Pension Funds Adjudicator asks for registrar intervention

Muvhango Lukhaimane, the Pension Funds Adjudicator

LL Barlow of Port Elizabeth complained to the Office of the Pension Funds Adjudicator about his difficulty in getting the Chemical Industries National Provident Fund (first respondent) to transfer his fund benefits to the Aspen Provident Fund.

The complainant commenced employment with Pharmacare Limited t/a Aspen Pharmacare on 1 June 1996 and was a member of the first respondent which was administered by NBC Fund Administration Services (Pty) Ltd (third respondent).

He submitted that he requested the first and third respondents to have his fund benefit transferred in terms of section 14 of the Act to the Aspen Provident Fund in 2011. However, this did not occur because his transfer request was not taken seriously by both the first and third respondents.

He further submitted that meetings were held with the first respondent, he was interviewed and presentations were made by the first respondent. This matter was on the board of the first respondent's agenda during one of its meetings. He further submitted that he also followed every step in the rules of the first respondent for the transfer to be effected.

Capacity as administrator

In its capacity as the administrator of the first respondent, the second respondent confirmed in its response to the complaint that the request for the transfer of a provident fund benefit in terms of section 14 of the Act must be presented to the board through the complainant's Local Advisory Committee.

Subsequent to receiving the request, the board must investigate same by conducting comprehensive communication with the members concerned. The board must ensure that the transfer is reasonable and equitable and that it accords full recognition of the rights and reasonable expectations of the members.

The second respondent submitted that the first respondent had not received any representation from the relevant Local Advisory Committee. Therefore, the board could not conduct a thorough investigation and a comprehensive communication exercise. Therefore, the first respondent had been unable to transfer the complainant's fund benefit.

In her determination, Lukhaimane said once the first respondent receives an application for a transfer in terms of section 14 of the Act, it needs to fulfil the administrative processes with the receiving fund and ensure that the information required by the Registrar to make his/her decision as to the equity and reasonableness of the transfer, is included.

Standard trumps considerations

The standard as set for the Registrar by the provisions of section 14(1) of the Act would trump any considerations by a board of management into the reasonableness of the benefit expectations of the transferring members.

"It is the duty of the Registrar to ensure that a transfer is equitable. Once the complainant and the third respondent submit the necessary information in terms of section 14 of the Act, the board of the first respondent must process and forward the transfer application to the Registrar and not usurp the duties of the Registrar. "Therefore, the first respondent should process the transfer application in terms of section 14 of the Act without any further delay," Lukhaimane said.

"In light of the number of complaints received by this Tribunal in respect of the first respondent relating to the transfers in terms of section 14 of the Act, this complaint will referred to the Registrar, requesting her urgent intervention as this conduct amounts to maladministration."

Lukhaimane ordered the complainant to submit his representation to the Local Advisory Committee, within four weeks from the date of the determination. She ordered the board of the first respondent to investigate and assess the representation made in terms of Rule 10.2.2 of the first respondent's rules and communicate with the complainant, within two weeks of receipt of the representation.

The board of the first respondent was ordered to compile a report of its findings along with its assessment in terms of Rule 10.2.3 and submit these along with the complainant's application to the Registrar of Pension Funds within two weeks from finalising its investigations.