The Tribunal has determined that the employer in the recent decision in the matter of Oasis Group Holdings (Pty) Limited v Mansoor and Others, is liable for the costs of the fund member in opposing the application on the High Court scale.
The costs order comes in the wake of the Tribunal having repeatedly dealt with the issue of retirement funds failing to provide members with an opportunity to be heard when the employer seeks to have their benefit payment withheld. Funds are required to obtain input from a member where an employer seeks to have their benefit withheld pending finalisation of legal proceedings.
The Tribunal, relying on section 234(2) of the Financial Services Regulatory Act which empowers the Tribunal, in exceptional circumstances, to order a party to pay costs, ordered costs against the employer (the applicant). The Tribunal was of the view that the employer knew what the SCA and high court judgements state, this was clear from their papers, and ought to have known about the decisions which have been made by the Tribunal itself. The Tribunal was of the view that the application could only have been intended to delay payment. The Tribunal stated that the time had come to order costs against such employers who persist with such applications knowing full well the position in case law.
The ordering of costs in this matter should serve as a warning to parties who bring applications on issues where the position is clear in case law or where similar matters have already been determined by the Tribunal.