Michelle David

Subscribe to all posts by Michelle David

Principle of equity cannot override the provisions of the Pension Funds Act

The principles of equity, despite the equitable jurisdiction of the Pension Funds Adjudicator, cannot override the provisions of the Pension Funds Act (PFA) by permitting a fund to act in contravention of the PFA. The Financial Services Tribunal (Tribunal) has reaffirmed this position. The applicant had been a municipal councillor since 5 August 2016 but … Continue reading

‘De bloedige hand’ principle and its application in s37C pension fund distributions

The Pretoria High Court has refused to extend the ‘bloedige hand’ principle in instances where the beneficiary of a death benefit was the child of the deceased’s killer. The ‘bloedige hand’ principle holds that no person who unlawfully causes the death of another may inherit from the deceased. The deceased and his wife were killed … Continue reading

Trustees’ duty to exercise independent discretion on withholding pension benefits

If an employer requests that provident fund benefits be withheld from an employee due to misconduct, the trustees of the fund must still independently exercise their discretion to satisfy themselves that a sufficient case against the employee has been established, in order to withhold the benefit. The Financial Services Tribunal has again considered the withholding … Continue reading

Amendments to the Financial Sector Regulations published

The Minister of Finance, has published amendments to the Financial Sector Regulations under Gazette 43581 intended to simplify the process of appointing the Commissioner and Deputy Commissioner of the Financial Sector Conduct Authority (FSCA). The amendments provide that: The Minister must re-appoint a shortlisting panel (two panellists being the Deputy Govrnor of the South African … Continue reading

Equitable Jurisdiction: The Pension Funds Adjudicator cannot make orders disregarding statutory provisions

Since 1 April 2019, the Pension Funds Adjudicator has been empowered to apply the principles of equity in dealing with complaints. The concept of an equity jurisdiction has raised concerns in the industry due to its discretionary nature. The concept of ‘equitable jurisdiction’ has been the subject of a recent determination by the Financial Services … Continue reading

Economic relief measures for members of pension funds

People unable to work due to the pandemic may be looking to access their pension credits in this time of financial hardship. The position in South Africa remains that a member cannot access their pension benefits while they are still in service. Several other countries have however included, as part of their economic relief packages, … Continue reading

COVID-19 and the potential use of medical scheme reserves

Medical scheme trustees cannot take a business as usual approach during the COVID-19 pandemic. Boards should be giving thought to the value of their reserves and whether using such reserves would be of benefit to members. At a minimum, trustees need to understand the options available to them when considering using scheme reserves. In terms … Continue reading

Council for Medical Schemes banning of low cost benefit options

Healthcare has found its way into everyday conversations more so than in recent years. The steadfast movement towards a National Health Insurance has inspired vigorous yet contrary emotions with each side holding their position with equal conviction. On 4 December 2019 a decision by the Registrar and Chief Executive Officer of the Council for Medical … Continue reading

Coronavirus and pension funds – South Africa

In the wake of coronavirus and the possibility of negative impacts on the economy, trustees of pension funds need to focus on their fiduciary duties. Trustees must ensure that they are well-advised on the possible impact of COVID-19 on their investments and seek to mitigate any loss to assets under investment. The mitigation must include … Continue reading

FSB can’t challenge the decision of appeal board

The appeal board established under the Financial Services Board Act overturned a decision made under section 14 of the Pension Fund Act by the Registrar of Pension Funds to permit a transfer of business by a pension fund. The court held that the registrar does not have legal standing to take the appeal board decision on … Continue reading
LexBlog