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[1] The appellant appeals against the dismissal of its statutory challenge to set
aside the determination of the Pension Fund s Adjudicator (the “Adjudicator ”)
in favour of the first respondent by the Court a quo (Collis J) on 20 July 2023.
The Adjudicator made a determination in terms of sec 30M of the Pension
Funds Act , 24 of 56, which determination is the equivalent of a judgment in a
civil court (see section 30O(1)). The determination was challenged by the
appellant in the Court a quo in terms of section 30 P of the Pension Funds Act .
The court a quo , in assessing the determination so challenged could make
any order it deems fit (section 30P(2).This statutory right to challenge is not
character ised in the Act as either an appeal or a review. It is similar to an
appeal in the wide sense, i .e. a rehearing -with or without further evidence
(sec 30P(3)) .The only requirement is that it must relate to essent ially the same
complaint that was assessed by the Adjudicator (see Meyer v Iscor Pension
Fund 2003 (2) SA 31 5 (SCA)) .
[2] The appeal serves before this court with leave obtained from the Supreme
Court of Appeal, leave to appeal having been refused by the Court a quo .
[3] The appellant is a registered security service provider with registration number
339326 registered with the Private Security R egulatory Authority in terms of
the provisions of the Private Security Industry Regulation Act, 56 of 2001. By
virtue of the services it provides, it employs security guards who also require
registration with the authorities in terms of the aforesaid Act.
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[4] This case relates to a determination of pension benefits to which employees
are entitled and how it affected the rights of particularly the first respondent, a
former employee of the appellant.
[5] The first respondent is Mr Rachos hi, who was the twenty -second respondent
in the Court a quo . On appeal, the second respondent is the Private Security
Sector Provident Fund, ( the “Fund”) duly established in terms of the Sectoral
Determination of the Private Security Industry Sector as set out in Government
Notice No. R306 of 30 March 2001, as amended by Government Gazette No.
R331 of 25 October 2002.
[6] On appeal the third respondent is the Adjudicator, who was the twenty -ninth
respondent in the Court a quo .
[7] The appellant, as an employer, has a duty in terms of section 13A(1)(a) of the
Pension Funds Act to pay contributions and to submit schedules to the Fund
of employees on whose behalf payment is being made. Such contributions
are to be paid into the account of the Fund .
[8] Some 44 of the appellant’s employees laid complaints against the appellant in
2016 for not registering them as members of the Provident Fund and not
making pension contributions on their behalf as required by the aforesaid Act.
The appeal arises in respect of proceedings relating to 27 of the aforesaid
complainants. The remainder were dealt with in other proceedings.
[9] On 19 July 2021 Strydom AJ set aside the determination of the third
respondent in these proceedings relating to 25 of the 27 complainants. On 4
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February 2022 Ndlokovane AJ set aside the determination of the third
respondent insofar as it related to the twenty -fourth respondent. On ly the first
respondent in the appeal remained as 22nd respondent to oppose the
proceedings in the Court a quo .
[10] Mr Rachos hi was employed by the Brinant on 26 August 2008. In a written
request of 15 October 2009 Mr Rachos hi requested Brinant to stop deducting
any contributions on his behalf from the Provident Fund as he had money
problems . Brinant obliged. It bears noting that the admissibility of the
document reflecting the aforesaid request by Mr Rachos hi is challenged in the
appeal as res nova as it was only introduced in the replying affidavit . That
does not detract from i t being evidence. It was cited as a common cause fact
by the court a quo . Whether it is res nova or a proper reply is d iscussed below.
[11] The following chronology will be useful in understanding the issues discussed
below.
