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[2014] ZAGPPHC 6
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Ghandi Sqaure Property Holdings (Pty) Ltd v Pension Fund Adjudicator and Others (62575/2013) [2014] ZAGPPHC 6 (4 February 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 625
75/2013
DATE:
04 FEBRUARY 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
GHANDI SQUARE PROPERTY HOLDINGS (Pty) Ltd
APPLICANT
and
THE
PENSION FUND ADJUDICATOR
1
st
respondent
T J MOKOENA
2
nd
respondent
THE PRIVATE SECURITY SECTOR
PROVIDENT FUND
3
rd
respondent
JUDGMENT
TWALA, AJ
1. This is an application for review and to set
aside the decision of the first respondent, The Pension Fund
Adjudicator, handed
down on the 22 August 2013 in the complaint
brought against the applicant and the third respondent by the second
respondent.
2. The applicant brought this application in
terms of
Section 30P
of the
Pension Funds Act 24 of 1956
against the
following award or order of the first respondent:
“6.1.1 the Second Respondent is ordered
to register with the First Respondent as a participating employer
from 1st September
2002 within two weeks of this determination;
6.1.2 the Second Respondent is ordered to
register the Applicant as a member of the First Respondent with
effect from 1st September
2004 within three weeks of this
determination;
6.1.3 the Second Respondent is ordered to
submit all outstanding contributing schedules to the First Respondent
for the period September
2004 to March 2011, in order to facilitate
the computation of the complainant’s withdrawal benefit, within
four weeks of
this determination;
6.1.4 should the Second Respondent fail to
comply with paragraph 6,1.3, the First Respondent is ordered to
reconstruct the complainant’s
contribution schedule based on
the information already in its possession, within four weeks of the
Second Respondent’s failure
to submit the schedules;
6.1.5 the First Respondent is ordered to
compute the complainant’s outstanding withdrawal benefit,
together with late payment
interest owed by the Second Respondent in
terms of
Section 13A(7)
of the Act, within one week of receiving the
contribution schedules in terms of either paragraph 6.1.3 or 6.1.4
(whichever is applicable);
6.1.6 the First Respondent is ordered to
transmit to the Second Respondent its computations in paragraph 6.1.5
within three days
from completing them;
6.1.7 the Second Respondent is ordered to pay
the complainant’s outstanding withdrawal benefit, together with
late payment
interest as computed in accordance with paragraph 6.1.5
supra, to the First Respondent within one week of receiving the
computations
from the First Respondent; and
6.1.8 the First Respondent is ordered to pay
the complainant his outstanding withdrawal benefit, less any
deductions permitted in
terms of the Act within one week of receiving
payment from the Second Respondent.”
3. The First Respondent filed its papers of
record but did not oppose the application. The second and third
respondents did not
file any opposing papers.
4. It appears from the record that the second
respondent, Mr TJ Mokoena, lodged a complaint with the first
respondent that he commenced
his employment with the applicant from
the 1st March 2004 until his service was terminated on the 30th June
2012. He was a member
of the Private Security Sector Provident Fund,
the third respondent, by virtue of his employment. Following the
termination of
his employment, a withdrawal benefit became payable to
him, but when he claimed his withdrawal benefit from the third
respondent,
he was advised that his employer, the applicant, only
registered as a participating employer with the third respondent in
April
2011. He wanted the first respondent to assist him to recover
his money from the date of his engagement by the applicant until the
date of termination of his employment.
5. In its response to the complaint of the
second respondent, the applicant admitted that it only registered as
a participating
employer with the third respondent on the 1st April
2011 due to the fact that it was unaware of the regulations of the
Private
Security Industry Regulatory Authority (PSIRA). It was
charged with "improper conduct” by PSIRA and a settlement
agreement
was entered into between the applicant and PSIRA whereby
the applicant paid some penalties for its breach of the rules of
PSIRA.
From the 1s' April 2011 to the 7lh June 2012 all its
contributions were paid to the fund and were up to date in June 2012.
A letter
dated 26 September 2013 from the third respondent confirms
that the second respondent was paid in full and final a sum of R4
450.26
which covers the period April 2011 to June 2012.
6. On the 21 August 2013 counsel for the
Applicant argued this matter before this Court and because the Court
needed clarification
of certain issues the following order was made:
I. Judgement is reserved;
II. Applicant to file its heads of argument
within 10 days of this order; and
III. The first respondent furnish reasons why
her award should not be set aside within 10 days after receiving the
Applicants heads
of argument;
7. The first respondent responded by saying
that it was functus officio and may not defend its determination,
oppose a
Section 30P
application in terms of The Pension Fund Act or
participate in subsequent court proceedings between the parties. It
referred to
several authorities in this regard.
