Adjudicator handles pension fund disputes between workers and employees

Sowetan Live reports that Muvhango Lukhaimane, is the Pension Fund Adjudicator and her office is legally empowered to handle pension fund disputes between workers and their employees. Having grown up in Venda, Limpopo, Lukhaimane has Masters in Law and an MBA degree and says her career path to the pension space was not planned. “I sort of stumbled upon the world of pensions. At the time I had an opportunity to join the premier’s office in Limpopo or Sanlam Employee Benefits in Cape Town and I chose the latter. I think my not so good experience with life as a law lecturer and the campus politics of the time dictated that I join the private sector.

You have been the adjudicator since 2013, what do you think is the importance of your office? 
This office is very important as it allows fund members, employers and funds themselves to have an avenue to resolve whatever disputes they might have at no additional cost. I say no additional cost because the members already pay a levy from their contributions which funds the operations of our office.  The process is simple and unlike a court, we investigate and seek to reach the correct outcome in terms of the law. Therefore, as far as access to justice is concerned, the process is easy, and we endeavour to finalise our complaints within six months. Our judgments are written in simple language so that everyone can read the outcome without needing the assistance of a lawyer.

Unfortunately, we do not have enforcement powers. Once we issue a determination, the party seeking to enforce it, may make use of the services of the sheriff as it has the same effect and standing as a high court order.

What do you think about general pension laws in this country and if there is one law about pension that you would like to have amended, what would that be and why?
SA has solid pension laws that are not only comparable to the best in the world but also manage to achieve proper outcomes for those that can stay invested for long periods of time. Unfortunately, given our unemployment situation and the squeeze on family finances, this is not always the case.

If there is one law I would change, it is the one that allows an employer to lay claim to an employee’s pension fund benefit because of wrongdoing against the employer. Most of the employers that have attempted to do this have done so in an unprocedural manner (and let me be clear, this is not what you see the SIU (Special Investigating Unit) doing – they go to the tribunal to ask permission to lay claim to a fund benefit). What employers in the private space do, is to request the pension fund to withhold the benefit and the fund then does so without giving the employee an opportunity to place their case before the fund.

Do you think workers know enough about the work your office?
I think that ourselves, employers and funds can do a lot more to inform workers about the existence of our office and the services that it offers. Most people that would contact us for outstanding contributions, do so very late, leaving a portion of their claim vulnerable to prescription. It is therefore important for funds and employers to inform workers / members about the existence of our office.

It is important that when a person commences employment, and they are informed that they are a member of a pension fund, they familiarise themselves with the rules of the fund, the benefits they are entitled to and how to claim those benefits. Members must also insist on getting their annual benefit statements – which they are entitled to in terms of the law and keep up to date with whether the employer is complying with the rules of the fund, especially the payment of monthly contributions.

What are some of the common cases you handle and how do you deal with companies who refuse to play ball?
Our cases mostly entail delay in the payment of withdrawal / retirement benefits, failure of employers to pay contributions to a fund or even register a worker as a member of a fund, allocation of death benefits, delay in the payment of death benefits and less than expected investment returns. Companies that refuse to play ball leave us with no option but to issue default judgments.

Can you give examples of worst cases you handle?
Over time, the sad thing is that you realise that the level of non-compliance and failure to do things in terms of the Act is pervasive. However, where death benefits are concerned, I am often surprised at the level of ignorance of married spouses as to the entitlement of life partners / girlfriends of long standing and children born out of wedlock to the pension benefit of a member in case of death.

Recently Sowetan wrote about companies that are not handing over employee contributions to funds, what needs to be done to hold companies to account? 

The responsibility lies squarely on the funds. The funds must report the failure to the FSCA [Financial Sector Conduct Authority]. Then they must lodge complaints on behalf of members with our office. Once we issue the orders, they must enforce against the employers. In addition, they must approach the SAPS and the NPA [National Prosecuting Authority] to report such cases and follow-up to ensure that the people responsible for the payments are prosecuted.

by Lindile Sifile

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