[12] On 3 March 2016 the Pension Fund s Adjudicator received a complaint from a
number of employees of Brinant, including Mr Rachoshi. On 9 March 2016
the Adjudicator acknowledged receipt of the complaint and sent it to Brinant
to respond to, giving Brinant time to submit its response by 11 April 2016. This
gave rise to a procedural cha llenge by the appellant in the court a quo and on
appeal as the Act requires the complaint to be made to the Fund, who se Board
will then advise the employer and req uest its response (section 30A(1). Only
once the response so received is not accepted by the complainant , or if no
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response is received within 3 0 days, may the complaint be lodged with the
Adjudicator (section 30A(3)).
[13] In the course of 2016, the Pension Fund s Adjudicator referred the issue to the
Fund in order to try and settle the issue with Mr Rachoshi. The employees
who had lodged complaints were represented by a firm of attorneys Soonder
Inc. In an email of 24 August 2016 Soonder Inc ( per Arlen Naidoo) notified
the Adjudicator that “The outcome is that the Fund has accepted the resolution
proposed by the parties’ Attorneys, duly guided by the PFA” . The PFA was
notified that a settlement agreement is in the process of being prepared. On
29 August 2016 the Senior Assistant Adjudicator of the PFA, Char ison
Raphadana enquired of Soonder Inc about progress in respect of settlement.
On the same day Soonder Inc ( per Arlen Naidoo) reported to the Senior
Assistant Adjudicator:
“The matter has been resolved. We will attend to signature during the course
of this week. Mr Channon has indicated that payment of arrears will be
resolved within 7 days of signature and that the court application will be
withdrawn.”
[14] In the course of September 2016 the first respondent, Mr Rachoshi’s
employment was terminated.
[15] On 18 October 2016 a settlement agreement was signed by Brinant on the
one hand and the Fund on the other hand in respect of the complainants. The
agreement included the settlement of claims of a list of employees in
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Annexure A to the settlement agreement, which included Mr Rachoshi as
number 24 on that list.
[16] In terms of Rule 7 of the Fund Rules, a lumpsum payment of pension benefits
would be payable to a member upon resignation, dismissal or retrenchment.
[17] A written submission was made by Brinant on 27 October 2016 to the Pension
Funds Adjudicator and a further response was submitted on 15 November
2016. The crux of the first response was that the dispute had been settled in
terms of the written settlement agreement and in the supplementary response
of 15 November 2016, proof was provided of payment made in terms of the
settlement agreement. Mr Rachoshi received payments on 6 June 2016 and
again on 11 November 2016. It will be noted that one payment was ma de
before the settlement and the second after the settlement was concluded.
[18] As part of the written submission of Brinant on 27 October 2016 a signed
settlement agreement was attached pertaining to outstanding Provident Fund
contributions in respect of the complainants.
[19] On 14 February 2017 the Fund received payments from Brinant in respect of
outstanding Provident Fund contributions. On 2 4 March 2017 the Pension
Funds Adjudicator made a determination in respect of Mr Rachoshi and it is
this determination which is the focus of both the proceedings in the Court a
quo and the present appeal.
[20] In the determination by the Pension Funds Adjudicator, the settlement as a
defence was discussed and rejected. The Adjudicator found that the
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agreement fell foul of the Rules of the Provident Fund. The result was that
only 5 years of a period in excess of 5 years was covered by the settlement
agreement. There were Provident Fund contributions that were not included
because of the 5-year limitation from 1 July 2016 looking backwards. In
respect of Mr Rachoshi, the Pension Funds Adjudicator found that there were
unpaid contributions from 1 March 2009 to 31 May 2011.
[21] The determination orders Brinant to register Mr Rachoshi as a current member
