act. That is, the parties were duly notified of the decision in the communication of 31 January 2019 as required in terms of the legislative framework.

 

[21]            Subsequent to the hearing on 24 June 2024, the Pension Funds Adjudicator was directed to indicate when the determination was sent to the parties. The Office of Pension Fund Adjudicator was also directed to indicate whether it requests “delivery reports” and “read receipts” during its interactions with parties in matters before it, and if so, to provide any such information.

 

[22]            On 26 June 2024 a response was received from Pension Funds Adjudicator. Of relevance, the response stated follows:

 

“3. The Second Respondent’s determination was sent to all parties on 31 January 2019. According to the Second Respondent’s records, the determination was sent to the Applicant’s employee with email account m[…]@protectiveforce.co.za.

..

 

5.               The Second Respondent does not request “delivery reports” or “read receipts” during its interactions with the parties. However, in instances where the Second Respondent receives a delivery failure notification, the matter is investigated to ensure delivery of the correspondence. The Second Respondent does not have any record of a delivery failure notification received in respect of this matter”.

 

[23]        On 27 June 2024 the parties, including the applicant, were given an opportunity to comment on the response received from Pension Fund’s Adjudicator. The applicant elected not to say anything. That is perhaps understandable. Clearly the applicant is unable to deal with the truth now discovered.

 

[24]         Look at it this way: The applicant in its application for reconsideration confined itself to having complied with the 60 days’ time limit for lodging of the application as contemplated in section 230 (2)(b). Based on this version, no application for condonation was made at all. The applicant allegedly became aware of the Adjudicator’s determination on 11 September 2023. The applicant must live with this. The silence in dealing with what is quoted in paragraph [22] above, is devastating to the applicant’s application and disproves the allegation that it only became aware of the Adjudicator’s determination on 11 September 2023. I find that the applicant became aware of the Adjudicator’s determination during 2019 as per the emails that were sent to it on 31 January 2019. The application is therefore destined to be dismissed.

 

[25]            I find it necessary to deal with the essence of internal remedy process. The Constitutional Court had an opportunity to deal with the issue in the matter of Koyabe and Others v Minister for Home Affairs and Others (CCT 53/08) [2009] ZACC 23; 2010 (4) SA 327 (CC) (25 August 2009). In paragraph 35 of the judgment, it was held: “Internal remedies are designed to provide immediate and cost-effective relief, giving the executive authority the opportunity to utilise its own mechanisms, rectifying irregularities first, before aggrieved parties resort to litigation. Although courts play a vital role in providing litigants with access to justice, the importance of more readily and cost-effective internal remedies cannot be gainsaid”.

 

[26]              Section 230 of FSRA provides for such internal remedy by affording the aggrieved party an opportunity to approach the Tribunal for reconsideration. A reconsideration in terms of section 230 (1) (b) constitutes an internal remedy as contemplated in section 7 (2) of the Promotion of Administrative Justice Act. As indicated in the case of Koyabe and Others, the importance of immediate, more readily and cost-effective internal remedies cannot be gainsaid.

 

[27]              Regrettably, in the present case before us, the “immediate and cost-effective relief”, has been frustrated to the prejudice of the first respondent who in 2018 asked the Pension Funds Adjudicator to investigate his complaint against the applicant. The first respondent who is represented by the Legal Aid South Africa, is apparently an indigent person. The non-cooperation by the applicant and disregard for the requests to deal with the first respondent’s complaint followed by ignoring the determination that was brought to its attention in early 2019, can only be described as blatant abuse of the process intended to frustrate the first respondent.

 

[28]                Rushing to court on an urgent basis when the deemed civil judgment was intended to be carried out by execution of the writ, was probably a show of financial strength against an indigent person. The applicant in 2019 had an opportunity to utilise the internal mechanisms under section 230 as a means of providing litigants with access to justice the importance of which, was more readily available and cost- effective.

 

[29]             The applicant resorted to litigate and obtained the stay of execution of the writ. Along the way, having caused the order to lapse, it then reverted to the internal mechanism in section 230. It is of some relevance that in the process its version in the urgent application that it had made all payments due and would prove this in its rescission application (see inter alia par [24] and [25] of the founding affidavit in the urgent application) was not persisted with in the reconsideration application before us, the applicant rather pursuing a time barring argument. The reconsideration application was premised on the false assertion that the applicant only became aware of the Adjudicator’s determination on 11 September 2023.

 

[30]          It is expected that the parties who appear before the Tribunal for reconsideration will do so by being truthful to ensure that the process is not abused and at the same time to ensure that the integrity of the process in terms of section 230 is preserved.

 

[31]            Before I turn to the order, I find it necessary for whatever is worth, to deal with another issue that was prompted by a directive issued before the hearing on 24 June 2024. The issue was whether the decision of an Adjudicator can be entertained by the Tribunal once such a decision has become a deemed civil judgment of the court concerned and a warrant of execution has been issued as contemplated in section 30O (1) and (2) of the Pension Funds Act.

 

[32]            Section 30O deals with the enforcement of determination by making such a determination a deemed civil judgment of any court of law had the matter in question been heard by such court. On behalf of the Pension Funds Adjudicator, it was contended that once the determination is noted or registered as contemplated in subsection (1) of section 30O of the Pension Funds Act, the office of the Pension Funds Adjudicator ceases to play any role in the enforcement thereof. It is up to the beneficiary of the determination to enforce it and to obtain a writ of execution following the expiry of the 6-week period referred to in section 30O (2) of the Pension Funds Act, so was the contention on behalf of the Pension Funds Adjudicator.

 

[31] The noting of the determination as contemplated in section 30O (2) is to allow the beneficiary of a determination to enforce it by way of a writ of execution. The determination duly noted, does not become an order of court. It remains to be a deemed civil judgment and in the instant case, the Pension Funds Adjudicator did not apply for the determination to be an order of the court. This submission on behalf of the Pension Funds Adjudicator, is shared by the applicant.

 

[32]            I tend to share the same sentiments. A determination that has become a deemed civil judgment of court in terms of section 300(1), does not change the administrative character of the determination. It remains to be administrative action even after a decision by the panel of the Tribunal and thus, the reviewability of the

panel’s decision.     The right to apply for reconsideration in terms of section 230(1) remains except in instances where section 30P finds application.

 

[33]            In other words, had one found that the applicant became aware of the determination of the Pension Funds Adjudicator on 17 September 2023, the panel would have been obliged to entertain the application for reconsideration. But in the light of my earlier finding, the panel does not have to deal with and hear the application on merits or regarding the special point of prescription raised by the applicant. Simply put, the application is grossly out of time.

 

ORDER

 

The application for reconsideration is hereby dismissed.

 

Signed on behalf of the Tribunal on 18 July 2024.

 

MF Legodi

 

(Chairperson of the panel with: C Woodrow SC and Ms Z Nkubungu-Shangisa (members)).

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