| (1) |
The registrar may appoint a special ad hoc tribunal to make a determination, as set out in this section if— |
| (a) |
a fund fails to submit a scheme for the apportionment of actuarial surplus or a nil return in terms of section 15B, within the prescribed period; or |
| (i) |
is not satisfied that the scheme submitted by the board in terms of section 15B is reasonable and equitable; |
| (ii) |
considers that unresolved complaints require investigation which may lead to a review of such scheme; |
| (iii) |
is not satisfied that section 15B(11) has been complied with; or |
| (iv) |
does not agree with the result of the investigation contemplated in section 15B(6); |
(c) the board requests it;
(d) the person appointed in terms of section 15B (3) requests it; or
| (e) |
the board of the fund submits a nil return to the registrar in terms of section 15B(11) and the registrar is not satisfied that a nil return is justified. |
[Section 15K(1) amended by section 28(a) of Act No. 45 of 2013]
| (2) |
The tribunal shall consist of at least three members who must all be independent of any stakeholder in the fund, and of whom— |
| (a) |
at least one shall be a lawyer; |
| (b) |
at least one shall be an actuary; and |
| (c) |
at least two have experience in retirement fund financing: |
Provided that the registrar—
(i) may allow a fund a reasonable opportunity to propose members for the tribunal; and
| (ii) |
must appoint a replacement within a reasonable period of time where a member of a tribunal dies, becomes incapacitated, resigns or the registrar is of the opinion that the member is no longer suitable to hold such position. |
[Section 15K(2) amended by section 28(a) of Act No. 45 of 2013]
| (3) |
The tribunal shall make its determination in relation to the apportionment of actuarial surplus within such period as may be determined by the registrar: Provided that— |
| (a) |
where the tribunal estimates that the cost contemplated in subsection (12) exceeds the actuarial surplus, the tribunal may resign and the fund must submit a scheme under section 15B(1); or |
| (b) |
where the tribunal determines that the fund is not required to submit a scheme in terms of section 15B(1), the tribunal must request the registrar to terminate its appointment and the fund must submit a nil return under section 15B(11). |
[Section 15K(3) amended by section 28(a) of Act No. 45 of 2013]
| (4) |
At least two-thirds of the members of the tribunal shall constitute a quorum. |
[Section 15K(4) amended by section 28(a) of Act No. 45 of 2013]
| (5) |
The tribunal shall elect a chairperson from amongst its members, and inform the registrar of its election, and such chairperson shall have a deliberative vote but no casting vote. |
[Section 15K(5) amended by section 28(a) of Act No. 45 of 2013]
| (6) |
At least two-thirds of the members of the tribunal must agree to any decision or step taken by the tribunal under this section. |
[Section 15K(6) amended by section 28(a) of Act No. 45 of 2013]
| (6A) |
The board must submit to the tribunal— |
| a) |
the report on the statutory actuarial valuation of the fund as at the surplus apportionment date; |
| b) |
any other actuarial or other statement that should be taken into account for purposes of the determination; and |
| c) |
any report by the person appointed in terms of section 15B(3), |
where the report or statement referred to in paragraph (a) or (b) was secured by the board of the fund prior to the appointment of the tribunal: Provided that the registrar must agree with the actuarial surplus quantified by the valuator in the report referred to in paragraph (a) before submission in terms of this subsection.
