1. A key change proposed by Labour Law Amendment Bill, 2025 is the introduction of section 77B into the Basic Condition of Employment Act, 75 of 1997 (BCEA). The proposed change is of particular importance to employers as it seeks to tackle a long-standing challenge concerning unpaid pension and provident fund contributions
Michelle David
Personal liability for directors of companies that fail to pay employees’ pension contributions
By Michelle David on
This blog is co-authored by Francisco Andrade-Nobrega and Zubenathi Ndlwana, candidate attorneys.
Introduction
In January 2025, the High Court delivered a judgment ordering personal liability of the directors of an employer that failed to pay over employees’ pension contributions to the relevant pension funds.
The applicants sought payment of outstanding pension fund contributions from the…
“Retrospective pension fund rule amendments not registered by FSCA do not bind members” says ConCourt
By Michelle David, Amina Yuda & Ntokozo Ngubane on
The Constitutional Court has provided much needed certainty to the retirement fund industry following the surprising April 2022 judgment of the Supreme Court of Appeal in Municipal Employees Pension Fund & Another v Pandelani Midas Mudau and Another.
On 02 August 2023, the Constitutional Court overturned the SCA judgment. The facts of the matter…
Automatic Payment Portal Systems cannot be used as a defence to pension interest claims
By Michelle David on
This blog was co-authored with Rory Scott, Candidate Attorney.
On 15 March 2023, the Financial Services Tribunal dismissed a reconsideration application, ruling that a fund cannot rely on a benefit being in the process of being automatically paid as a defence to a pension interest claim.
The non-member spouse filed a complaint on 12 May…
Use of day-to-day benefits account to fund PMB conditions
By Michelle David on
In October 2022, the High Court in KeyHealth Medical Scheme v Ngoepe No and Others considered whether the court a quo was correct in finding that a medical scheme was prohibited from using day-to-day benefits to fund the treatment and costs of Prescribed Minimum Benefit (PMB) conditions. The court found that the source of the…
Prescription and claims for interest on late payments
By Michelle David on
This blog was co-authored by: Bwanika Lwanga, Candidate Attorney
In June 2022, the High Court held that a claim by a provident fund for interest on late-paid contributions had prescribed.
The parties signed an acknowledgement of debt on 26 November 2013 for a total of R12 488 219. 04 owed by an employer to the…
The power of trustees to invest where profits and principles conflict
By Michelle David on
This blog was co-authored by Bwanika Lwanga, Candidate Attorney
The English judgment of Butler-Sloss & Ors v The Charity Commission for England and Wales & Anor [2022] EWHC 974 (Ch), considered the question of whether the trustees of two charitable trusts could adopt investment policies that exclude profitable potential investments on the basis…
Jurisdiction of Pension Funds Adjudicator and Financial Services Tribunal over non-participating employers
By Ntokozo Ngubane & Michelle David on
On 23 February 2022, the Financial Services Tribunal (FST) reinforced that an employee who does not have a “complaint” as provided for, in section 30A of the Pension Funds Act,1956 (PFA) cannot have recourse under the PFA.
The fact of the case are:
- The applicant was employed as a truck driver by during the
…
A pension fund cannot challenge the Pension Fund Adjudicator’s section 37C decision
By Michelle David on
A pension fund failed in its application for reconsideration of the Pension Fund Adjudicator’s (PFA) decision to refer the matter back to the fund for reconsideration because, according to the Financial Services Tribunal the fund is not a ‘person aggrieved’ as required by section 230 of the Financial Sector Regulation Act of 2017.
The fund…
Employer ordered to pay costs of application to the Financial Services Tribunal
By Michelle David on
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…