Engineering Industries Pension Fund and Another v Installair (Pty) Ltd and Others (1633/2023) [2025] ZAWCHC 8 (16 January 2025)

Engineering Industries Pension Fund and Another v Installair (Pty) Ltd and Others (1633/2023) [2025] ZAWCHC 8 (16 January 2025)

The court found that the employer, Installair (Pty) Ltd, failed to pay over pension and provident fund contributions as required by section 13A of the Pension Funds Act. The directors, Paolo Rinalda Orso and Sandra Martha Orso, were found to be personally liable for the outstanding contributions, as they were regularly involved in the management of the employer's financial affairs. The explanations advanced by the Respondents were rejected as implausible and unsupported by evidence. The court held that statutory obligations under the Pension Funds Act cannot be avoided by unilateral conduct or by citing the Covid-19 pandemic, especially for periods prior to the lockdown. The directors'...

Citation
[2025] ZAWCHC 8
Parties
Applicant: Engineering Industries Pension Fund; Applicant: Metal Industries Provident Fund; Respondent: Installair (Pty) Ltd (in liquidation); Respondent: Paolo Rinalda Orso; Respondent: Sandra Martha Orso
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
16 January 2025
Case Number
1633/2023
Procedural Posture
Civil Application / Opposed Application for Payment of Outstanding Pension and Provident Fund Contributions and Enforcement of Personal Liability Provisions Under the Pension Funds Act.
Outcome
Application granted. Second and Third Respondents are ordered to provide outstanding schedules, pay the quantified contributions and interest, and pay costs on an attorney and own client scale.
Judges
Parker
Legal Topics
Pension Funds Act, Personal Liability of Directors, Outstanding Contributions, Statutory Obligations, Liquidation, Prescribed Interest
Banking and Finance Civil Procedure Pension Funds Act Personal Liability of Directors Outstanding Contributions Statutory Obligations Liquidation Prescribed Interest

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Parties

Engineering Industries Pension Fund

Applicant

Metal Industries Provident Fund

Applicant

Installair (Pty) Ltd (in liquidation)

Respondent

Paolo Rinalda Orso

Respondent

Sandra Martha Orso

Respondent

Procedural Posture

Civil Application / Opposed Application for Payment of Outstanding Pension and Provident Fund Contributions and Enforcement of Personal Liability Provisions Under the Pension Funds Act.

Legal Issues

  1. 1 Whether the directors of the employer are personally liable for outstanding pension and provident fund contributions under section 13A(8) and (9) of the Pension Funds Act.
  2. 2 Whether the employer's directors can avoid liability by claiming no actual deductions were made or that circumstances were beyond their control.
  3. 3 Whether the failure to pay contributions for the relevant periods is excusable due to the Covid-19 pandemic or liquidation.

Ratio Decidendi

The court found that the employer, Installair (Pty) Ltd, failed to pay over pension and provident fund contributions as required by section 13A of the Pension Funds Act. The directors, Paolo Rinalda Orso and Sandra Martha Orso, were found to be personally liable for the outstanding contributions, as they were regularly involved in the management of the employer's financial affairs. The explanations advanced by the Respondents were rejected as implausible and unsupported by evidence. The court held that statutory obligations under the Pension Funds Act cannot be avoided by unilateral conduct or by citing the Covid-19 pandemic, especially for periods prior to the lockdown. The directors'...

Court Disposition

Application granted. Second and Third Respondents are ordered to provide outstanding schedules, pay the quantified contributions and interest, and pay costs on an attorney and own client scale.

Orders

  • Second and Third Respondents must provide outstanding pension and provident fund contribution schedules for May 2020 to July 2020 within 30 calendar days.
  • Second and Third Respondents must pay R93,715.53 to the Applicants for contributions already determined but not paid over.