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[2020] ZAGPPHC 50
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York Timber Holdings Limited v Pension Fund Adjudicator and Others (76828/2017) [2020] ZAGPPHC 50 (29 January 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
Case No: 76828/2017
29/1/2020
In the matter
between:
YORK
TIMBER HOLDINGS
LIMITED
Applicant
(Registration
Number: 1916/004890/06)
and
THE PENSION
FUND ADJUDICATOR
First Respondent
THE HOSPITALITY
& GENERAL PROVIDENT FUND
Second Respondent
THE REISTRAR OF
PENSION FUNDS
Third Respondent
FINANCIAL
SERVICES BOARD
Fourth Respondent
JUDGMENT
KUBUSHI J,
[1]
This is an application seeking to review
and set aside the determination of the first respondent, the Pension
Fund Adjudicator ("the
Adjudicator'') handed down on 13
September 2017 against the applicant, York Timber Holdings Limited
("York Timber") and
for an order referring the matter back
to the Adjudicator for reconsideration.
[2]
Any party who feels aggrieved by a
determination of the Adjudicator may, in terms of section 30P of the
Pension Fund Act 24 of 1956
("the Act"), within six weeks
after the date of the determination, apply to the division of the
High Court which has
jurisdiction, for relief, and shall at the same
time give written notice of his or her intention so to apply to the
other parties
to the complaint. The division of the High Court
contemplated herein may consider the merits of the complaint made to
the Adjudicator
under section 30A (3) and on which the Adjudicator's
determination was based, and may make any order it deems fit. The
process
followed for relief in terms of section 30P of the Act is one
of review. York Timber has as a result approached court for relief
in
terms of the provisions of Uniform Rule 53.
[3]
At the commencement of the proceedings,
I was informed that York Timber received the Adjudicator's
determination
per
registered
post on 29 September 2017 although the complaint in this regard was
upheld on 13 September 2017. There was, therefore,
a lapse of two
weeks which resulted in York Timber filing its application out of
time. In these papers York Timber is also applying
for the
condonation for the late filing of its founding papers. As there was
no opposition, the application for such condonation
was granted.
[4]
The answering affidavit of the second
respondent, the Hospitality & General Provident Fund ("the
Provident Fund")
was, at the time of filing, not commissioned,
but was merely signed by the deponent. However, when the matter
appeared in court
the defect had been duly rectified.
[5]
The Adjudicator's determination sought to be reviewed and set aside
emanates from
a complaint lodged by the Provident Fund against York
Timber. The Provident Fund is an approved pension fund in terms of
the Act.
York Timber joined the Provident Fund as a participating
employer on 1 October 2006 in terms of a participating agreement and
its
employees, as such, became members of the Provident Fund.
[6]
In accordance with the rules of the Provident Fund the standard
regulated minimum
contribution rate ls 7,5 per cent for the employer
and employee. Based on the provisions of the rules of the Provident
Fund titled
"supplement to agreement of participation", a
participating employer and members may commence contributing at a
lower
rate than 7,5 per cent subject to them increasing the
percentage to 7,5 per cent within a period of two years.
[7]
Pursuant to the aforesaid rules, the Provident Fund and York Timber
concluded a 'supplement
to agreement of participation' in terms of
which York Timber and its employees commenced contributing at a lower
rate of 6 per
cent. In order to ensure compliance with the
contribution rate, the parties signed a 'reminder agreement' which
required York Timber
to increase the employer/employee contribution
to 7 per cent by 1 July 2007 and should have raised the contribution
rate by 0,5
per cent to 7,5 per cent by July 2008.
[8]
Despite repeated reminders, from time to
time, from the Provident Fund requesting York Timber to increase its
rate of contribution
to the regulated minimum rate in compliance with
the 'reminder agreement', York Timber failed to do so. York Timber's
attorneys
of record instead, requested several documents and
additional information relating to the request for compliance which
was provided
to them, but no contributions were forthcoming. As a
result of such non-compliance by York Timber, the Provident Fund
lodged a
complaint with the Adjudicator.