of the Provident Fund and to provide proof of payment of the arrear
contributions for the period 1 March 2009 to 31 May 2011.
[22] In so ordering, the Pension Funds Adjudicator assumed that Mr Rachoshi is
still an employee of Brinant. In paragraph 2.1 of the determination, it is
expressly stated that Mr Rachoshi is still a member of the Provident Fund “by
virtue of their employment with the second respondent (Brinant)” .
THE COURT A QUO
[23] The applicant brought its application for review of the Pension Funds
Adjudicator’s determination in terms of section 30P of the Pension Funds Act,
24 of 1956. Most of the complainants fell away , through the orders made by
Strydom AJ and Ndlokovane AJ as referred to above. In those orders the
determination of the Adjudicator was set aside in respect of the complainants
who were parties to those orders. The orders were obtained by default.
[24] The grounds of a ppeal are centred on two propositions. The first is that the
complaint of Mr Rachoshi had been settled, and the determination was in
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conflict with the settl ement. The second was that the Adjudica tor had
exceeded his j urisdiction in investigating acts and conduct that occurred more
than three years before the date on which the complaint was lodged - ie 16
March 2016. The time bar is in sec 30I.
[25] In terms of section 30I(1) “The adjudicator shall not investigate a complaint if
the act or omission to which it relates occurred more than 3 years before the
date on which the complaint is received by him or her in writing.”
[26] In advancing its argument that the dispute with Mr Rachoshi had bee n settled,
the appellant (applicant in the Court a quo ) stressed that the Adjudicator was
part and parcel of the negotiations and was constantly updated regarding
progress. The applicant contended that the Pension Funds Adjudicator
cannot disregard the settlement agreement in circumstances where it was the
result of a negotiated process over which the Pension Fund Adjudicator had
supervision.
THE TIME BAR
[27] The appellant contended then, as it does now, that the act or omission to which
the determination relates took place more than 3 years before receipt of the
complaint. The appellant contends that non -payment of contributions on
behalf of Mr Rachoshi from 2009 was as a result of his express req uest made
on 15 October 2009.
[28] The nature of the time bar has featured in ca se law in this division, one of the
cases being that of the appellant.
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[29] The first matter is that of Brinant Security Services (Pty) Ltd v The Private
Security Sector Provident Fund and Four Others Case No A113/2022
GDP which was heard on 2 August 2023 by the Full Court, (Justices Potterill
J, Retief J and Phooko AJ ). A written judgment and order was made on 6
September 2023. It was specifically stated in par 18:
“Accepting then that section 30 I (1) is simply a time bar and that subsection
(2) is merely a means to determine ‘the date of the act/omission how arising’
to enable the calculation of the time bar in subsection (1), means that the
function of subsection (2) to consider the Prescription Act 68 of 1969
(Prescription Act) is to ensure that an Adjudicator does not investigate a matter
which, in law, has prescribed. Its f unction is not there to be utilized as a special
defence of prescription. The Act and Pr escription Act possess different
functions.”
[30] The second matter is that of Brinant Security Services (Pty) Ltd v The
Private Security Sector Provident Fund and Three Others Case No
9102/2022 GDP which was heard on 3 August 2023 by Justice Holland -Muter
J. A written judgment and order were made on 13 November 2023.
[31] In paragraph 21 of the judgement Holland -Muter J, find s as follows:
“Section 30 I (2) of the Act makes the provisions of the Prescription Act 68 of
the 1969 applicable in respect of the calculation of the t ime barred three -year
period referred to in section 30 I. Of significance is that the fourth respondent
does not possess the discretion to condone nor extend the time bar provided
for. Section 30 I is simply a time bar and that the Prescription Act’s three -year
Page 10

