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 determinations issued against it by the Pension Funds Adjudicator (PFA) to be set aside.
Mafoko Security Patrols sought an order reviewing and setting aside determinations made by the adjudicator, Muvhango Lukhaimane.
At the heart of each application was Mafoko’s repeated failure, in some cases over years, to pay contributions due to the fund on behalf of employees.
In each case, a former employee had lodged a complaint with the PFA, with the PFA giving Mafoko and the fund a period within which to resolve the matter. In all cases, the complaint remained unresolved, requiring an investigation and subsequent determination by the PFA. In each case, Mafoko simply ignored the PFA.
In addition to seeking to review and set aside the PFA’s determinations, 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 is 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 a period of six weeks from the date of the determination, provided no appeal 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 relief.
The court highlighted the challenge Mafoko would face in pursuing a review of the determinations, given its non-compliance with the Promotion of Administration of Justice Act, which requires the exhaustion of internal remedies, specifically a review at the Financial Service Tribunal.
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 were 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 attempt to withdraw the applications, tender costs, and pay the arrear contributions owed to the fund was rejected by the court, notably because they had submitted numerous similar applications, and the judgment in this case would apply to all outstanding matters. In addition, Mafoko failed to participate in the proceedings before the PFA and demonstrated a lack of urgency in resolving its employees’ complaints. Thus Mafoko’s applications were dismissed with costs.
PERSONAL FINANCE