Abstract
This paper responds to the fascinating article written by Mr Thulani Nkosi relating to the devastating effects of employers failure to pay over their employees' retirement funds contributions to the relevant retirement funds. In particular, I respond to Nkosi’s main argument that retirement funds should pay withdrawal benefits notwithstanding the fact that they did not receive members’ retirement fund contributions from contributing employers. I argue that while such an approach is understandable, it is nonetheless, legally unsound and further demonstrates that it is not supported by the law as it stands today. I further argue that Nkosi's reliance on the principle of equity as advocated by Professor John Murphy when he was the Pension Funds Adjudicator to a larger extent does not pay attention to how occupational defined contribution funds operates. The basis of my argument is that defined contribution funds rely on members' contribution and it would not be sustainable for these funds to pay retirement benefits to members whose contributions they did not receive. 
 
Highlights
I have read with interest Nkosi's intriguing and thought-provoking article, "The Rules of an Occupational Retirement Fund and the Problem of Defaulting Employers: A Reconsideration of Orion Money Purchase Pension Fund (SA) v Pension Funds Adjudicator" 2016 PELJ 1-25, which I commend him for
The article responds to the critique levelled at the approach adopted by both our courts and the office of the Pension Funds Adjudicator when adjudicating complaints from retirement fund members whose retirement funds have refused to grant them retirement benefits on the basis that their employers had not paid their contributions into such retirement funds
It has been argued that the office of the Pension Funds Adjudicator blindly enforces the retirement fund rules which prohibit payment of retirement benefits to retirement fund members whose contributions were not received by their retirement funds
Summary
I have read with interest Nkosi's intriguing and thought-provoking article, "The Rules of an Occupational Retirement Fund and the Problem of Defaulting Employers: A Reconsideration of Orion Money Purchase Pension Fund (SA) v Pension Funds Adjudicator" 2016 PELJ 1-25, which I commend him for. Nkosi appears unhappy with what he regards as the lack of enforcement and implementation of the Pension Fund Act (hereinafter referred to as "PFA") in as much as it provides for the protection of retirement fund members who are robbed of their retirement benefits. In setting out his argument, he makes the following main claims: 1. I take issue with Nkosi's recommendation that retirement funds should be held responsible for the payment of retirement benefits where employers failed to provide them with their members' contributions This recommendation might be viewed as understandable and on first sight may seem reasonable. Other than traditional legal sources, I will rely on media reports, because the nonpayment of retirement contributions reflects a social ill which to some extent has been addressed by the media
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