period when calculating a determination has to be accounted for. Section 30 I
is clear that the Adjudicator (fourth respondent) shall not investigate a
complaint of the act or omission to which it relates occurred more than 3 years
before the date on which the complaint was received. This was confirmed by
Investec Employee Benefit Ltd v Marais and Others [2012] 3 All SA 622
(SCA) . There is no room for any argument that the three -year period was
interrupted as in normal prescription matters. It is a time bar and not a
prescription period. The fourth respondent erred in this rega rd.”
[32] The appellant ’s procedural challenge is based on non-compliance with section
30A(1)-(3) of the Act which reads as follows:
“30A Submission and consideration of complaints
(1) Notwithstanding the rules of any fund, a complainant may lodge a
written complaint with a fund for consideration by the board of the 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 A djudicator.

Page 11

(4) Subject to section 30I, the Adjudicator may on good cause shown by
any affected party –

(a) extend a period specified in subsection (2) or (3) before or after
expiry of that period; or

(b) condone non -compliance with any time limit specified in
subsection (2) or (3).”
[33] It is common cause that the complainants did not follow the procedure and
never approached the Fund and its Board with their complaints . Brinant was
also not provided with the opportunity to respond to the Fund or the
complainant s in the above regard. The court a quo recognised this dev iation
but was satisfied that all the parties were given an opportunity to be he ard by
the Adjudicator. Implicit in this assessment was tha t the process was
nevertheless fair and there was no prejudice to the appe llant.
[34] The appellant contended to the Court a quo that the Pension Funds
Adjudicator did not have jurisdiction to entertain the complaint as the
prescribed procedure had not been followed.
[35] In the Court a quo counsel for Mr Rachoshi contended that Brinant was
misinterpreting section 30. He referred specifically to section 30 H (2) which
reads:
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“The Adjudicator shall not investigate a complaint if, before the lodging of the
complaint, proceedings have been instituted in any civil court in respect of a
matter which would constitute the subject matter of the investigation.”
[36] Mr Rachoshi’s counsel stressed that the restriction on the jurisdiction of the
Pension Funds Adjudicator to investigate matters is in relation to only where
civil court proceedings have been instituted, not where the complaint was
lodged directly with the Pension Funds Adjudicator.
[37] Mr Rachoshi relied on section 30I(2) which reads as follows:
“If the complainant was unaware of the occurrence of the act or omission
contemplated in subsection (1), the period of 3 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. ”
[38] Mr Rachoshi contended that he only became aware of his claim against
Brinant in relation to their non -compliance with the Provident Fund Rules in
2015.
[39] However, the request made by Mr Rachoshi in October 2009 stands in the
way of this argument. As he made the request, he knew at that time already
that non -payment of his contributions would flow as a result of his request.
However, Mr Rachoshi has distanced himself from this note and contends that
he did not write the request in question.
Page 13

[40] Mr Rachoshi further contends that he doesn’t know who Soonder Inc is, denies
having given them a mandate to represent him in negotiations with Brinant
and therefore contends that he is not bound by the settlement agreement. He
contends that the reference to Soonder Inc is hearsay evidence.
[41] Regarding receipt of the two payments by Mr Rachoshi, these receipts are
conceded.
[42] Mr Rachoshi contends that he believed that Brinant was attempting to comply
with the determination made by the twenty -ninth respondent (i.e. the Pension
Funds Adjudicator). Mr Rachoshi’s position in the Court a quo was that the
two payments received were not in full and final settlement of money due to
him related to pension benefits. He contends that the method of calculation
of the outstanding contributions did not take account of late payment of
interest and was therefore in breach of section 13 A (7) of the Act.
[43] On the jurisdictional challenge in terms of section 30I of the Act, the court
noted that the determination as far as Mr Rachoshi (and others) dealt with
complaints laid more than 3 years after the date of the complaints. The court
states: “It is common cause that Mr Rachoshi requested Brinant as far back
as on 15 October 2009 already, that it should stop deducting any contribution
from his salary which request Brinant acceded to. ”
[44] However, according to the Pension Funds Adjudicator’s determination, Mr
Rachoshi ought to have been registered on 1 March 2009. It is on this basis
that the appellant had contended that the Adjudicator dealt with the complaint
more than 3 years before the act or omission complained of.
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[45] Counsel for the appellant in the Court a quo had also argued that prescription
applies. However, Mr Rachoshi contended that he only became aware of the
conduct of Brinant, acting in breach of their rules in 2015. He therefore
contends that his claim against Brinant could not have prescribed as
prescription only starts to run as from the date he became aware of the debt
in terms of section 12(3) of the Prescription Act, read with section 31I(2) of the
Pension Funds Act. In reply this contention was merely denied.
[46] In the absence of rebuttal evidence, the court a quo accepted Mr Rachoshi’s
version that he only became aware of the debt in 2015 and as a result of the
provisions of section 12(3) of the Prescription Act, prescription was delayed.
[47] One must however bear in mind that the Court a quo found that it was common
cause that the appellant had already c eased making deductions from October
2009 at the specific request of Mr Rachosh i. Knowledge of the salient facts
was established to exist in 2009 already . Knowledge of having a valid c laim
is not relevant - it is knowledge of the salient fac ts giving rise to a debt. The
court a quo erred in requiring knowledge of wron gfulness before the time bar
is triggered.
[48] In respect of the procedural challenge relating to the periods concerned, the
court recorded that a complainant must first approach the Provident Fund in
writing for consideration of the complaint. It is for the Fund to then refer the
matter to the employ er for a response and only after the complainant has
obtained a written finding by the Fund, will a complainant be entitled to
Page 15