Schutz JA said the following in the case of
Pretoria Portland Cement Co Ltd and Another vs Competition Commission
and Others
2003 (2) SA 385
(SCA):
“It is not for judges to participate in
any stage subsequent to their judgments in order to defend their
decision. The place
to explain a decision is in the judgment”.
8. I accept the argument of the First
Respondent that it is not a party to these proceedings and therefore
it cannot participate
in any way. Whatever reasons or clarification
that may be required can be found in the reasons of her award or
judgment.
9. The applicant filed a supplementary
affidavit accompanying its heads of argument in compliance with the
order of the 21 November
2013. The supplementary affidavit introduces
a settlement agreement entered into between the applicant and the
second respondent
on the 15 November 2013. The material terms of the
settlement agreement are as follows:
“I Tebelo Josiah Mokwena,
In the matter that I have instituted with the
Pension Fund Adjudicator against Ghandi Square Property Holdings
(PTY) LTD, I have
accepted an ex gratia and without prejudice cash
settlement of R8 000.00 (eight thousand rand).
In terms of the settlement, I hereby undertake
not to enter an appearance to defend in the matter between the
Pension Fund Adjudicator
and Ghandi Square Property Holdings (PTY)
LTD. I further undertake to advise Bianca Vaskow of Pro Bono that the
matter is settled
and that she is not to proceed with the intention
to defend.
The cash payment will only be paid on
confirmation that Pro Bunu acknowledge that they will not enter an
appearance to defend following
a settlement between TJ Mokwena and
Ghandi Square Property Holdings (PTY) LTD.
Signed at Johannesburg this the 15th day of
November 2013.
10. This information only surfaced after
hearing argument of this application on the 21 November 2013. It is
surprising that both
parties having legal representation would take
it upon themselves to draft such an agreement without involving their
legal representatives.
11. Because of the settlement agreement entered
into between the applicant and the second respondent, applicant
argues that the
litigation between them has become settled and this
court need not make any determination with regard thereto. Applicant
argues
that the remaining issues to be determined by this court are
threefold:
I. there was non - compliance with the
provisions of Section 30A (1)- (3) of the Pension Fund Act;
II. the Adjudicator was not empowered to
consider and rule on the question whether the applicant should be
held accountable for
failing to timeously register as a member of the
third respondent; and
III. In terms of Section 301 of the PFA the
Adjudicator is barred from investigating and ruling on any such
omission that took place
prior to 15 April 2010 because of the time
limit for the lodging of the complaints.
12. At this stage, I deem it appropriate and
necessary to set out some of the provisions of the PFA which are
relevant to this case:
“Section 30A provides as follow:
Submission and consideration of complaints:
1. Notwithstanding the provisions of the rules
of any fund, a complainant shall have the right to lodge a written
complaint with
a fund or an employer who participates in a fund.
2. A complaint so lodged shall be properly
considered and replied to in writing by the fund or the employer who
participates in
a fund within 30 days after the receipt thereof.
3. If the complainant is not satisfied with the
reply contemplated in subsection (2), or if the fund or the employer
who participates
in a fund fails to reply within 30 days after the
receipt of the complaint, the complainant may lodge the complaint
with the Adjudicator.
13. The literal interpretation of Section 30A
above is that it creates a right to the complainant to lodge a
complaint in writing
with the fund or the participating employer but
does not create an obligation on the part of the complainant to do
so. This section
is peremptory on the part of the fund or the
participating employer to receive, properly consider and reply in
writing to the complaint
within the specified period. It does not
provide that the complainant shall lodge a complaint with the fund or
participating employer
but that the complainant shall have the right
to lodge the complaint with the fund or the participating employer?
Therefore, the argument of the applicant that
there was no compliance with section 30A of the PFA falls to be
dismissed.
