Housing Development Agency Act, 2008
R 385
Labour Relations Act, 1995 (Act No. 66 of 1995)Bargaining Council for the South African Road Passenger (SARPBAC)Rules Retirement Fund (Provident)Rule B 1 - Management of the Fund |
B 1.1 LegaI entity
Upon registration under the ACT, the FUND shall become a separate corporate body and legal person distinct from its MEMBERS, it shall be the lawfuI owner of its property and it shall be capable in law of suing and of being sued in its own name.
B 1.2 BOARD OF TRUSTEES
B 1.2.1 Representation on BOARD OF TRUSTEES
| B1.2.1.1 | The UNIONS and EMPLOYERS who are party to the COUNCIL shall appoint the number of TRUSTEES referred to in the SCHEDULE, as well as an alternate for each TRUSTEE, to act during the absence of that TRUSTEE. |
| B1.2.1.2 | MEMBERS do not elect TRUSTEES to the BOARD OF TRUSTEES. Instead an INDEPENDENT TRUSTEE is appointed by the BOARD OF TRUSTEES. This procedure is subject to the FUND receiving exemption from the REGISTRAR in terms of Section 7B(1)(b)(i) of the ACT. |
| B1.2.1.3 | The appointment of the INDEPENDENT TRUSTEE shall be reviewed annually by the BOARD OF TRUSTEES. The incumbent INDEPENDENT TRUSTEE shall be eligible for re-appointment. |
| B1.2.1.4 | The office of an alternate shall, where applicable, be subject to the same conditions to which the office of a TRUSTEE is subject. |
| B1.2.1.5 | The TRUSTEES shall hold office for the PERIOD OF OFFICE set out in the SCHEDULE. Retiring TRUSTEES shall be eligible for re-appointment |
| B1.2.1.6 | Vacancies shall be filled by appointment, in the case of a vacancy amongst the TRUSTEES |
B 1.2.2 Vacancies
All vacancies shall be filled within 3 months after having become vacant, in the manner referred to in Rule B 1.2.1.
B 1.2.3 Persons not eligible to hold office as TRUSTEE
No person in any of the following categories shall be eligible for appointment as a TRUSTEE and, if a TRUSTEE at any time falls in any such category, he shall cease to hold office:
| B 1.2.3.1 | a minor; |
| B 1.2.3.2 | any person who is insane or otherwise incapable of acting; |
| B 1.2.3.3 | any person who is disqualified from being a director in terms of an order under the Companies Act No 71 of 2008; |
| B 1.2.3.4 | an unrehabilitated insolvent; |
| B 1.2.3.5 | any person removed from an office of trust on account of misconduct; |
| B 1.2.3.6 | any person who has been convicted and sentenced either to imprisonment, or to a fine for 1 of the following: theft, fraud, forgery or uttering a forged document, perjury, an offence under the Prevention and Combating of Corrupt Activities Act 12 of 2004, any offence involving dishonesty or any offence in connection with the promotion, formation or management of a company. |
B 1.2.4 Termination of office
A TRUSTEE or alternate TRUSTEE shall cease to hold office if:
| B 1.2.4.1 | he resigns by giving written notice to the FUND; |
| B 1.2.4.2 | in respect of: |
| (i) | a TRUSTEE, he fails to attend 3 consecutive TRUSTEE meetings; and |
| (ii) | an alternate TRUSTEE, he fails to attend 3 consecutive TRUSTEE meetings where the TRUSTEE of which he is an alternate has also been absent for the same 3 consecutive TRUSTEE meetings, |
without a good reason as accepted by the BOARD OF TRUSTEES;
| B 1.2.4.3 | in the case of a TRUSTEE appointed in terms of Rule B 1.2.1.1, the BOARD OF TRUSTEES decides to remove such TRUSTEE from office at the request of the EMPLOYER or UNION that appointed the TRUSTEE in question, as the case may be; |
The TRUSTEE or alternate TRUSTEE shall cease to hold office in the circumstances set out in Rules B 1.2.4.1 to B 1.2.4.3 above, with 1 month's written notice to/by (as the case may be) the BOARD OF TRUSTEES.