approach the Pension Funds Adjudicator, if dissatisfied with the response by
the Fund.
[49] In paragraph 32 of the judgment the court notes the following:
“Before, this court it is common cause , counsel for the applicant had argued
that the complainants did not follow the above procedure and never
approached the fund for consideration. The employer was further not provided
with the opportunity to respond to the fund or the complainants in respect of
the complaint. ”
[50] The applicant contended that non -compliance with this procedural prescript
meant that the Pension Funds Adjudicator lacked jurisdiction. In response
thereto, counsel for Mr Rachoshi referred to section 30 H (2) which reads:
“The Adjudicator shall not investigate a complaint if, before the lodging of the
complaint, proceedings have been instituted in any civil court in respect of a
matter which would constitute the subject matter of the investigation.”
[51] It was contended that the legislature only provides for one instance where the
Pension Funds Adjudicator’s jurisdiction to investigate a matter is curtailed ,
and that is in section 30H(2). There was therefore no express curtailing of the
jurisdiction of the Pension Funds Adjudicator to investigate and make a
determination.
[52] The court refer red to the procedures followed by the Pension Funds
Adjudicator and stated that it was clear that the latter attempted to comply with
Page 16

section 30A in that it gave all parties an opportunity to be heard. Although the
procedure in section 30 A (1) was not followed, there was sufficient opportunity
to make representations and to be heard. The court therefore found that there
was no basis for strict compliance with section 30A. This holistic approach to
the process that was followed, to test it for fairness and the determination of
prejudice not to be faulted
THE SETTLEMENT
[53] On the issue of the settlement, the cour t accepted the Adjudicator’s
assessment that no consequences flowed from the settlement. The c ourt a
quo accepted Mr Rachoshi’s version that he believed that the payments that
he had received were made by Brinant while attempting to comply with the
determination made by the Pension Funds Adjudicator. At paragraph [47] the
court states:
“[47] He thus laboured under the impression that the applicant was in the
process of complying with the determination. It is further his assertion
that the two payments he received were not in full and final settlement
of the monies due to him as a result of hi s pension fund contributions.
[48] The applicant in its replying affidavit merely denies that Mr Rachoshi
has merit in his opposition to the application. It is noteworthy to mention
that no explicit attempt was made to answer to the assertions made by
Mr Rachoshi in relation to the two payments which he re ceived. ”

Page 17

[54] The Court a quo accepted Mr Rachoshi’s contention that he was unaware of
who Soonder Inc was, had not given them a mandate and that he is not bound
by any agreement concluded by them ostensibly on his behalf. The court
further accepted that the settlement agreement, having been rejected by the
Pension Funds Adjudicator in his determination, “it must follow that no legal
consequences can flow therefrom.”
[55] In the premises the Court a quo dismissed the application with costs.
[56] On the issue of a negotiated settlement, it is trite that parties ma ke
compromise s in the course of discussions and that a settlement is not a matter
of simple calculation. Particularly in respect of Mr Rachoshi, the court should
have taken into account his request not to be debited for contributions to the
Provident Fund in terms of his written request of October 2009. Particularly
then, if Brinant adhered to his express request, the calculation of an amount
less than the full period would be the result of a negotiated settlement. It is
therefore not open to the Pension Funds Adjudi cator, having presided over
the process, to second -guess the reasoning and impose his view of what was
fair on parties who had reached a negotiated settlement. The Court a quo ’s
acceptance that no legal consequences flowed from the settlement is
therefore flawed and constitutes a misdirection.
[57] Further, the court’s acceptance of Mr Rachoshi’s contention that he believed
that the two payments made by Brinant to him were in compliance with the
determination made by the Pension Funds Adjudicator, can be identified as a
misdirection merely with reference to the chronology. The determination in
Page 18

