National Tertiary Retirement Fund v Sithole NO and Another (4150/2007) [2008] ZAGPHC 62 (6 February 2008)

National Tertiary Retirement Fund v Sithole NO and Another (4150/2007) [2008] ZAGPHC 62 (6 February 2008)

The court held that the Registrar's discretion under section 12 of the Pension Funds Act is not limited to the financial soundness of the amendment but extends to its consistency with the Act as a whole. The proposed rule amendment would transfer the liability for guaranteed pension benefits from the Fund to participating employers, thereby removing the protection afforded to members under the Act. This arrangement is not authorised by the Pension Funds Act and is inconsistent with its provisions. Furthermore, the amendment would artificially create a surplus by shedding the Fund's responsibility, which is not financially sound. The Registrar was justified in refusing to approve and...

Citation
[2008] ZAGPHC 62
Parties
Applicant: National Tertiary Retirement Fund; Respondent: Msakazi Nteku Solomon Sithole N.O.; Respondent: Registrar of Pension Funds
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
6 February 2008
Case Number
4150/2007
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with costs, including costs consequent upon the employment of two counsel.
Judges
Rasefate
Legal Topics
Judicial Review Under Paja, Pension Funds Act Section 12, Rule Amendment Registration, Financial Soundness, Discretion of Registrar, Members Benefit Reduction
Administrative Law Civil Procedure Banking and Finance Judicial Review Under Paja Pension Funds Act Section 12 Rule Amendment Registration Financial Soundness Discretion of Registrar +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 6 Party arguments 2
Sign in to unlock

Parties

National Tertiary Retirement Fund

Applicant

Msakazi Nteku Solomon Sithole N.O.

Respondent

Registrar of Pension Funds

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the Appeal Board's decision to uphold the Registrar's refusal to approve and register the Fund's rule amendment was lawful.
  2. 2 Whether the Registrar's discretion under section 12 of the Pension Funds Act was exercised within the scope of the Act.
  3. 3 Whether the rule amendment is inconsistent with the Pension Funds Act and financially unsound.

Ratio Decidendi

The court held that the Registrar's discretion under section 12 of the Pension Funds Act is not limited to the financial soundness of the amendment but extends to its consistency with the Act as a whole. The proposed rule amendment would transfer the liability for guaranteed pension benefits from the Fund to participating employers, thereby removing the protection afforded to members under the Act. This arrangement is not authorised by the Pension Funds Act and is inconsistent with its provisions. Furthermore, the amendment would artificially create a surplus by shedding the Fund's responsibility, which is not financially sound. The Registrar was justified in refusing to approve and...

Court Disposition

Application dismissed with costs, including costs consequent upon the employment of two counsel.

Orders

  • The application is dismissed with costs, such costs to include the costs consequent upon the employment of two counsel.