[Section 15K(6A) inserted by section 28(b) of Act No. 45 of 2013]
(6B)
| a) |
Section 15B, excluding subsections (1), (7), (9) and (11), applies with the changes required by the context to the tribunal and any determination by the tribunal. |
| b) |
For the purposes of paragraph (a), any reference to the board and a scheme in section 15B must be construed as a reference to the tribunal and a determination, respectively. |
[Section 15K(6B) inserted by section 28(b) of Act No. 45 of 2013]
(6C) The tribunal—
| a) |
must take reasonable measures to inform stakeholders of its determination in relation to the apportionment of actuarial surplus and must resolve any objections in respect of the determination; |
| b) |
may not duplicate any of the functions in respect of the apportionment of actuarial surplus or the submission of a nil return in terms of section 15B, performed by the board prior to the appointment of the tribunal, unless the tribunal can demonstrate that it was necessary to do so in order to comply with this Act; |
| c) |
may request an additional report from an independent actuary on matters associated with the apportionment of the actuarial surplus if the tribunal deems it necessary; and |
| d) |
must be satisfied that its determination is reasonable and equitable and accords full recognition to the rights and reasonable benefit expectations of members and former members in respect of service prior to the surplus apportionment date. |
[Section 15K(6C) inserted by section 28(b) of Act No. 45 of 2013]
| (7) |
The tribunal may follow any procedure which it considers appropriate in conducting an investigation, including procedures in an inquisitorial manner, and affording any stakeholder the right to a hearing. |
| (8) |
Notwithstanding section 22 of the Financial Services Board Act, 1990 (Act No. 97 of 1990), the tribunal may obtain copies of any document or correspondence contained in the files of the registrar relating to a fund in connection with which the tribunal is conducting an investigation. |
| (a) |
For purposes of an investigation, the tribunal may— |
| (i) |
under the hand of the chairperson, summon any person who in the opinion of the tribunal may be able to give material information concerning the subject matter of the investigation or who is believed by the tribunal to have in his or her possession or custody or under his or her control any book, document, record or thing which has any bearing on the subject matter of the investigation, to appear before it at a time and place specified in the summons, to be questioned or to produce that book, document, record or thing, and may retain for inspection any book, document, record or thing so produced; and |
| (ii) |
through the chairperson administer an oath to, or accept an affirmation from, any person summoned under subparagraph (i) and question that person and require the person to produce any book, document, record or thing in his or her possession or custody or under his or her control. |
| (b) |
A summons referred to in paragraph (a) shall be served in the same manner as a summons for the attendance of a witness at a civil trial in a magistrate's court. |
| (c) |
In connection with the questioning of any person summoned under this section or the production by such person of any book, document, record or thing, the law relating to privilege as applicable to a witness summoned to give evidence or to produce a book, document, record or thing in a civil trial before a court of law shall apply. |
| (i) |
person summoned in terms of this section or who has given evidence before a tribunal shall be entitled to the same witness fees as if he or she had been summoned to attend or had given evidence at a civil trial in a magistrate's court held the place where the investigation is held. |
| (ii) |
Any fees which may become payable in terms of subparagraph (i) shall be paid by the fund. |
| (10) |
The tribunal shall keep, whether in writing or by mechanical or electronic means, a permanent record of the proceedings relating to the determination of a matter before it, including the apportionment of actuarial surplus and any evidence given: Provided that such record shall be passed to the fund and made available to the registrar on request, once the tribunal has completed its determination. |
[Section 15K(10) amended by section 28(c) of Act No. 45 of 2013]
| (11) |
The tribunal must submit its determination to the registrar and to the fund. |
[Section 15K(11) amended by section 28(d) of Act No. 45 of 2013]
| a) |
Any reasonable costs arising from the work or the performance of the functions of the tribunal, including periodical allowances or compensation for personal expenses of the members of the tribunal, shall be recovered from the fund. |
| b) |
Despite the provisions of paragraph (a), the costs must be recovered from the actuarial surplus if the tribunal determines an apportionment of actuarial surplus. |
[Section 15K(12) amended by section 28(d) of Act No. 45 of 2013]
| (13) |
Any member of the public may obtain a copy of the record from the registrar on payment of a fee determined by the registrar. |
| (14) |
The determination of the tribunal shall be binding on the stake-holders. |
| (15) |
The registrar must accept a determination in relation to the apportionment of actuarial surplus as satisfying the requirements of section 15B and forward a certificate to the fund to the effect that section 15B has been complied with, unless the registrar is of the opinion that the tribunal failed to exercise its discretion properly and in good faith. |
[Section 15K(15) amended by section 28(e) of Act No. 45 of 2013]
Protection of Businesses Act, 1978
