PENSION FUNDS ACT 24 OF = 1956

(English text signed by the Governor-General)

[Assented To: 28 April 1956]

[Commencement Date: 1 January = 1958]

as amended by:

Finance Act 81 of 1957

Finance Act 80 of 1959

Inspection of Financial Institutions Act 68 of = 1962

Second Finance Act 58 of 1966

Financial Institutions Amendment Act 65 of 1968

Financial Institutions Amendment Act 80 of 1969

Financial Institutions Amendment Act 23 of 1970

Financial Institutions Amendment Act 91 of 1972

Financial Institutions Amendment Act 101 of 1976

Financial Institutions Amendment Act 94 of 1977

Financial Institutions Amendment Act 80 of 1978

Financial Institutions Amendment Act 103 of 1979

Financial Institutions Amendment Act 99 of 1980

Financial Institutions Amendment Act 82 of 1982

Corporation for Public Deposits Act 46 of 1984

Financial Institutions Amendment Act 86 of 1984

Financial Institutions Amendment Act 50 of 1986

Financial Institutions Amendment Act 51 of 1988

Legal Succession to the South African Transport Services = Act 9 of=20 1989

Financial Institutions Amendment Act 53 of 1989

Financial Institutions Second Amendment Act 54 of = 1989

Financial Institutions Amendment Act 64 of 1990

Financial Services Board Act 97 of 1990

Financial Institutions Amendment Act 54 of 1991

Financial Institutions Second Amendment Act 119 of = 1991

Financial Services Board Amendment Act 41 of = 1992

Financial Institutions Amendment Act 83 of 1992

Financial Institutions Amendment Act 7 of 1993

Financial Institutions Second Amendment Act 104 of = 1993

Labour Relations Act 66 of 1995

Pension Funds Amendment Act 22 of 1996

Abolition of Restrictions on the Jurisdiction of Courts Act = 88 of=20 1996

Judicial Matters Amendment Act 104 of 1996

Pension Funds Amendment Act 94 of 1997

Long-Term Insurance Act 52 of 1998

Maintenance Act 99 of 1998

Pension Funds Second Amendment Act 39 of 2001

Pension Funds Amendment Act 65 of 2001

Pension Funds Amendment Act 11 of 2007

[with effect from 13 September=20 2007]

Revenue Laws = Amendment Act 35=20 of 2007

ACT

To provide for the = registration,=20 incorporation, regulation and dissolution of pension funds and for = matters=20 incidental thereto.

ARRANGEMENT OF=20 SECTIONS

CHAPTER=20 I

ADMINISTRATION AND APPLICATION OF ACT AND INTERPRETATION OF = TERMS

1. =20 Definitions

2. Application = of=20 Act

3. = Registrar=20 and Deputy Registrar of Pension Funds

3A. = =85=85=85.

3B. Pension Funds = Advisory=20 Committee

CHAPTER=20 II

REGISTRATION AND INCORPORATION

4. Registration = of pension=20 funds

4A. Registration = of pension=20 funds to which State contributes financially

4B. Effect of = registration of=20 pension fund referred to in section 4A

4C. Transfer to pension = fund=20 referred to in section 4A of its assets held by another

5. = Effect of=20 registration of pension fund

6. Allocation of = assets=20 and liabilities between pension fund organization and other associated=20 business

CHAPTER=20 III

MANNER OF ADMINISTRATION AND POWERS OF REGISTERED=20 FUNDS

7. Registered=20 office

7A. Board of = fund

7B. = Exemptions

7C. Object of = board

7D. Duties of = board

7E. Application = of certain=20 sections

8. = Principal=20 officer =20

9. Appointment = of=20 auditor =

9A. Appointment = of a=20 valuator =

10. Business = which may be=20 carried on =20

11. = Rules

12. Amendment of=20 rules =

13. Binding force = of=20 rules =

13A. Payment of contributions and = certain=20 benefits to pension funds =20

13B. Restrictions = on=20 administration of pension funds =20

14. Amalgamations = and=20 transfers

14A. Minimum benefits

14B. Determination = of=20 member=92s individual account, minimum individual reserve and minimum = pension=20 increase

CHAPTER=20 IV

DOCUMENTS TO BE DEPOSITED WITH = REGISTRAR

15. = Accounts

15A. Rights to use of actuarial=20 surplus

15B. Apportionment = of=20 existing surplus

15C. Apportionment = of future=20 surplus

15D. Utilisation = of surplus=20 for benefit of members

15E. Utilisation = of surplus=20 for benefit of employer

15F. Existing employer reserve=20 accounts

15G. Right to share in surplus = accounts on=20 exit

15H. Use of contents of any surplus = accounts=20 to fund deficits

15I. Application = of surplus=20 accounts on liquidation of fund

15J. Use of employer surplus = to prevent=20 job losses

15K. Specialist = tribunal

16. = Investigations by a=20 valuator

17. Modifications = where=20 investigations by a valuator are unnecessary

18. Fund not in a = sound=20 financial condition =

19. = Investments

20. Requirements = in regard=20 to documents to be deposited with registrar

21. Registrar may = require=20 additional particulars in case of certain applications and = returns

22. Inspection of = documents =20

23. Effect of = registrar=92s=20 certificate on documents =20

CHAPTER=20 V

ENQUIRIES BY REGISTRAR, APPLICATIONS TO COURT, CANCELLATION = OR=20 SUSPENSION OF REGISTRATION AND DISSOLUTION OF = FUNDS