B 1.3 Powers and duties of the BOARD OF TRUSTEES
Subject to the provisions of the ACT and other applicable legislation the BOARD OF TRUSTEES is empowered to manage and control the FUND in accordance with this Rule in order to realise the objectives of the FUND and, without in any way detracting from the general intent of this Rule, possesses the following powers and duties:
| B1.3.1 | to elect a chairperson and vice-chairperson to serve for no longer than 1 year. Both the chairperson and vice-chairperson shall be eligible for re-election. Alternatively, any other TRUSTEE may be elected to serve as chairperson/vice-chairperson. If the chairperson is absent from any meeting, the vice-chairperson shall preside at the meeting. If both the chairperson and vice-chairperson are absent from a meeting, the TRUSTEES shall elect 1 of the TRUSTEES to act as chairperson for that meeting; |
| B1.3.2 | to arrange that the FUND be registered in terms of the ACT; |
| B1.3.3 | to effect POLICIES of insurance with 1 or more INSURERS for the purpose of investing the FUND'S monies in order to meet the cost of providing benefits in terms of these RULES and/or to insure the GROUP INSURANCE BENEFITS payable in terms of these RULES; |
| B1.3.4 | to arrange for EMPLOYERS to pay the contributions to the FUND; |
| B1.3.5 | to deal with any amounts payable by the INSURER in terms of the POLICIES in accordance with these RULES, subject to requirements that may legally be imposed by the REGISTRAR; |
| B1.3.6 | to invest, lend, put out at interest, place on deposit, make advances of, or otherwise deal with all monies of the FUND upon such securities and in such manner as they may determine from time to time, and, in particular, to invest the whole or part of the monies of the FUND, for such period and on such terms as they may determine, in an investment policy issued by an INSURER; provided the BOARD OF TRUSTEES may delegate their powers to make investments of any nature to any 1 or more TRUSTEES, or to a financial institution or to a person approved in terms of applicable legislation at the time, and may defray expenses incurred as a result of such delegation out of the monies of the FUND; |
| B1.3.7 | to appoint a LIQUIDATOR, when necessary; |
| B1.3.8 | to appoint a PRINCIPAL OFFICER of the FUND, by ensuring the following: |
| (i) | such person complies with the requirements stipulated in the applicable legislation; |
| (ii) | such person is informed of his duties and responsibilities in terms of the applicable legislation; and |
| (iii) | the REGISTRAR is informed of such appointment within 30 days of the FUND'S registration date; |
| B1.3.9 | to annually review the fitness and propriety of the appointed PRINCIPAL OFFICER, and inform the REGISTRAR accordingly; |
| B1.3.10 | to appoint a VALUATOR (when required); |
| B1.3.11 | to appoint the ADMINISTRATOR |
| B1.3.12 | to appoint an AUDITOR; |
| B1.3.13 | to provide the ADMINISTRATOR with such particulars about MEMBERS as it may require for the purposes of the FUND; |
| B1.3.14 | to make the necessary arrangements with the ADMINISTRATOR for deducting tax, where applicable; |
| B1.3.15 | to declare any personal interest in any matter under discussion and refrain from voting thereon; |
| B1.3.16 | to delegate any power of decision on any matter that is vested in them, on such terms and conditions as they may specify, to a sub-committee(s), of such of their number as they nominate. The decision of a sub-committee to which a power is so delegated shall be recorded in the minutes at the next meeting of the TRUSTEES, and shall be regarded as a decision of the FUND. It is specifically provided that the full BOARD OF TRUSTEES shall retain full responsibility for any sub-committee to whom the TRUSTEES' power of decision making has been delegated in terms of these RULES. |
| B1.3.17 | in general, to take such steps as shall, in its opinion, be in the interests of the FUND; |
| B1.3.18 | the TRUSTEES shall have the power to furnish a guarantee in respect of a loan by some other person to a MEMBER for the purpose referred to in Section 19(5)(a) of the ACT on behalf of the FUND. Such guarantee will only be extended: |
| (i) | if a MEMBER has at least one year's membership in the FUND; and |
| (ii) | where the value of the MEMBER'S SHARE is greater than the value of his equivalent benefit under the SARPBAC Retirement Fund (Pension); and |
| (iii) | no similar loan exists under the SARPBAC Retirement Fund (Pension) |
provided that the amount of the guarantee under this FUND shall not exceed 80% of the value of the MEMBER'S WITHDRAWAL BENEFIT net of any deductions in terms of section 37D of the ACT including taxation calculated as if the MEMBER had withdrawn on the date of the application. Such guarantee shall be subject to the requirements of the ACT;
| B1.3.19 | to ensure good governance of the FUND by implementing appropriate and cost effective policies and processes that complies with the requirements of the RULES and the law, including formal publications by the REGISTRAR, the South African Revenue Service and other relevant regulatory authorities. |
The powers, duties and authorities of the TRUSTEES set out in these RULES shall in no way limit or usurp the generally accepted responsibilities of the TRUSTEES, including those duties set out in the Financial Institutions (Protection of Funds) Act No. 28 of 2001.
