Members of retirement funds who are aggrieved by a fund’s decision often turn to the Pension Funds Adjudicator for redress. And if they are unhappy with the Adjudicator’s decision, they may take their case to the Financial Services Tribunal (FST).
The legislation in terms of which these bodies operate imposes time-frames within which complaints or applications must be lodged. And although the FST can condone the late filing of reconsideration of applications, it will do so only on good cause.
The following decision by the FST clarifies the tribunal’s approach to condonation and is an example of a bad cause.
The applicant (“AM”) was employed by the University of KwaZulu-Natal from February 1996 until he retired in March 2021. He paid contributions to the Amalgamated Institutions Pension Fund (AIPF) between February 1996 and June 2000, whereafter he contributed to the UKZN Pension Fund.
When AM retired, his contributions to the AIPF were not factored into his pension pay-out. Therefore, he complained to the Adjudicator in May 2021.
On 8 November 2021, the Adjudicator found that her office did not have jurisdiction to investigate the complaint because it was time-barred. The complaint related to the period between February 1996 and June 2000, part of which was three years before the complaint was lodged.
Section 30I(1) of the Pension Funds Act states: “The Adjudicator shall not investigate a complaint if the act or omission to which it relates occurred more than three years before the date on which the complaint is received by him or her in writing.”
FSRA’s time-frames for applications
On 29 January 2023, AM applied to the FST for a reconsideration of the Adjudicator’s decision. But he ran into another time-bar.
In terms of section 230(2) of the Financial Sector Regulation Act (FSRA), an application for reconsideration must be made:
- If the applicant requested reasons in terms of section 229, within 30 days after the statement of reasons was given to the person; or
- In all other cases, within 60 days after the applicant was notified of the decision, or such longer period as may on good cause be allowed.
The application was made about 14 months after the Adjudicator’s decision; it was therefore out of time.
AM sought condonation for late-filing.
Tribunal’s approach to condonation
The tribunal’s rules state the following about condonation applications:
- An application for condonation within the jurisdiction of Chapter 15 of the FSRA may be made on affidavit or in written submissions and must be filed with the secretariat and all other parties to the proceedings.
- It must be succinct and show good cause.
- If opposed by an interested party, the grounds of opposition must also be stated succinctly.
- Depending on the nature of the application, the application, opposed or unopposed, may be decided on the papers by the chairperson or the panel chairperson presiding over the tribunal panel, or by the tribunal panel during the hearing.
In this matter, the FST said that in deciding whether the applicant has shown “good cause”, the tribunal exercises a discretion, having regard to:
- The extent of the delay;
- The explanation proffered for the delay;
- The applicant’s prospects of success; and
- The relative prejudice to the parties that would be occasioned by the application being granted or refused.
The FST quoted what the Supreme Court of Appeal held in the case of Uitenhage Transitional Local Council v South African Revenue Service: “Condonation is not to be had merely for the asking; a full, detailed, and accurate account of the causes of the delay and their effects must be furnished so as to enable the court to understand clearly the reasons and to assess the responsibility. It must be obvious that if the non-compliance is time-related, then the date, duration, and extent of any obstacle on which reliance is placed must be spelled out.”
AM alleged he could not bring the application within 60 days because he sought to “locate the funds” from “stakeholders”, according to the FST’s decision.
But, the tribunal said, the UKZN Pension Fund acknowledged that the AIPF contributions were paid to it in September 2000 on behalf of AM. This was also apparent from the Adjudicator’s determination.
Therefore, AM’s explanation that the delay was occasioned by the fact that he was trying to locate the funds was “wholly unsatisfactory”, the tribunal said.
Moreover, AM claimed that he located the funds on 12 November 2022. However, AM did explain why he took a further two-and-a-half months to bring his application.
The tribunal dismissed the application.