24. = Enquiries

25. Inspections = and=20 investigations

26. Registrar may = intervene=20 in management of fund =20

27. Cancellation = or=20 suspension of registration =20

28. Voluntary = dissolution=20 of fund =

28A. Remuneration = of=20 liquidator

29. Winding-up by = the=20 court

30. Special = provisions=20 relating to liquidation of funds =20

CHAPTER=20 VA

CONSIDERATION AND ADJUDICATION OF=20 COMPLAINTS

30A. Submission = and=20 consideration of complaints =20

30B. Establishment = of Office=20 of Pension Funds Adjudicator=20

30C. Appointment = of=20 Adjudicator =

30D. Main object of = Adjudicator

30E. Disposal of complaints

30F. Opportunity = to=20 comment

30G. Parties to complaint

30H. Jurisdiction = and=20 prescription

30I. Time limit for lodging of = complaints =

30J. Procedure for = conducting investigation =

30K. Legal representation

30L. Record of proceedings

30M. Statement by=20 Adjudicator regarding determination

30N. Interest on amount = awarded

30O. = Enforceability of=20 determination =20

30P. Access to court

30Q. Powers of Adjudicator

30R. Funds of Adjudicator

30S. Remuneration = and terms=20 and conditions of employment of Adjudicator = and=20 employees

30T. = Accountability

30U. Report of Adjudicator

30V. Offences and penalties

30W. Limitation of = liability =20

30X. = Liquidation

30Y. Adjudicator=20 proceedings

CHAPTER=20 VI

GENERAL AND MISCELLANEOUS

31. Carrying on = business of=20 unregistered pension fund organization and use of designation =93pension = fund=94

32. Registrar may = require=20 unregistered funds to furnish information

32A. Certain practices or methods of = conducting business prohibited

33. Registrar may = extend=20 certain periods

33A. =20 Directives

34. Annual report = by=20 registrar

35. Right to = obtain copies=20 of or to inspect certain documents

36. = Regulations

37. Power of = registrar to=20 impose administrative penalty

37A. Pension benefits not reducible, = transferable or executable =20

37B. Disposition = of pension=20 benefits upon insolvency =20

37C. Disposition = of pension=20 benefits upon death of member =

37D. Fund may make certain = deductions from=20 pension benefits =20

38. Exemption = from Act 57=20 of 1988

39. = =85=85=85.

40. Act in = certain=20 respects, and certain rules, binding on State

40A. Delegation = and=20 assignment

40B. =20 Retrospectivity

40C. Scrutiny of = Regulations

41. Short title = and=20 Commencement date =

CHAPTER = I

ADMINISTRATION AND APPLICATION OF ACT AND INTERPRETATION OF = TERMS

1. =20 Definitions

(1) In this Act, = unless the=20 context indicates otherwise -

=93actuarial surplus=94, in relation to a fund which = is=20 -

(a) subject to = actuarial=20 valuation, means the difference between -

(i) the value = that the=20 valuator has placed on the assets of the fund less any credit balances = in the=20 member and employer surplus accounts; and

(ii) the value = that the=20 valuator has placed on the liabilities of the fund in respect of = pensionable=20 service accrued by members prior to the valuation date together with the = value=20 of the amounts standing to the credit of those contingency reserve = accounts=20 which are established or which the board deems prudent to establish on = the=20 advice of the valuator;

(b) exempt from = actuarial=20 valuation, means the difference between -

(i) the fair = value of the=20 assets of the fund less any credit balances in the member and employer = surplus=20 accounts; and

(ii) the sum of = the values=20 of the amounts standing to the credit of all the accounts held for = individual=20 members, whether contributory or paid-up, plus the value of any other=20 liabilities plus the amounts standing to the credit of any investment = reserve=20 account set up to facilitate the smoothing of fund return credited to = member=20 accounts and such contingency reserve accounts which are established or = which=20 the board deems prudent to establish:

Provided that, for=20 the purpose of quantifying the actuarial surplus in terms of section=20 15B, the surplus utilised improperly by the employer in terms of section=20 15B(6) shall be added to the difference calculated in paragraph (a) = or (b),=20 as the case may be;

[Definition of =93actuarial = surplus=94 inserted=20 by s. 1 of Act 39/2001 and substituted by s. 1 of Act = 11/2007]

=93actuary=94 means any = Fellow of the=20 Institute of Actuaries of England or of the Faculty of Actuaries in = Scotland or=20 of the Society of Actuaries of America or of any other institute, = faculty,=20 society or chapter of actuaries approved by the Minister;

[Definition of =93actuary=94 = substituted by s.=20 21 of Act 104/93]

=93Adjudicator=94 means the Pension Funds = Adjudicator or Deputy=20 Pension Funds Adjudicator and any acting Pension Funds Adjudicator = appointed=20 under section=20 30C(1);

[Definition of =93Adjudicator=94 = inserted by s.=20 1 of Act 22/96 and substituted by s. 1 of Act 11/2007]

=93administrative penalty=94, in relation to a = pension fund, an=20 administrator or other third party, means the financial penalty that may = be=20 imposed by the registrar for the failure by a pension fund, = administrator or=20 third party to comply with any provision of this Act;

[Definition of =93administrative = penalty=94=20 inserted by s. 1 of Act 11/2007]

=93administrator=94 means a = person approved=20 by the registrar in terms of section=20 13B(1);

[Definition of = =93administrator=94 inserted by=20 s. 1 of Act 11/2007]

=93advisory=20 committee=94 means the Pension Funds = Advisory=20 Committee established by section=20 3B;

[Definition of =93advisory = committee=94 inserted=20 by s. 1 of Act 11/2007]

=93audit-exempt=20 fund=94 means a fund which has been = exempted by the=20 registrar in terms of section=20 2(5)(a) from being required to be subject to audit;

[Definition of =93audit-exempt = fund=94 inserted=20 by s. 1 of Act 11/2007]

=93beneficiary=94 means a = nominee of a member=20 or a dependant who is entitled to a benefit, as provided for in the = rules of the=20 relevant fund;

[Definition of =93beneficiary=94 = inserted by s.=20 1 of Act 11/2007]

=93benefit=94, in relation to = a fund, means=20 any amount payable to a member or beneficiary in terms of the rules of = that=20 fund;

[Definition of =93benefit=94 = inserted by s. 1 of=20 Act 11/2007]

=93board=94 means the board = of a fund=20 contemplated in section=20 7A of this Act;

[Definition of =93board=94 = inserted by s. 1 of=20 Act 22/96]

=93board member=94 means any = member of a=20 board;

[Definition of =93board = member=94 inserted by s.=20 1 of Act 11/2007]

=93commencement=20 date=94 means the date of commencement of = the Pension=20 Funds Second Amendment Act, 2001;

[Definition of =93commencement = date=94 inserted=20 by s. 1 of Act 39/2001]

=93complainant=94 means = -

(a) any person = who is, or=20 who claims to be -

(i) a member or = former=20 member of a fund;

(ii) a beneficiary = or former=20 beneficiary of a fund;

(iii) an employer = who=20 participates in a fund;

(b) any group of = persons=20 referred to in paragraph (a) (i), (ii) or (iii);

(d) any person = who has an=20 interest in a complaint;

[Definition of =93complainant=94 = inserted by s.=20 1 of Act 22/96]

=93complaint=94 means a = complaint of a=20 complainant relating to the administration of a fund, the investment of = its=20 funds or the interpretation and application of its rules, and alleging=20 -

(a) that a = decision of the=20 fund or any person purportedly taken in terms of the rules was in excess = of the=20 powers of that fund or person, or an improper exercise of its = powers;

(b) that the = complainant=20 has sustained or may sustain prejudice in consequence of the = maladministration=20 of the fund by the fund or any person, whether by act or = omission;

(c) that a = dispute of fact=20 or law has arisen in relation to a fund between the fund or any person = and the=20 complainant; or

(d) that an = employer who=20 participates in a fund has not fulfilled its duties in terms of the = rules of the=20 fund;

but shall not include a complaint which does not relate to = a specific=20 complainant;

[Definition of =93complaint=94 = inserted by s. 1=20 of Act 22/96]

=93contingency=20 reserve account=94, in relation to a fund, = means an=20 account of the fund, which has been amended in accordance with the = requirements=20 of the registrar, or which has not been disallowed by the registrar, and = to=20 which shall be credited or debited such amounts as the board shall = determine, on=20 the advice of the valuator where the fund is not exempt from actuarial=20 valuations, in order to provide for explicit contingencies;

[Definition of =93contingency = reserve account=94=20 inserted by s. 1 of Act 39/2001 and substituted by s. 1 of Act=20 11/2007]

=93contribution holiday=94, = in relation to=20 a-

(a) defined = benefit=20 category of a fund, means payment by the employer of less than the = contribution=20 rate the valuator recommends be payable by the employer, taking into = account the=20 circumstances of the fund and ignoring any surplus or deficit; = or

[Para. (a) substituted by s. 1 = of Act=20 11/2007]

(b) defined = contribution=20 category of a fund, means payment by the employer of less than the = employer=20 contribution rate defined in the rules prior to application of any = credit=20 balance in any employer reserve account as defined in the rules or = employer=20 surplus account;

[Definition of =93contribution = holiday=94=20 inserted by s. 1 of Act 39/2001]

=93conversion=94, in relation = to a category=20 of a fund, means the change of the basis of the retirement benefit from = defined=20 benefit to defined contribution, or vice versa;

[Definition of =93conversion=94 = inserted by s. 1=20 of Act 39/2001]

=93court=94=20 means a court of the provincial or local = division of=20 the High Court of South Africa;

[Definition of =93court=94 = substituted by s. 14=20 of Act 83/92 and s. 1 of Act 11/2007]

=93deferred=20 pensioner=94 means a member who has not = yet retired=20 but has left the service of the employer concerned prior to normal = retirement=20 date, as defined in the rules, leaving in the fund the member=92s rights = to such=20 benefits as may be defined in the rules;

[Definition of = =93deferred=20 pensioner=94 inserted by s. 1 of Act 39/2001]

=93defined=20 benefit category of a fund=94 means a = category of a=20 fund other than a defined contribution category of a fund;

[Definition of =93defined = benefit category=20 of a fund=94 inserted by s. 1 of Act 39/2001]

=93defined=20 contribution category of a fund=94 means a = category of=20 members in respect of whom the benefit on retirement has a value equal = to the=20 value of -

(a) the = contributions paid=20 by the member and by the employer in terms of the rules of the fund that = determine the rates of both their contributions at a fixed = rate;

(b) less such = expenses as=20 the board determines should be deducted from the contributions = paid;

(c) plus any = amount=20 credited to the member=92s individual account upon the commencement of = the=20 member=92s membership of the fund or upon the conversion of the category = of the=20 fund to which the member belongs from a defined benefit category to a = defined=20 contribution category of a fund or upon the amalgamation of his or her = fund with=20 any other fund, if any, other than amounts taken into account in terms = of=20 subparagraph (d);

(d) plus any = other amounts=20 lawfully permitted, credited to or debited from the member=92s = individual account,=20 if any,

as = increased or=20 decreased by fund return: Provided that the board may elect to smooth = the fund=20 return;

[Definition of =93defined = contribution=20 category of a fund=94 inserted by s. 1 of Act 39/2001 and substituted by = s. 1 of=20 Act 11/2007]

=93dependant=94, in relation = to a member,=20 means -

(a) a person in = respect of=20 whom the member is legally liable for maintenance;

(b) a person in = respect of=20 whom the member is not legally liable for maintenance, if such person=20 -

(i) was, in the = opinion of=20 the board, upon the death of the member in fact dependent on the member = for=20 maintenance;

(ii) is the spouse = of the=20 member;

(iii) is a child of = the=20 member, including a posthumous child, an adopted child and a child born = out of=20 wedlock.

(c) a person in = respect of=20 whom the member would have become legally liable for maintenance, had = the member=20 not died;

[Definition of =93dependant=94 = inserted by s. 21=20 of Act 101/76, substituted by s. 10 of Act 80/78, amended by s. 38 of = Act 99/80,=20 substituted by s. 20 of Act 54/89, amended by ss. 1 and 6 of Act 22/96 = and=20 substituted by s. 1 of Act 11/2007]

=93employer=94, in relation = to a fund, means=20 an employer participating in the fund;

[Definition of =93employer=94 = inserted by s.=20 1 of Act 39/2001]

=93employer=20 surplus account=94, in relation to a fund, = means an=20 account of the fund to which shall be credited -

(a) amounts = allocated by=20 the board in terms of sections=20 15B, 15C=20 and 15F=20 or transferred into the fund for the credit of the account in terms of = section=20 15E(1)(e);

(b) such = contributions as=20 are specified in the rules to be credited to this account; = and

(c) fund return = on the=20 balance in the account from time to time: Provided that the board may = elect to=20 smooth the fund return, and to which shall be debited-

(d) any actuarial = surplus=20 utilised by the employer; and

(e) any actuarial = surplus=20 transferred to any other account in the fund at the request of the = employer or=20 transferred to another fund in terms of section=20 15E(1)(e);

[Definition of =93employer = surplus account=94=20 inserted by s. 1 of Act 39/2001 and substituted by s. 1 of Act=20 11/2007]

=93fair=20 value=94, in relation to an asset of a = fund, means the=20 fair value of that asset determined in accordance with South African = Statements=20 of Generally Accepted Accounting Practice;

[Definition of =93fair value=94 = inserted by s. 1=20 of Act 65/2001]

=93financial year=94, in = relation to a fund,=20 means -

(a) each period = of twelve=20 months, at the end of which the balance of its accounts is required to = be struck=20 in terms of its rules; or

(b) such other = period as=20 may on any particular occasion be determined by the registrar at the = written=20 request of the fund, on such conditions as the registrar may impose;=20 or

(c) in the case = of a fund=20 which is registered at the commencement of the Financial Institutions = Amendment=20 Act, 1977, and which notifies the registrar in writing before 1 January = 1979=20 that it intends changing the date on which its financial year ends from = 31=20 December to another date, the period extending from its last financial = year,=20 which ends on 31 December, to such other date, provided such period does = not=20 exceed eighteen months.

[Definition of =93financial = year=94 substituted=20 by s. 9 of Act 94/77]

=93fund=94 means a pension = fund organisation,=20 and =93pension fund=94 or =93registered fund=94 has the same = meaning;

[Definition of =93fund=94 = substituted by s. 1 of=20 Act 11/2007]

=93fund return=94, in = relation to=20 -

(a) the assets of = a fund,=20 means any income (received or accrued) and capital gains and losses = (realised or=20 unrealised) earned on the assets of the fund, net of expenses and tax = charges,=20 associated with the acquisition, holding or disposal of assets; = or

(b) any portion = of the=20 assets of a fund if the assets are separately identifiable, means any = income=20 (received or accrued) and capital gains and losses (realised or = unrealised)=20 earned on those assets, net of expenses and tax charges associated with = the=20 acquisition, holding or disposal of assets; or

(c) the assets of = a fund,=20 to the extent that those assets consist of long-term policies which are = =91fund=20 member policies=92 as defined in Part=20 5 of the Regulations under the Long-term Insurance Act, 1998 (Act = No. 52 of=20 1998), means the =91growth rate=92 (as defined in those Regulations) = applicable to=20 those policies, as determined in accordance with those Regulations, =

which in any such case may be = positive, negative=20 or nil;

[Definition of =93fund return=94 = inserted by s.=20 1 of Act 11/2007]

=93Gazette=94 =85=85=85.

[Definition of =93Gazette=94 deleted by s. 14 of = Act=20 83/92]

=93investment=20 reserve account=94, in relation to a fund = which has a=20 defined contribution category, means the difference between:

(a) the value of = the assets=20 held in respect of the members=92 individual accounts and for any = smoothing of=20 investment returns to be credited to such accounts, with allowances for=20 expenses; and

(b) the value of = the=20 balances in the members=92 individual accounts;

[Definition of =93investment = reserve account=94=20 inserted by s. 1 of Act 39/2001]

=93member=94 means, in = relation to=20 -

(a) a fund = referred to in=20 paragraph (a) of the definition of =93pension fund organization=94, any = member or=20 former member of the association by which such fund has been=20 established;

(b) a fund = referred to in=20 paragraph (b) of that definition, a person who belongs or belonged to a = class of=20 persons for whose benefit that fund has been established,

but does not=20 include any such member or former member or person who has received all = the=20 benefits which may be due to him from the fund and whose membership has=20 thereafter been terminated in accordance with the rules of the = fund;

[Definition of =93member=94 = substituted by=20 s. 21 of Act 101/76]

=93member=92s=20 individual account=94, in relation to an = individual=20 member of a defined contribution category of a fund, means the amount = determined=20 in terms of section=20 14B(1);

[Definition of =93member=92s = individual account=94=20 inserted by s. 1 of Act 39/2001]

=93member=20 surplus account=94, in relation to a fund, = means an=20 account of the fund to which shall be -

(a) credited = -

(i) amounts = allocated by=20 the board in terms of sections=20 15B and 15C=20 to be used for the benefit of members;

(ii) fund return = on the=20 balance in the account from time to time: Provided that the board may = elect to=20 smooth the fund return; and

(iii) amounts = reallocated=20 from the employer surplus account to the account in terms of section=20 15E; and

(b) debited = -

(i) the cost of = any benefit=20 improvements funded from the account; and

(ii) any expenses = which=20 would otherwise reduce benefits payable to members;

[Definition of =93member=92s = surplus account=94=20 inserted by s. 1 of Act 39/2001 and substituted by s. 1 of Act=20 11/2007]

=93minimum individual reserve=94 -

(a) in relation = to a member=20 of a defined benefit category of a fund, means the amount determined in = terms of=20 section=20 14B(2)(a);

(b) in relation = to a member=20 of a defined contribution category of a fund, means the amount = determined in=20 terms of section=20 14B(2)(b); and

(c) in relation = to a=20 pensioner or a deferred pensioner, means the amount determined in terms = of section=20 14B(6);

[Definition of =93minimum = individual reserve=94=20 inserted by s. 1 of Act 39/2001 and substituted by s. 1 of Act=20 11/2007]

=93minimum=20 pension increase=94 means the amount = determined in=20 terms of section=20 14B(4);

[Definition of =93minimum = pension increase=94=20 inserted by s. 1 of Act 39/2001]

=93Minister=94 means the = Minister of=20 Finance;

=93non-member=20 spouse=94, in relation to a member of a = fund, means a=20 person who is no longer the spouse of that member due to the dissolution = or=20 confirmation of the dissolution of the relationship by court order and = to whom=20 the court ordering or confirming the dissolution of the relationship has = granted=20 a share of the member=92s pension interest in the fund;

[Definition of =93non-member = spouse=94 inserted=20 by s. 1 of Act 11/2007]

=93officer=94, in relation to = a fund, means=20 any member of a board, any manager, principal officer, treasurer, clerk = or=20 employee of the fund, but does not include an auditor appointed under section=20 9 or a valuator appointed under section=20 9A;

[Definition of =93officer=94 = substituted by s. 1=20 of Act 22/96]

=93pensioner=94, in relation = to a fund, means=20 a person who is in receipt of a pension paid from the fund;

[Definition of =93pensioner=94 = inserted by s. 1=20 of Act 39/2001]

=93pension fund=94 means a = pension fund=20 organization;

=93pension fund organization=94 means=20 -

(a) any = association of=20 persons established with the object of providing annuities or lump sum = payments=20 for members or former members of such association upon their reaching = retirement=20 dates, or for the dependants of such members or former members upon the = death of=20 such members or former members; or

(b) any business = carried on=20 under a scheme or arrangement established with the object of providing = annuities=20 or lump sum payments for persons who belong or belonged to the class of = persons=20 for whose benefit that scheme or arrangement has been established, when = they=20 reach their retirement dates or for dependants of such persons upon the = death of=20 those persons,

and includes any=20 such association or business which in addition to carrying on business = in=20 connection with any of the objects specified in paragraph (a) or (b) = also=20 carries on business in connection with any of the objects for which a = friendly=20 society may be established, as specified in section=20 2 of the Friendly Societies Act, 1956, or which is or may become = liable for=20 the payment of any benefits provided for in its rules, whether or not it = continues to admit, or to collect contributions from or on behalf of,=20 members;

[Definition of =93pension fund = organization=94=20 substituted by s. 21 of Act 101/76]

=93person=94 = =85=85=85.

[Definition of =93person=94 = deleted by s. 1 of=20 Act 22/96]

=93Policy=20 Board=94 =85=85=85.

[Definition of =93Policy = Board=94 inserted by s.=20 1 of Act 22/96 and deleted by s. 1 of Act 11/2007]

=93prescribed=92 means = prescribed by the=20 registrar by notice in the Gazette;

[Definition of =93prescribed=94 = substituted by=20 s. 1 of Act 11/2007]

=93prescribed by regulation=94 means=20 prescribed by the Minister by regulation;

[Definition of =93prescribed by = regulation=94=20 inserted by s. 1 of Act 11/2007]

=93principal=20 employer=94, in relation to a fund, means = the employer=20 defined as the principal employer in the rules;

[Definition of =93principal = employer=94 inserted=20 by s. 1 of Act 39/2001]

=93principal officer=94 means = the officer=20 referred to in section=20 eight;

=93registered=94, in relation = to a fund,=20 means registered or provisionally registered under section=20 four, and =93registration=94 has a corresponding = meaning;

=93registered office=94 means = the registered=20 office referred to in section=20 seven;

=93registrar=94 means the = Registrar or the=20 Deputy Registrar of Pension Funds mentioned in section=20 3;

[Definition of =93registrar=94 = substituted by s.=20 21 of Act 101/76 and by s. 29 of Act 97/90]

=93regulation=94 means a = regulation made and=20 in force under this Act;

=93reserve=20 account=94, in relation to a fund, means a = contingency=20 or investment reserve account, as the case may be;

[Definition of =93reserve = account=94 inserted by=20 s. 1 of Act 39/2001]

=93retirement=20 annuity fund=94 means a retirement annuity = fund as=20 defined in section=20 1 of the Income Tax Act, 1962 (Act No. 58 of 1962);

[Definition of =93retirement = annuity fund=94=20 inserted by s. 1 of Act 11/2007]

=93retirement=20 date=94 means the date on which a member = becomes=20 entitled in terms of the rules of a fund to the grant of an annuity or = the=20 receipt of a lump sum payment on account of age, ill-health or = retrenchment of=20 staff;

[Definition of =93retirement = date=94 inserted by=20 s. 21 of Act 101/76]

=93retrenchment=94, in = relation to a member,=20 means dismissal from employment based on the operational requirements of = the=20 relevant employer;

[Definition of = =93retrenchment=94 inserted by s.=20 1 of Act 39/2001]

=93rules=94 means the rules = of a fund, and=20 includes -

(a) the act, = charter, deed=20 of settlement, memorandum of association, or other document by which the = fund is=20 constituted;

(b) the articles = of=20 association or other rules for the conduct of the business of the fund;=20 and

(c) the = provisions relating=20 to any rights, obligations or benefits which may be granted or imposed = by and=20 the contributions which may become payable to the fund, or provisions in = accordance with which the rights, obligations and benefits will be = calculated or=20 determined;

[Definition of =93rules=94 = substituted by s. 1=20 of Act 11/2007]

=93spouse=94 means a person = who is the=20 permanent life partner or spouse or civil union partner of a member in=20 accordance with the = Marriage=20 Act, 1961 (Act No, 68 of 1961), the Recognition=20 of Customary Marriages Act, 1998 (Act No. 68 of 1997), or the Civil=20 Union Act, 2006 (Act No. 17 of 2006), or the tenets of a=20 religion;

[Definition of =93spouse=94 = inserted by s. 1 of=20 Act 11/2007]

=93stakeholder=94, in respect = of a fund,=20 means a current member, including a pensioner and a deferred pensioner, = a former=20 member and an employer participating in the fund;

[Definition of = =93stakeholder=94 inserted by=20 s. 1 of Act 39/2001]

=93statutory=20 actuarial valuation=94, in relation to a = fund, means=20 an investigation by a valuator contemplated in section=20 16;

[Definition of =93statutory = actuarial=20 valuation=94 inserted by s. 1 of Act 39/2001]

=93surplus=20 apportionment date=94 in relation to a = fund, means the=20 first statutory actuarial valuation date following the commencement=20 date;

[Definition of =93surplus = apportionment date=94=20 inserted by s. 1 of Act 39/2001 and substituted by s. 1 of Act=20 11/2007]

=93Territory=94 = =85=85=85.

[Definition of =93Territory=94 = deleted by s.=20 14 of Act 83/92]

=93this Act=94 includes any=20 regulation;

[Definition of =93this Act=94 = inserted by s. 21=20 of Act 104/93]

=93Union=94 = =85=85=85.

[Definition of =93Union=94 = deleted by s.=20 14 of Act 83/92]

=93valuation=20 exempt=94, in relation to a fund, means a = fund which=20 has been exempted by the registrar under section=20 2(5)(a) from the requirement to submit a report on its statutory = actuarial=20 valuation.

[Definition of =93valuation = exempt=94 inserted=20 by s. 1 of Act 11/2007]

=93valuator=94 means an = actuary or any other=20 person who, in the opinion of the registrar, has sufficient actuarial = knowledge=20 to perform the duties required of a valuator in terms of this = Act.

(2) For the = purpose of the=20 application of the provisions of this Act in relation to an organization = which=20 is a pension fund organization in terms of paragraph (b) of the = definition of=20 =93pension fund organization=94 in subsection (1), any reference in this = Act to a=20 fund shall be construed as a reference to that fund or to the board of = that=20 fund, as the circumstances may require.

[Sub-s. (2) substituted by s. 1 = of Act=20 22/96]

2. Application = of=20 Act

(1) Subject to section=20 4A and any other law in terms of which a fund is established, the = provisions=20 of this Act apply to any pension fund, including a pension fund = established or=20 continued in terms of a collective agreement concluded in a council in = terms of=20 the Labour=20 Relations Act, 1995 (Act No. 66 of 1995), and registered in terms of = section=20 4.

(2) (a) A pension = fund=20 established or continued in terms of a collective agreement

contemplated in subsection (1) and not yet registered in = terms of section=20 4, must register in terms of this Act before or on 1 January=20 2008.

(b) Despite any = other=20 provision of this Act, the first statutory actuarial valuation of a fund = registered in accordance with paragraph (a) must be undertaken at the = end of the=20 first financial year following registration or such other date approved = by the=20 registrar.

(3) A pension = fund=20 contemplated in subsection (2) must, pending registration in terms of = this Act,=20 furnish the registrar with such statistical information as may be = requested by=20 the registrar.

(4) (a) The = provisions of this=20 Act, other than section=20 three and subsections (1) and (2) of

section=20 four, shall not apply in relation to a pension fund if the head = office of=20 the association which carries on the business of that fund, or, as the = case may=20 be, of every employer who is a party to such fund, is outside the = Republic, if=20 -

(i) the registrar = is=20 satisfied that the rules of the fund applicable to members resident in = the=20 Republic are not less favourable than those applicable to members = resident=20 outside the Republic, taking into consideration differences in the = conditions of=20 service;

(ii) the registrar = is=20 satisfied that adequate arrangements exist for ensuring the financial = soundness=20 of the fund; and

(iii) the fund = furnishes such=20 security as the registrar may from time to time require for the payment = of any=20 benefits which may become payable to members resident in the Republic = who are=20 South African citizens, or otherwise satisfies the registrar that it = will be=20 able to pay such benefits.

(b) The registrar = may from=20 time to time require any person carrying on the business in the Republic = of a=20 pension fund referred to in paragraph (a), to submit to the registrar = such=20 returns and information in connection with that business as the = registrar may=20 specify, and if at any time the registrar is no longer satisfied as = regards any=20 of the matters specified in paragraph (a) he may advise the person = accordingly=20 by notice transmitted to him by registered post, and thereupon the = provisions of=20 this Act shall apply in relation to such fund.

(5) (a) The registrar = may in=20 his discretion and subject to such conditions as may be

prescribed by regulation exempt in writing any pension fund = from the=20 provisions of section=20 5(2), 9=20 or 9A,=20 as well as from any other provision of this Act which, in his opinion, = is=20 connected with any such exemption.

(aA) (i) The = provisions of sections=20 37A, 37B=20 and 37C=20 shall as from the

commencement of the Financial Institutions Amendment Act, = 1977, apply=20 also with reference to any registered fund to which those provisions did = not=20 apply immediately before the said commencement.

(ii) Any provision = inserted=20 in this Act by, or after the commencement of, the Financial Institutions = Amendment Act, 1977, shall apply with reference to all registered funds, = including any fund previously exempted in terms of this subsection, = except in so=20 far as any exemption may have been granted from any such provision in = terms of=20 this subsection.

(b) The registrar = may at=20 any time by notice in writing to the fund withdraw, wholly or in part = and on any=20 ground which he deems sufficient, any exemption granted under paragraph=20 (a).

[S. 2 amended by s. 10 of Act = 94/77, s. 13=20 of Act 103/79, s. 36 of Act 9/89, s. 15 of Act 83/92, ss. 22 and 30 of = Act=20 104/93 and s. 211 of Act 66/95 and substituted by s. 2 of Act=20 11/2007]

3. Registrar and = Deputy=20 Registrar of Pension Funds

The executive=20 officer and a deputy executive officer mentioned in section=20 1 of the Financial Services Board Act, 1990 (Act 97/90), shall also = be the=20 Registrar and the Deputy Registrar of Pension Funds, = respectively.

[S. 3 amended by s. 22 of Act = 101/76 and=20 substituted by s. 29 of Act 97/90 and s. 9 of Act 41/92]

3A. =85=85=85.

[S. 3A inserted by s. 4 of Act = 51/88 and=20 repealed by s. 29 of Act 97/90]

3B. Pension Funds = Advisory=20 Committee

(1) There is = hereby=20 established an advisory committee to be known as the Pension Funds = Advisory=20 Committee (in this Act referred to as the advisory = committee).

(2) (a) The advisory = committee=20 consists of the registrar as chairman and such other

members -

(i) as the = Minister may=20 from time to time designate;

(ii) who in the = opinion of=20 the Minister have special knowledge regarding matters relating to = pension=20 funds;

(iii) who represent = associations and organizations which in the opinion of the Minister have = an=20 interest in matters relating to pension funds.

(b) A member of = the=20 advisory committee shall hold office for such period as the Minister may = determine and shall be eligible for reappointment upon the expiration of = his=20 period of office.

(c) The Minister = may at any=20 time terminate the membership of any member if in the opinion of the = Minister a=20 sufficient reason exists therefor.

(3) The advisory = committee=20 may from time to time conduct an investigation and advise or make=20 recommendations to the registrar, or make recommendations to the = Minister,=20 regarding any matter relating to pension funds, and shall advise the = Minister on=20 any such matter referred to the advisory committee by the = Minister.

(4) For the = purposes of any=20 investigation by the advisory committee the Commissions=20 Act, 1947 (Act No. 8 of 1947), shall apply to the advisory committee = and=20 witnesses and their evidence as if the advisory committee were a = commission to=20 which the said Act applied and the chairman of the advisory committee = were the=20 secretary of such a commission.

(5) The registrar = may=20 submit to the advisory committee any information which is in his = possession or=20 which he may obtain and which is relevant to any matter which is being=20 investigated or considered by the advisory committee.

(6) (a) The first = meeting of=20 the advisory committee shall be held at a time and place

determined by the chairman, and thereafter the advisory = committee=20 shall meet at a time and place determined by the advisory = committee.

(b) The chairman = may at any=20 time convene an extraordinary meeting of the advisory committee to be = held at a=20 time and place determined by him.

(d) The quorum = for a=20 meeting of the advisory committee shall be a majority of its = members.

(e) The decision = of a=20 majority of the members of the advisory committee present at any meeting = thereof=20 shall constitute the decision of the advisory committee, and in the case = of an=20 equality of votes, the chairman shall have a casting vote in addition to = his=20 deliberative vote.

(7) (a) The advisory = committee=20 may nominate one or more subcommittees, which may,

subject to the instructions of the advisory committee, = perform those=20 functions of the advisory committee that the advisory committee may=20 determine.

(b) Such a = subcommittee=20 shall consist of so many members of the advisory committee or so many = other=20 persons as the advisory committee may deem necessary, and the advisory = committee=20 may at any time dissolve or reconstitute such a subcommittee.

(c) The advisory = committee=20 shall designate one of the members of the subcommittee as chairman = thereof, and=20 if any such chairman is absent from any meeting of the subcommittee, the = members=20 present shall from among themselves elect a person to preside at such=20 meeting.

(d) The advisory = committee=20 may make rules regarding the manner in which meetings of any = subcommittee shall=20 be convened, the procedure at, the functions of, and the quorums for, = such=20 meetings and the manner in which minutes of such meetings shall be=20 kept.