B 1.4 PRINCIPAL OFFICER
| B 1.4.1 | The PRINCIPAL OFFICER shall represent the FUND in all respects as far as its dealings with the REGISTRAR and COMMISSIONER is concerned. |
| B 1.4.2 | If the PRINCIPAL OFFICER is absent from the Republic of South Africa or is otherwise unable to perform his duties, the BOARD OF TRUSTEES will within 30 days appoint another person to act as PRINCIPAL OFFICER for the period of his absence or inability. |
| B 1.4.3 | The REGISTRAR shall be notified of: |
| (i) | all appointments of a PRINCIPAL OFFICER; and |
| (ii) | terminations and/or resignations of the previous appointed PRINCIPAL OFFICER |
as stipulated in the applicable legislation.
B 1.5 Meetings, minutes and accounts
| B 1.5.1 | The BOARD OF TRUSTEES shall meet at least once in every 3- month period. The chairperson of the BOARD OF TRUSTEES may, whenever he finds it necessary, convene a meeting of the BOARD OF TRUSTEES to discuss the business of the FUND, and shall give 15 days notice of such meeting to the TRUSTEES. With the approval of the majority of the TRUSTEES, the 15-day period may be waived. In all such meetings the decision of the majority shall be binding. |
The BOARD OF TRUSTEES must make a reasonable effort to obtain a majority. Where no majority can be obtained on any matter, the matter will be referred to an arbitrator. The arbitrator's decision will be regarded as a decision made by the BOARD OF TRUSTEES and will be binding on all parties.
| B 1.5.2 | Any TRUSTEE may request the chairperson in writing to convene a meeting of the BOARD OF TRUSTEES in order to deal with such matters as are set out in the request. If the chairperson regards the request as reasonable he shall convene a meeting as soon as possible, but in any event not later than 21 days after the date of receipt of the request, provided that if the request is supported by a majority of TRUSTEES and the chairperson fails to convene a meeting, they may themselves convene a meeting after notifying the chairperson of their intentions. |
| B 1.5.3 | A quorum of the BOARD OF TRUSTEES is qualified to carry out any duties of the BOARD OF TRUSTEES despite any vacancy that may arise on the BOARD OF TRUSTEES. If a quorum is present the decision of the majority shall be binding. Voting at properly convened meetings shall be conducted as the chairperson may direct and voting by proxy shall be allowed provided that the chairperson has been notified thereof prior to the convening of the meeting. |
| B 1.5.4 | Minutes must be kept of the meeting of the BOARD OF TRUSTEES and at each meeting the minutes of the previous meeting must be signed by the chairperson after they have been approved by the meeting. |
| B 1.5.5 | A resolution, in writing, signed by a quorum of the TRUSTEES for the time being, shall be as valid and effectual as if it had been passed at a meeting of the TRUSTEES properly called and constituted. Such resolution must be noted at the next meeting of the BOARD OF TRUSTEES and included in the minutes of that meeting. |
| B 1.5.6 | The MEMBERS and the EMPLOYER are entitled at all reasonable times to view the books of the FUND and the minutes of the meetings of the BOARD OF TRUSTEES and can, on payment of an amount determined by the BOARD OF TRUSTEES, obtain copies of the RULES and the latest financial statement relating to the FUND. |
B 1.6 Interpretation of the RULES
In all matters relating to the interpretation of these RULES and/or the administration of the FUND, the decision of the BOARD OF TRUSTEES shall be final and binding on the FUND, the EMPLOYER(S) and the MEMBER(S) as the case might be, provided that such ruling is not contrary to these RULES.
B 1.7 Complaints and dispute resolution
An aggrieved party has the right to lodge a written complaint with the PRINCIPAL OFFICER or any TRUSTEE. A complaint so lodged shall be properly considered and replied to in writing by the PRINCIPAL OFFICER or a designated TRUSTEE within 30 days after the receipt thereof. If the complainant is not satisfied with the reply, or if the FUND fails to reply within 30 days after the receipt of the complaint the complainant may lodge the complaint with the Pension Funds Adjudicator.
Notwithstanding anything to the contrary contained in the provisions above, the complainant may refer the matter for arbitration in terms !of and in the manner set out in the Arbitration Act, No 42 of 1965, and according to the rules of the Association of Arbitrators (Southern Africa), provided that:
| (1) | such referral takes place within 2 months of the date of the BOARD OF TRUSTEES' decision, |
| (2) | such matter is a competent and compellable matter for arbitration, and |
| (3) | the decision of the BOARD OF TRUSTEES shall remain binding during the process of arbitration. |
Once the arbitration process is concluded, the decision of the arbitrator shall be binding. The payment of the cost of the arbitration shall follow the award of the arbitrator.
B 1.8 Alteration to the RULES
Thee RULES may be altered by the BOARD OF TRUSTEES at any time, provided that the alteration is approved by the COUNCIL, where it affects the 'EMPLOYER'S contribution rate, the maximum or minimum GROUP INSURANCE BENEFIT, or any other EMPLOYER costs, and is registered by the REGISTRAR and approved by the COMMISSIONER, on the understanding that if such alterations affect the ADMINISTRATOR'S rights and liabilities, such alterations shall be binding on the ADMINISTRATOR only in so far as the ADMINISTRATOR has approved such alterations.
B 1.9 Notification to MEMBERS
The PRINCIPAL OFFICER shall notify the MEMBERS of the alterations to the RULES, at least once a year.
B 1.10 Fidelity Insurance
The BOARD OF TRUSTEES shall ensure that a policy of insurance is in place to indemnify the FUND against all losses resulting from the dishonesty or fraud of any of the FUND'S officers (including the TRUSTEES).
Where applicable, the BOARD OF TRUSTEES shall require service providers to maintain fidelity cover or guarantees to indemnify the FUND against any loss resulting from the negligence, dishonesty or fraud of any person whom they employ.
B 1.11 Expenses
The cost of:
| (i) | the administration charges payable to the ADMINISTRATOR, |
| (ii) | statutory or other levies which are imposed, |
| (iii) | intermediary commission, |
| (iv) | AUDITOR'S fees, |
| (v) | TRUSTEE allowances and attendance fees; |
| (vi) | Any other fees for services which are not explicitly provided for in these RULES, or |
| (vii) | any other expense which may be incurred, |
in respect of this FUND will be borne by this FUND.
A TRUSTEE will receive an attendance fee per TRUSTEE meeting attended as well as an allowance. Such attendance fees and allowances shall be paid in terms of a remuneration policy for TRUSTEES set by the BOARD OF TRUSTEES from time to time.
B 1.12 Currency
Payments due to or by the FUND, shall be made in the currency of the Republic of South Africa; provided that the TRUSTEES may, in special circumstances, authorise payments in such other currency as it may decide.
B 1.13 Unforseen circumstances
In the event of a contingency arising which has not been provided for in these RULES, the decision of the TRUSTEES thereon, if not inconsistent with the provisions of these RULES, shall be final and conclusive.