question was only made known on 24 March 2017, while Mr Rachoshi
received his first payment on 6 June 2016 (before the settlement) and the
second payment was received on 15 November 2016 (after the settlement).
It is therefore incorrect to accept Mr Rachoshi’s version in circumstances
where the chronology proves him to be wrong.
[58] On his version he never appointed Soonder Inc to negotiate a settlement on
his behalf. If that were so, on what conceivable basis did he accept payments
from Brinant in June 2016 and November 201 6? There is no cogent evidence
as to why he accepted the first payment . It was before the settlem ent and
before the determination .
[59] This is one of those instances where the inherent improbability of Mr
Rachoshi’s version called for its rejection. The application of the P lascon -
Evans rule simpliciter would result in an injustice. The Court a quo erred in
accepting Mr Rachoshi’s contention that he accepted the payments in
compliance with the determination, when no such determination had been
made. The court should have accepted the contention of the applicant that
payment flowed, particularly as f ar as the second payment was concerned,
from the settlement agreement.
[60] His contentions regarding the mandate of Soonder In c is not material on the
facts. The settlement concluded on 18 October 2016 was to the ben efit of the
listed employees, which inc luded Mr Rachoshi. They are not listed as parties
but are the beneficiaries of the settlement . His acceptance of the benefit in the
form of a payment on 11 November 2016 made Mr Rachoshi a party to the
Page 19

settlement on trite principl es related to a stipulatio alteri . It is irrelevant
whether he ha d given a prior mandate to Soonder Inc . The court a quo erred
in not assessing the consequence of accepting the 11 November 2016
payment.
[61] Insofar as the exercise of the statutory power of the Pension Funds
Adjudicator is concerned, the Pension Funds Adjudicator made three
fundamental misdirections .
[62] Firstly, he has discounted a negotiated settlement (transactio ) over which he
presided. There was no remaining complaint to investigate as Mr Rachoshi
was boun d by the settlement as discussed above.
[63] It is binding on the Adjudicator too. The Adjudicator took an active role in the
settlement process. He required to be updated on progress made in regard to
such settlement negotiations. He was further provided with a copy of the
settlement agreement and was notified prior to his determination of full
compliance by Brinant with the terms of the settlement agreement. In those
circumstances, it is not open to the Pension Funds Adjudicator to put a line
through a negotiated settlement. It is binding on the parties, and it precludes
the Adjudicator from dismissing the settlement as non -existent.
[64] A second misdirection made by the Pension Funds Adjudicator flows from the
error of fact that he made in treating Mr Rachoshi as an employee of Brinant
at the time of the determination and in issuing directions to register Mr
Rachoshi as a member of the Pr ovident Fund. Mr Rachoshi’s employment
had terminated in the month before the settlement agreement was concluded.
Page 20

Whilst this put an end to his employment, it did not have the immediate effect
of cancelling his membership of the Provident Fund, as he was still entitled,
under Rule 7 of the Provident Fund Rules to a lumpsum payment of his
pension benefits.
[65] The issuing of directions for the registration of Mr Racho shi as a member of
the Provident Fund is not a part of the determination that can be severed from
the rest. It constitutes a unitary exercise of a public power based on an
incorrect fact, namely that Mr Rachoshi was still an employee of Brinant at the
time of the determination.
[66] Lastly, the Pension Funds Adjudicator failed to determine whether he had
jurisdiction insofar as his objection as far as Mr Rachoshi was concerned
related to non -payment of employer contributions in the period 2009 to 2011.
As his determination arose from a complaint received in March 2016, he was
clearly investigating matters and acts that took place more than 3 years from
the date of receipt of the complaint. He simply lacked jurisdiction to enquire
into and to make directions on such events.
[67] In the premises we are satisfied that the Court a quo erred in dismissing the
sec 30P challenge of Brinant.
[68] In the premises the following order is made:
1. The appeal is upheld with costs , including the costs of two counsel,
on Scale C. .

Page 22


This judgment was prepared by LABUSCHAGNE J . It is handed down electronically
by circulation to the parties/their legal representatives by e -mail and uploaded on
Caselines electronic platform and by publication of the judgment to the South African
Legal Information Institute. The date for hand -down is deemed 14 February 2025.


Appearances:

Advocate for Applicant : J G Cilliers SC
Appearing with : T Ellerbeck

Instructed by: Arthur Channon Attorneys

Advocate for First Responden t(s): DF Makhubela
Appearing with : F Tugwana

Instructed by : Raulinga, Netsianda and Khameli Inc Attorneys


Heard: 31 January 2025

Delivered: 14 February 2025