14. On the other hand, in the circumstances of
this case, it is common cause that the complainant, the second
respondent, lodged
his claim for the withdrawal benefit with the
third respondent and was paid based on the contributions for only
three months. On
enquiring as to why he was paid such a small amount
as his withdrawal benefit having been in the employ of the applicant
from 1
March 2002 until termination of his employment on 30 June
2012, he was advised by the third respondent that his employer, the
applicant
herein, only registered as a participating employer on the
1 April 2011 and contributed for only three months from that date.
15. Therefore, the complainant did lodge a
complaint with the fund, though not in writing, and was given an
unsatisfactory answer
in that he was told his employer only
registered as a participating employer in April 2011 and contributed
for three months only
from that date - hence he approached the
Pension Fund Adjudicator for assistance. How else could he have known
that his employer
registered as a participating employer in April
2011 and that the employer contributed for three months only after
registering
if he did not engage the fund on receipt of his
withdrawal benefit.
I am of the view that in this case, there was
sufficient compliance with section 30A of the PFA to found the
jurisdiction required
for the first respondent to entertain the
complaint of the second respondent
16. It is further argued by the applicant that
for the first respondent to validly exercise its power over a
complaint, the complaint
must be a complaint as defined in the PFA
and must be a complaint in respect of which all the jurisdictional
pre-requisites to
the exercise of its power as set out in the PFA
must have been met.
17. The PFA defines the complaint as follows:
“complaint” means a complaint of a
complainant relating to the administration of a fund, the investment
of its funds
or the interpretation and application of its rules, and
alleging:
(a) That a decision of the fund or any person
purportedly taken in terms of the rules was in excess of the powers
of that fund or
person, or an improper exercise of its powers:
(b) That the complainant has sustained or may
sustain prejudice in consequence of the maladministration of the fund
by the fund
or any person, whether by act or omission;
(c) That a dispute of fact or law has arisen in
relation to a fund between the fund or any person and the
complainant; or
(d) That an employer who participates in a fund
has not fulfilled its duties in terms of the rules of the fund; but
shall not include
a complaint which does not relate to a specific
complainant.”
18. The rules of the Private Security Sector
Provident Fund provides as follows;
1.
Rule 1.5 Registration
If the registration of these rules in terms of
the Act is effected later than 1 September 2002, the Rules shall
nevertheless take
effect from 1 September 2002.
2. Rule 3 Membership
3.1
EMPLOYER PARTICAPATION
3.1.1 Subject to Rule 3.2.7 below, all
Employers in the Private Security Sector shall participate in the
Fund with effect from the
commencement of the fund or the
commencement of the Employer’s business in the Private Security
Sector, whichever is the
later.
3.2
MEMBER PARTICIPATION
3.2.1 Subject to Rule 3.2.7 below, each
Eligible Employer shall, as
a condition of employment, become a Member of
the Fund with effect from the commencement of the Fund or the
commencement of the
Employer’s business in the Private Security
Sector, whichever is the later.
19. The complaint by the second respondent is
that the third respondent should assist him to get his withdrawal
benefit retrospectively
to the date of his employment by the
applicant. He was told that his employer only registered as a
participating employer on 30
April 2011 and paid for three months,
i.e 30 April 2011 to 30 June 2011. This is apparent from the details
in the complaint form
completed by the complainant. He says “I
would also like to know if the PFA can help with the remaining
years”.
20. It is common cause that the applicant
started its business on the 24 March 2000 and only registered with
the third respondent
in April 2011. The second respondent was
employed by the applicant from 1 March 2004 until he was dismissed
from his employment
in 30 June 2012.
This confirms that this is a complaint as
defined in paragraph (d) of the definition of “complaint”
in the PFA in that
the applicant did not fulfil its duties in terms
of the rules of the fund in relation to the second respondent.
The further argument tendered by the applicant
herein is that it entered into a settlement agreement with PSIRA and
paid the penalties
for not complying with its rules and therefore the
Adjudicator was not competent to order it to register retrospectively
to 1 September
2002.
This court was not privy to the contents of
settlement agreement between the applicant and PSIRA nor did the
applicant find it ^necessary
to attach a copy thereof to its papers.
However, it appears as follows on page 79 of the record and on
paragraph 5.6 of the first
respondent’s award:
“the record of the misconduct proceedings
against the second respondent by PSIRA and the settlement agreement
connected thereto
do not show that there was an agreement that the
second respondent was to be allowed to register as a participating
employer with
the first respondent and enrol its employees as its
members at a later date”.
21. As indicated above, rule 1.5 of the PSSPF
states that these rules shall take effect from 1 September 2002. Rule
3.1.1 states
that all employers in the private security sector shall
participate in the Fund with effect from the commencement of the fund
or
commencement of the employer’s business in the private
security sector, whichever is the later.
The applicant started its business in March
2000 and did not register with the fund when it came into being on 1
September 2002.
