Muvhango Lukhaimane, Pension Funds Adjudicator

In a victory for long suffering members of the Private Security Sector Provident Fund, the Gauteng High Court dismissed four applications by a security company for the determinations issued by the Pension Funds Adjudicator against it to be set aside.

Mafoko Security Patrols (Pty) Ltd sought an order reviewing and setting aside determinations made by the Pension Funds Adjudicator, Muvhango Lukhaimane.

At the heart of each application was Mafoko’s repeated failure, in some cases over years, to pay contributions due on behalf of employees to the fund. In each case, a former employee in question had lodged a complaint with the PFA, which was then sent to Mafoko and the fund, with the PFA giving them a period within which to attempt to resolve the matter. In all cases, the complaint remained unresolved, requiring an investigation and subsequent determination by the PFA, which was made after requesting the parties’ input. In each case, Mafoko simply ignored the PFA.

In addition to seeking to review and set aside the PFA’s determination, Mafoko also challenged the fund’s computation of arrear contributions as ordered by the PFA and requested the matter to be decided afresh.

The High Court stated that a determination of the PFA shall be deemed to be a civil judgment of any court of law. A writ or warrant of execution may be issued by the clerk or the registrar of the court after expiration of a period of six weeks after the date of the determination provided no has been lodged. No appeal was lodged in respect of the four determinations

Each of the former employees in question sought and obtained a writ of execution. It was at that point that Mafoko finally responded, approaching the court for urgent interdictory relief. Subsequently, the respondents  were interdicted from executing the writ of execution pending this application

The court highlighted the challenge Mafoko would face in pursuing a review of the determination, given its status as a deemed civil judgment of the High Court and the non-compliance with section 7(2) of the Promotion of Administration of Justice Act, No. 3 of 2000, which requires the exhaustion of internal remedies, specifically a review at the Financial Service Tribunal in terms of section 230 of the Financial Sector Regulation Act No. 9 of 2017.

Furthermore, no case was made to suggest that the PFA had acted in a manner justifying the review or setting aside any of the four determinations.  Mafoko also failed to establish the basis on which the fund’s calculations are reviewable. Accordingly, Mafoko could not succeed in its application to review the determinations and fund’s computation, as well as its request for the matter to be decided afresh.

Mafoko’s attempts to withdraw the  applications, tender costs, and pay the arrear contributions owed to the fund were  rejected by the court, notably because they had submitted numerous similar applications, and the judgment in this case would apply to all outstanding matters. Allowing a withdrawal would leave those cases unresolved and place an unnecessary burden on the court’s opposed roll, with cases that could have been resolved speedily.

In addition, Mafoko failed to participate in the proceedings before the PFA and demonstrated a lack of urgency in resolving its employees’ complaints; this was evidenced by the delay in setting down these applications following the granting of the interim interdicts by the court.

Accordingly, allowing a withdrawal of the cases would hinder the resolution of systemic issues. Thus Mafoko’s applications were dismissed with costs.

ENDS