[9]
In essence, two complaints pertaining to
the 'supplement to agreement of participation' and the 'reminder
agreement' were lodged.
Both complaints concerned the failure by York
Timber to pay provident fund contributions for the period September
2016 to date
of the respective complaints to the Provident Fund and
to provide the attendant contribution schedules.
[10]
The first complaint was lodged on 6 April 2016 and the determination
thereof was made on 27 October
2017. The factual background to the
complaint was York Timber's refusal and/or failure to pay over
contributions of about 331 of
its employees who were alleged to be
members of the Provident Fund. In response to the said complaint,
York Timber argued that
the 331 employees whose contribution was not
remitted to the Provident Fund chose to cease contributing to the
Provident Fund effective
from September 2016, thus, they were no
longer members of the Provident Fund as they had joined other funds
in which York Timber
was a participant.
[11]
The issue for determination in this
complaint was, therefore, whether the members of the Provident Fund
(that is, the 331 employees
of York Timber who it was alleged failed
to pay over contributions to the Provident Fund), were entitled to
transfer to other approved
funds in which York Timber participated.
The Adjudicator in this regard ruled in favour of York Timber and
made an order that allowed
the employees in question to transfer to
other approved funds of their choice in which York Timber
participated effective from
September 2016. The Adjudicator held
further that York Timber cannot be held liable for contributions of
these members from September
2016.
[12]
The second complaint, which is pertinently the subject matter of this
application, was lodged
on 5 May 2017 and the determination thereof,
as already stated, was made on 13 September 2017. The complaint
pertained specifically
to the failure by York Timber to pay increased
monthly contributions (at an agreed increased percentage rate), in
accordance with
the 'supplement to agreement of participation' and
the 'reminder agreement'. The issue that fell for determination, in
this regard,
was whether or not York Timber failed to pay
contributions to the Provident Fund at the required rate as agreed in
terms of the
'supplement to agreement of participation' and its
rules.
[13]
In the complaint, the Provident Fund requested that York Timber be
ordered to correct the breach
by making good on lost savings by
members from the date of maturity of the supplemental agreement and
to pay over the difference
made in the members' fund credits from the
shortfall in contributions and lost interest allocations over time.
The Provident Fund
indicated that York Timber was then in arrears
with contributions in the amount of R1 235 675, 50 for a period of
ten (10) years
which was made up by the increase of the 6 per cent
rate to 7 per cent during the period July 2007 to June 2008 and the
increase
of the rate 7 per cent to 7, 5 per cent during the period
July 2008 to July 2017.
[14]
The Adjudicator notified York Timber
about the complaint lodged against it by the Provident Fund and
afforded them thirty days within
which to respond. However, despite
being afforded several opportunities, York Timber failed and/or
neglected to file a response
to the Provident Fund's complaint. As a
result, the Adjudicator proceeded with the hearing of the complaint
on the available evidence.
[15]
In the determination made by the
Adjudicator, York Timber was ordered to increase the contribution
rate to 7,5 per cent in respect
of employer and employee
contributions from 1 July 2007 to date of the determination as set
out in the schedule to the Provident
Fund's rules; and to pay to the
Provident Fund the arrear contributions together with late payment
interest as computed by the
Provident Fund within six weeks of the
determination. The Provident Fund was, on the other hand, ordered to
compute York Timber's
arrear contributions from July 2007 to date of
the determination, together with late payment interest owed by it
calculated in
accordance with section 13A(7) of the Act, within two
weeks of the determination; to transmit the computation to York
Timber within
three days of completing them; to allocate the
contributions paid by York Timber to the members' fund credits and
update their
records within two weeks of receiving payment from York
Timber; and to provide the members affected with a breakdown of their
contributions
and benefit statements, within ten weeks of the
determination. This is the determination by the Adjudicator that York
Timber seeks
to have reviewed and set aside.
[16]
In its case, York Timber concedes that
it is in a financial position to pay the amounts that are in fact due
and payable and that
there was no wilful and deliberate failure on
its part to pay the contributions that were due in terms of the
Provident Fund's
grievance. York Timber's complaint, however, is that
no calculation formed part of the record filed by the Provident Fund
and despite
that a monetary award was made. It, thus, appears as if
the award was arbitrary and at the very least failed to strike
equilibrium
between the rights of York Timber and that of the
Provident Fund
alternatively,
the
Adjudicator made a decision that no reasonable decision maker would
have made in the circumstances and on facts that do not
rationally
justify the decision. The result, accordingly, is that there was a
material misdirection by the Adjudicator and lack
of rationality as
well as an explanation for the failure by York Timber to attend to
the process.
[17]
York Timber sets out two main grounds of
review in its founding papers and as expounded in the heads of
argument as:
17.1
the lack of the necessary jurisdiction
by the Adjudicator in the light of the provisions of section 30H read
with section 30I of
the Act, to order compliance with the increases
for anything older than three years from the date on which the
complaint was received
from the Provident Fund, by York Timber;
17.2
the arbitrary calculation of the amount
owed due to lack of information (list of membership) from York Timber
about the number of
employees that elected to move from the Provident
Fund to another fund during the period of September 2016 to December
2016 (annexure
"YK1"), during February 2010 (annexure
"YK2") and during 2010 (annexure "YK3").
[18]
Consequently, I find that the main issue that falls for adjudication
is whether the determination
of the Adjudicator dated 13 September
2017 should be set aside and be referred back to the Adjudicator for
reconsideration. Underlying
the said question are two issues, namely,
whether the Adjudicator had jurisdiction to make a determination in
respect of that part
of the Provident Fund's complaint which relates
to non-payment of contributions for the three years prior to 4 May
2017; and in
respect of the award, whether the actual membership of
the Provident Fund at the appropriate points in time were considered
and
the amounts and interest due correctly calculated.
[19] Counsel for
the Provident Fund conceded in argument in court that the amount for
the contributions
were not correctly calculated as not all the
employees but some of them owed the contributions. He, however,
requested that an
order be made directing the parties to compute the
debt together rather than sending the matter back to the Adjudicator
for reconsideration.
What remained for adjudication was only the
question of the jurisdiction of the Adjudicator in respect of some of
the contributions
which are alleged by York Timber to have prescribed
and whether this court should, if the first issue is found in favour
of Provident
Fund, make an order directing the parties to compute the
debt together or refer the computation back to the Adjudicator.
[20] I deal
hereunder with the two questions in turn.
Whether the Adjudicator had the jurisdiction
to make
a
determination
in respect of claims older than three
years?
[21]
It is not is dispute that the
Adjudicator is a creature of statute and shall not in terms of the
Act investigate or make determination
of a prescribed act or
omission. It is also not in dispute that at the time of determination
the Adjudicator was aware that the
complaint was lodged more than
three years following the cause of action. Thus, in her determination
the Adjudicator made the following
finding on the issue of
prescription:
"Although the complaint was lodged more
than three years following the cause of action, the respondent's
default is continuous
and it remains
a
participating employer in the
complainant. It
is
clear
that the employees of the respondent who are members of the
complainant continue to be prejudiced by the non-payment of
contributions
at the correct rate. Further, the facts indicate that
the complainant continues to engage the respondent regarding the
payment
of contributions at the correct rate by sending reminder
letters, which includes the follow-up it made with its attorneys on 8
February 2017 and 14 March 2017. Thus, in light of the above, the
complaint is not time-barred in terms of section 301 (1) of the
Act."
[22]
York Timber's case raises a technical
grievance of lack of jurisdiction and/or prescription. York Timber
submits in its papers that
a large portion of the claim by the
Provident Fund as awarded by the Adjudicator had become prescribed
and ought not to have been
allowed, irrespective of the merits of the
claims and/or complaint. It submits further that all payments claimed
for contributions
payable in terms of the participation agreement
older than three years, whether it is from the employer or the
employee became
prescribed in the light of section 30H read with
section 30I of the Act. Consequently, the Adjudicator lacked the
necessary jurisdiction
to order York Timber to comply with the
increased contributions preceding three years from the date on which
she received the Provident
Fund's complaint.
[23]
The proposition by York Timber's counsel
is that each act of non-payment of the increased monthly contribution
in respect of a particular
member, constitute a separate and distinct
debt which became due as contemplated in the
Prescription Act 68 of
1969
. Prescription, according to counsel, began to run on each of
such debt when the increased contribution was not paid to the
Provident
Fund. Counsel relied in his argument on the provisions of
section 301 (1) of the Act which prescribes the period of
prescription
as three years.
[24]
To interrupt the running of prescription
for purposes of the Act, and to vest the Adjudicator with the
necessary jurisdiction and
powers of investigation, the complaint of
the Provident Fund should have been received by the Adjudicator
within three years of
each of the debts having become due. As such,
the Adjudicator should have refrained from dealing with that part of
the Provident
Fund's complaint which related to non-payment of
increased monthly contributions prior to 4 May 2017. The Provident
Fund's complaint
was received by the Adjudicator on 5 May 2017. The
contention is that the Adjudicator simply lacked jurisdiction to
investigate
the non payment of contributions which occurred more
than three years prior to receipt of the complaint by the
Adjudicator,
that is, prior to 5 May 2017.
[25]
Counsel's proposition is that the
Adjudicator's finding that although the complaint was received
"..
.more than three years
following the cause of action, the [applicant's] default
is
continuous ... ",
is
without any legal and/or factual basis and the Adjudicator failed to
apply the law as enunciated in
Old
Mutual Life Assurance
Co.
(South Africa) Ltd v Pension
Funds Adjudicator and Others
2007
(3) SA 458
(C). According to counsel, the finding by the Adjudicator
that the Provident Fund "...
continues
to engage the [applicant] regarding the payment of contribution at
the correct rate by sending letters..."
is
irrelevant and that it is simply not the law that the sending of
'reminder letters' to a debtor, interrupts the running of
prescription.
[26]
It is the Provident Fund's case that even though the cause of action
in this matter arose more
than three years before its complaint was
filed with the Adjudicator, and as articulated by the Adjudicator in
her determination,
York Timber remains a participating employer in
the Provident Fund, thus York Timber's default is continuous.
Therefore, due to
such continuous default, prescription in this
matter is interrupted and as such, section 30I (1) of the Act does
not apply. The
contention is that York Timber continues to be in
default in that it has failed to make the contributions as
per
the
supplement to agreement of participation.
[27] In the heads
of argument, the Provident Fund's counsel sets out the basis for the
interruption
of prescription in this matter as firstly, the failure
by York Timber to increase its contribution rate to 7,5 per cent
which resulted
in the continuous default by York Timber and the fact
that York Timber remained a participating member in the Provident
Fund. Secondly,
reminder letters were sent to York Timber's attorneys
regarding payment of the contributions at the correct rate.
[28] Section 30I
which deals with the time limit for lodging complaints, provides that
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 her or him in writing.
The provisions of the
Prescription Act relating
to a debt apply in
respect of the calculation of the three year period.
[29] The question
of prescription relating to pension funds was dealt with in the
unreported judgment
of the Eastern Cape Division in
The
Municipal
Workers Retirement Fund v Ndlambe Local Municipality
case no.
4884/2017 heard on 7 November 2018 and delivered on 22 November 2018.
In that judgment the court relying on the judgment
of the Supreme
Court of Appeal in
Roestorf and Another v Johannesburg Municipal
Pension Fund and Others
2012 (6) SA 184
(SCA), when dealing with
the issue of prescription expressed itself as follows:
"[5] A
number of grounds of resistance of the defence of prescription were
raised but I shall
deal with only one, which in my view is
dispositive of this defence. Counsel for the Fund referred me to the
judgment in
Roestorf and Another v Johannesburg Municipal Pension
Fund and Others
2012 (6) SA 184
(SCA). In this matter the two
appellants, who were members of the first respondent, had been
medically boarded in 1995. Their pensions
were paid to them monthly
but years later they challenged the calculation of their retirement
benefits and in 2006 filed a complaint
with the Pension Fund
Adjudicator, who upheld their complaint that their retirement
benefits had been incorrectly calculated. The
first respondent was
ordered to pay the revised pension and arrears together with
interest. The first respondent approached the
High Court to review
and set aside this determination. The High Court set aside the
determination and found,
inter alia,
that the appellants'
claim in reconvention for a correction of their pension fund
entitlement based on an incorrect computation
had been extinguished
by prescription. On appeal, Heher JA dealt with the question of
prescription as follows at paragraph [16]
to [20]:
'[16] So technical an
avoidance of correcting a manifest injustice may be regarded as
morally questionable.
It is also unsound according to principles of
Jaw.
[17] it is no
doubt possible and - perhaps - correct to regard each incorrect
monthly payment as a
breach of contract by the Fund which gives rise
to an independent cause of action and results in a series of debts
arising from
month to month. See in this regard
Barnett and Others
v Minister of land Affairs and Others
2007 (6) SA 313
(SCA)
(2007
(11) BCLR 1214)
paras 20- 21 and the cases there cited. In such an
event each cause would prescribe three years from the date that it
arose. I
prefer, however, to approach the case from a different
perspective.
[18] On
retirement the appellants qualified for and were the recipients of
pensions justified by their
total incapacity to perform their duties
in the service of the City. Their pension entitlement was an
annualised sum (annuity)
paid monthly to each of them. The Fund
commenced such payments in 1995 and has done so ever since. The only
rationale for such
payments was the rules of the Fund to which the
appellants had been contributing members. However, each payment
constituted a tacit
acknowledgement of the Fund's obligation to pay
according to its rules. For the purposes of the
Prescription Act that
obligation was the 'debt' owed to and claimable by the appellants.
[19]
Section 14
of the
Prescription Act provides
:
'(1) The
running of prescription shall be interrupted by an express or tacit
acknowledgment
of liability by the debtor.
(2) If the
running of prescription is interrupted as contemplated in subsection
(1), prescription
shall commence to run afresh from the day on which
the interruption takes place or, if at the time of the interruption
or at any
time thereafter the parties postpone the due date of the
debt from the date upon which the debt again becomes due.'
In
Agnew v Union and South West Africa
Insurance
Co
Ltd
1977 (1) SA 632A
this court approved the
dictum of Broome JP in
Petzer v Radford (Pty) Ltd
1953 (4) SA
314
(N) at 317H:
To interrupt prescription an acknowledgment by
the debtor must amount to an admission that the debt is in existence
and that he
is liable therefor.'
The Fund has satisfied both requirements each
month as 1t has paid the appellants' pensions pursuant to the rules.
The consequence
has been a continuing and on going interruption
of prescription in relation to every amount each appellant was
entitled to
claim as his correctly calculated benefit. The fact that
the Fund has each month paid a lesser amount and contended
consistently
that that amount and no more represented the correct
computation of its obligation under the rules does not change
matters. As
Van Heerden J explained in
Erasmus v Grunow en 'n
Ander
1978 (4) SA 233
(0) at 244A - D;
'Na woordlui vereis art 14 (1) egter nie dat
die skuldenaar ten volle aanspreeklikheid moet erken. Die skuldenaar
wat erken da thy
vir 'n gedeelte van die skuld aanspreeklik is, erken
da nook steeds aanspreeklikheid vir of ten opsigte van daardie skuld.
Neem
bv die geval waarin die skuldenaar, wat 'n motorcar vir R1000
aangekoop het, die kooptransaksie erken maar die houding inneem dat
die koopprys slegs R900 bedra. Die skuld voer 'n objektiewe bestaan
en word, behlawe uit 'n bewysoogpunt, nie gerrak dear die skuldenaar
of skuldeiser se seining of betwisting van die presiese omvang of
terme daarvan nie. In die gegewe voorbeeld erken die skuldenaar
die
skuld en betwis slegs die omvang daarvan. Anders gestel, erken hy
aanspreeklikheid ten opsigte van die skuld, maar stel hy
die omvang
van sy aanspreeklikheid in geskil. Oak die skuldenaar wat beweer da
thy reeds gedeeltelik presteer het, erken aanspreeklikheid
teenoor
die skuldeiser ten opsigte van 'n bepaalde skuld. Sekerlik kan nie in
een van hierdie gevalle gese word dat die skuldenaar
aanspreeklikheid
ontken nie.'
Moreover, as the learned judge further pointed
out - ibid at 244E - 245H - the wording of
ss 14
(1) and
15
(1) of
the
Prescription Act leads
to the conclusion that the legislature
intended that a partial acknowledgement of a debt should have the
effect of interrupting
prescription in respect of the whole debt.
(See also
Solomons v Multilateral Motor Vehicle Accident Fund and
Another
1999 (4) SA 237
(C).)
[20] Thus it is
that in the circumstances of the present case the Fund has by its
repeated payments
to the appellants ensured that their claims to a
correction of their entitlements have been protected against
prescription. In
the present instance that applies not only to that
part of the claim that was included in the complaint to the
adjudicator but
also to the claims which first surfaced in the
counter-application in 2010."
[6]
In my view this reasoning and conclusion applies in the present case.
The Municipality paid contributions monthly for the period in
question in terms of
section 13A
(1) of the PFA, and thereby
acknowledged this statutory obligation . The fact that there was a
shortfall and that it believed that
it was paying the correct amounts
each month does not detract from this acknowledgement. It follows, as
stated by Heher JA, that
there has been a continuing and on-going
interruption of prescription in relation to every amount which the
Municipality was obliged
to pay to the Fund.
[7]
It was submitted that the present matter is distinguishable from
Roestorf,
because in
Roestotf
there was a dispute about
the correct calculation of benefits, whereas in the present matter
there is no dispute about the amount
of the contributions which
should have been paid. I do not think that this difference disturbs
the underlying reasoning in
Roestorf.
There was an
acknowledgement of liability for a portion of the debt, whatever the
cause of the shortfall, and this was sufficient
for an interruption
of prescription. The defence of prescription therefore cannot
succeed.”
[30]
Similarly, it is my view that the
reasoning and conclusions reached by the court in
Ndlambe
Local Municipality
are apposite
in this instance.
[31]
As a point of departure, York Timber is
correct to say that each incorrect monthly payment of the
contributions was a breach of
contract by it which gave rise to an
independent cause of action and resulted in a series of debts arising
from month to month.
Ordinarily such debts would prescribe if they
arose more than three years before the complaint was lodged with the
Adjudicator
as is the case in this instance.
[32]
However, York Timber's supposition does
not find application in the circumstances of the facts in this
instance. The reason being
that prescription was interrupted. The
rationale of the Provident Fund's argument that prescription was
interrupted by the reminder
letters sent by it to York Timber is
incorrect. What is correct, as argued by York Timber, is that
prescription could have been
interrupted if it (York Timber) had
acknowledged the debt, which it claims it did not acknowledge.
[33]
It is, however, common cause that York Timber paid monthly
contributions for itself and its employees
to the Provident Fund. The
rationale for such payment was the rules of the Provident Fund to
which York Timber continued to participate
and its employees were
members. Following on the decision in
Ndlambe Local
Municipality
and as supported by
Roestorf,
each
such contribution paid constituted a tacit acknowledgement of York
Timber's obligation to pay according to the rules of the
Provident
Fund; and for the purposes of the
Prescription Act that
obligation
was the debt owed to and claimable by the Provident Fund.
[34]
As has been held in
Roestorf,
a partial acknowledgement of a
debt has the effect of interrupting prescription of the whole debt,
consequently, by continuing to
pay the contributions, even though at
a reduced rate, York Timber acknowledged that it was liable to pay
such contributions. Therefore,
each month that it paid the
contributions to the Provident Fund, York Timber acknowledged its
obligation to the Provident Fund.
The consequence of such payments
have been a continuing and on-going interruption of prescription in
relation to every amount which
York Timber failed to pay, that is,
the difference between the amount of contributions it paid and the
amount made up by the increased
rate of the contributions.
[35]
I hold, therefore, that because there
was an acknowledgement of liability by York Timber for a portion of
the contributions, whatever
the cause of the shortfall, this was
sufficient for interrupting prescription. As a result, under such
circumstances York Timber's
grievance of prescription will not
succeed. It, thus, means that the Adjudicator had the necessary
jurisdiction to hear and determine
this matter.
Whether the matter should be referred back
to the Adjudicator for reconsideration?
[36]
The Provident Fund concedes in its
papers that the Adjudicator is indeed the appropriate forum wherein
matters such as these ought
to be adjudicated but argues that there
is no need to refer the matter back to the Adjudicator as the matter
has already been adjudicated
upon and a determination made. Referring
the matter back to the Adjudicator would, according to the Provident
Fund's counsel, be
a waste of time and resources.
[37]
In my understanding of the papers filed
of record, the main reason why York Timber seeks an order that the
matter be referred back
to the Adjudicator is because of its lack of
participation during the hearing before the Adjudicator. However,
there is actually
no need for this matter to be adjudicated afresh on
the merits as the merits have been conceded. It is not York Timber's
case that
it is not liable to pay the contributions. Its case is only
that the computation of the award made is not correct a fact
that
has been admitted by the Provident Fund. What remains to be
determined is the number of York Timber's employees who were members
of the Provident Fund as at September 2017 for the computation of the
contributions and interest due and payable, that is, the
computation
of the benefits which the members accumulated whilst under the
membership of the Provident Fund.
[38]
In the light of the Provident Fund's
concession that the number of employees used to compute the award was
not correct, I am inclined
to agree with York Timber that the matter
should be remitted to the Adjudicator for a fresh computation of the
award. My view is
that ordering the parties to do the calculation
will create challenges of its own. The Adjudicator is better placed
to resolve
such challenges particularly in circumstances where a
dispute may arise as a result of the parties not being in agreement
about
the number of employees.
[39] York Timber
has been substantially successful in this application and is thus
entitled to be
awarded costs on a party and party scale.
[40]
As a result the following order is
granted:
1.
The determination of the first
respondent dated 13 September 2017 ln terms of section 30M of the
Pension Funds Act 24 of 1956 ("the
Act"), is reviewed and
set aside in terms of section 30P of the Act read with rule 53 of the
Uniform Rules of Court and replaced
by the following order:
"1.1 The
respondent is ordered to increase the contribution rate to 7, 5 per
cent in respect of employer
and employee contributions from 1 July
2007 to date as set out in the schedule to the complainant's rules;
1.2
The parties are ordered to compute the
respondent's arrear contributions from July 2007 to date, together
with late payment interest
owed by it calculated in accordance with
section 13A (7) of the Act, within two weeks of this order;
1.3
The parties are ordered to transmit the
computation in 1.2 to the Adjudicator for a final determination of
the award;
1.4
The respondent is ordered to pay to the
complainant the arrear contributions together with late payment
interest as computed in
accordance with paragraph 1.2 above, within
six weeks
after
the final determination by the Adjudicator;
1.5
The complainant is ordered to allocate
the contributions paid by the respondent to the members' fund credits
and update their records,
within two weeks of receiving payment from
the respondent; and
1.6
The complainant is ordered to provide
the members affected with a breakdown of their contributions and
benefit statements, within
ten weeks of the final determination by
the Adjudicator."
2.
The matter is referred back to the first
respondent for computation of the award and a final determination
thereof.
3.
The second respondent is ordered to pay
the costs of this application on a party and party scale.
E.M
KUBUSHI
JUDGE OF THE HIGH COURT
Appearance:
Applicant's
Counsel
: Adv. Y. Coertzen
Applicant's
Attorneys
: Van Der Merwe & Associates
First
Respondents' Counsel
: Adv. A. A. Milazi
First
Respondents' Attorneys
: TK Segodi
Attorneys
Date
of hearing
: 24 October 2019
Date
of judgment
:
29 January 2020