The second respondent was employed by the applicant
from 1 March 2004 and was not registered with the fund at the time
but only
in April 2011. The rules of the fund are peremptory on the
part of the employer to register with the fund as a participating
employer
and the applicant has failed to fulfil its duty to register
as such on the 1st September 2002 and to register the second
respondent
in particular on the 1st March 2004 when the second
respondent was employed by the applicant.
22. The excuse by the applicant that it was
unaware of the regulations is not reasonable and cannot be accepted.
There is a maxim
in our law that “ignorance of the law is no
excuse”. This maxim was discussed at length by the Appellate
Division,
now known as the SCA in the case of State v De Blom 1977(3)
SA 513 (A) as captured in the head note at 514E-F:
“At this stage of our legal development
it must be accepted that the cliché that "every person is
presumed to
know the law" has no ground for its existence and
that the view that "ignorance of the law is no excuse" is
not
legally applicable in the light of the present day concept of
mens rea in our law. But the approach that it can be expected of a
person who, in a modern State, wherein many facets of the acts and
omissions of the legal subject are controlled by legal provisions,
involves himself in a particular sphere, that he should keep himself
informed of the legal provisions which are applicable to that
particular sphere, can be approved.”
23. It is my view therefore that there was a
valid complaint before the first respondent and the first respondent
was accordingly
empowered to adjudicate upon the complaint.
24. I now turn to deal with the argument in
relation to the provisions of Section 301 of the PFA which provides
as follows:
301 Time Limit for lodging of complaints:
301. (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) If the complainant was unaware of the
occurrence of the act or omission contemplated in subsection (1), the
period of three
years shall commence on the date on which the
complainant became aware or ought reasonably to have become aware of
such occurrence,
whichever occurs first.
(3).........................................................................................................................
25. The second respondent was employed by the
applicant from the 1st March 2004 until he was dismissed from his
employment on the
30 June 2012.
Rule 7 of the PSSRA provides that:
7. Termination of Membership
7.1 Termination of Service
If a member who is not qualified to retire in
terms of Rule 5 leaves service, whether of his or her own accord or
dismissal or retrenchment,
such a member may elect:
(a)...................................................................
(b)....................................................................
(c) As a lump sum, provided that if the member
fails to make such an election within such period as the trustees may
from time to
time decide, and if his or her employer has certified
that he or she is no longer in employment with that employer, the
member
is deemed to have elected to receive a lump sum benefit;
26.
Section 12
of the
Prescription Act, 68 of
1969
provides as follows:
12. When prescription begins to run:
12(1) Subject to the provisions of subsections
(2), (3) and (4), prescription shall commence to run as soon as the
debt is due
(2) If the debtor wilfully prevents the
creditor from coming to know of the existence of the debt,
prescription shall not commence
to run until the creditor becomes
aware of the existence of the debt.
(3) A debt shall not be deemed to be due until
the creditor has knowledge of the identity of the debtor and of the
facts from which
the debt arises: Provided that a creditor shall be
deemed to have such knowledge if he could have acquired it by
exercising reasonable
care.
27. Having regard to the provisions of
rule 7
of the PSSRA quoted above, in this particular case, the withdrawal
benefit arose on the 30 June 2012 when the employment of the
second
respondent was terminated by the applicant. I am not persuaded by the
argument that the second respondent should have known
from the date
of his employment that the applicant did not deduct any pension money
from his salary to pay over to the fund since
he was not employed for
the first time in the industry. The rules of the PSSRA clearly place
a duty on the employer to register
with the fund immediately it
commences business or on the 1 September * 2002, whichever is the
later.
Rule 4
of the PSSRA provides that the employer shall deduct
the member’s contribution from the salary or wages of the
employee and
together with the employer’s contribution shall be
paid, by the employer, to the Fund within 7 days of the calendar
month
in respect of which the contributions are payable.
In my view the claim for the withdrawal
benefits of the second respondent arose when his employment was
terminated on the 30 June
2012 and this is in Sine with
rule 7
of the
rules of the PSSRA.
Therefore the first respondent was correct in
entertaining the complaint of the second respondent.
28. Having regard to the facts and factors
relevant in this case, I therefore make the following order:
“The application is dismissed”
TWALA AJ
ACTING JUDGE OF THE
NORTH GAUTENG HIGH COURT
Representation for the Applicant:
Counsel
.........................................................
Adv:
..........................................................
Adv:
Instructed by
Representation for respondent
Counsel
.........................................................
Adv:
Instructed by: