Issue: July/Sept 2010


Large hole is filled

A valuable contribution and insightful commentary, believes Vuyani Ngalwana of the volume on pensions law produced by Rosemary Hunter and her team. Part of its worth is in taking practitioners through the gobbledegook.

Vuyani Ngalwana

Ngalwana . . .
clarifications supplied

Having worked closely with the Pension Funds Act in my previous incarnation as pension funds adjudicator and, for a number of years before that, as a practising advocate, I can say confidently that this book fills a gaping hole in SA’s pension law landscape.

Until now, pension law practitioners (including trustees and administrators) have been left radar-less by the largely inconsistent interpretations of the Act’s provisions from the three adjudicators who have come and gone. This is unavoidable because the rulings of the adjudicator do not set precedent.

An example of this inconsistency is identified by the authors in relation to s30A. Prof John Murphy (now a judge of the High Court) took the view that a complaint must first be lodged with the fund or participating employer before it is referred to the adjudicator. Ms Mamopudi Mohlala (now director-general at the Communications department) and I took the view that the right first to lodge a complaint with the employer or fund can be waived by the member for whose benefit that right is conferred.

The authors provide useful insights as to what correct understanding of the section ought to be. That is the book’s value. Unlike a casebook, it does not simply dish up excerpts from a reported judgment and then add a brief note.

Also, commentary on the so-called “surplus legislation” provisions (s15B to s15K) is the most comprehensive yet. These provisions, as the authors themselves admit, are “not a model of clarity”.But the authors have done a great job in helping readers navigate through what is otherwise opaque (albeit well-meaning) actuarial prosaic gobbledegook.

The part of this book that traces the brief history of the Act (more accurately the development of the Act since 1956) reveals, painfully, that pension funds haven’t much of a history in SA at all. With only one paragraph dedicated to the history of pension funds in this country (in contra-distinction to the development of pension funds after promulgation of the 1956 Act), I was left wondering whether the authors did try their best to do some digging.

SA is a former British colony. The history of UK pensions legislation dates back to the 1597 and 1601 Poor Laws under the reign on Elizabeth I. The Superannuation Act of 1834 heralded the first non-contributory pension funds for civil servants. I thus find it difficult to believe that the Cape Colony (under British rule since 1806) and Natal (since 1843) had nothing resembling pension funds under British rule, but that only the Transvaal republic was the leading light in this regard as late as 1882 soon after its annexation by Disraeli.

However, this is understandable since the focus of the book is more commentary on, rather than a history of, the Act. Perhaps the second edition will tell us definitively whether it is indeed so that we have no pensions history worthy of a mention.

  • The Pension Funds Act: A Commentary by Rosemary Hunter, Johan Esterhuizen, Tashia Jithoo and Sandile Khumalo; 805pp; R1 881.