(8) The advisory = committee=20 may call to its assistance such person or persons as it may deem = necessary to=20 assist it, or to investigate matters relating to pension = funds.

(9) The = administrative work=20 incidental to the performance of the functions of the advisory committee = and its=20 subcommittees shall be performed by officers or employees in the office = of the=20 registrar designated for that purpose by the registrar.

[S. 3B inserted by s. 2 of Act=20 54/91]

CHAPTER = II

REGISTRATION AND INCORPORATION

4. Registration = of pension=20 funds

(1) Every pension = fund=20 shall apply to the registrar for registration under this Act.

(2) An = application under=20 subsection (1) shall be accompanied by the particulars and the fee = prescribed by=20 regulation.

[Subs. (2) amended by s. 14 of = Act 86/84 and=20 substituted by s. 16 of Act 83/92]

(3) The registrar = shall, if=20 the fund has complied with such requirements as he may have prescribed = and he is=20 satisfied that the registration of the fund is desirable in the public = interest,=20 register the fund provisionally and forward to the applicant a = certificate of=20 provisional registration.

[Subs. (3) substituted by s. 11 = of Act=20 65/68]

(4) If after = considering=20 any such application the registrar is satisfied that the fund complies = with the=20 conditions prescribed by regulation, he shall register such fund and = send to the=20 applicant a certificate of registration as well as a copy of the rules = of the=20 fund bearing an endorsement of the date of registration.

[Subs. (4) substituted by s. 16 = of Act=20 83/92]

(5) If after = considering=20 any such application, the registrar is not satisfied as regards all the = matters=20 in respect of which he is in terms of subsection (4) required to be = satisfied,=20 he shall in writing indicate to the applicant the requirements to be = complied=20 with in order that he may be so satisfied.

(6) Subject to = the=20 provisions of subsection (7) the provisional registration of a fund = under=20 subsection (3) shall be valid for a period of five years, but may in the = discretion of the registrar and subject to such conditions and = limitations as he=20 may consider desirable, be renewed from time to time for periods not = exceeding=20 twelve months at a time and not exceeding five years in the=20 aggregate.

[Subs. (6) substituted by s. 11 = of Act=20 65/68]

(7) Whenever a = fund which=20 is provisionally registered under this section has complied with all the = requirements specified in subsection (4), the registrar shall register = the fund=20 and transmit to it a certificate of registration as well as a copy of = its rules=20 with the date of registration duly endorsed thereon, and thereupon the = fund=20 shall cease to be provisionally registered.

(8) No fund shall = be=20 registered or provisionally registered under this Act except as provided = in this=20 section.

4A. Registration = of pension=20 funds to which State contributes financially

(1) = Notwithstanding=20 anything to the contrary contained in any law, the Minister may, after=20 consultation with the Registrar of Pension Funds, by regulation provide = for a=20 management board for a pension fund to which the State contributes=20 financially.

(2) If a = management board=20 has been established for a pension fund as is contemplated in subsection = (1),=20 such pension fund may, with the consent of the Minister, apply in terms = of section=20 4 for registration.

(3) When an = application has=20 been made in terms of subsection (2), the provisions of this Act shall = apply to=20 the pension fund concerned, in so far as they can be applied, and as if = the=20 pension fund were a pension fund as defined in paragraph (b) of the = definition=20 of =93pension fund organization=94 in section=20 1.

(4) The State = President may=20 by proclamation in the Gazette make=20 such regulations as he may deem necessary or expedient to give effect to = the=20 provisions of subsections (1), (2) and (3), including regulations = whereby=20 -

(a) any provision = of this=20 Act or any other law is repealed or amended;

(b) the carrying = on of the=20 business of a pension fund referred to in subsection (1) is regulated = from the=20 date of the application for registration thereof until the date of=20 registration.

[S. 4A inserted by s. 2 of Act=20 119/91]

4B. Effect of = registration of=20 pension fund referred to in section 4A

(1) On the = registration of=20 a pension fund referred to in section=20 4A it shall become a juristic person.

(2) Subject to = the=20 provisions of subsections (3) and (4), the registration of a pension = fund=20 referred to in section=20 4A shall not affect the assets, rights, liabilities, obligations and = membership of such pension fund.

(3) Regulations = referred to=20 in section=20 4A (4) may also provide for the termination of the membership of = certain=20 persons of a pension fund referred to in section 4A which has been = registered=20 and for their membership of any other pension fund, and the passing of = the=20 obligations of the first-mentioned fund towards dependants and nominees = of=20 members thereof to the last-mentioned pension fund.

[S. 4B inserted by s. 2 of Act=20 119/91]

4C. Transfer to pension = fund=20 referred to in section 4A of its assets held by = another

(1) If any person = holds any=20 assets on behalf of a pension fund referred to in section=20 4A or has on behalf of any such pension fund invested any assets in = any=20 stock, debentures, securities or financial instruments, he shall, on = production=20 to him of the certificate of provisional registration or the certificate = of=20 registration in respect of such pension fund -

(a) transfer = those assets=20 into the name of such pension fund;

(b) take such = steps as may=20 be necessary to ensure that on such stock, debentures, securities or = financial=20 instruments issued in his name and in any relevant register such = endorsements=20 are made as may be necessary to show that the ownership in such stock,=20 debentures, securities or financial instruments vests in such pension = fund;=20 and

(c) if requested = thereto by=20 such pension fund, transfer to such fund the stock, debentures, = securities or=20 financial instruments vested in it.

(2) No stamp = duty,=20 registration fee or costs shall be payable in respect of any transfer or = endorsement referred to in subsection (1).

[S. 4C inserted by s. 2 of Act=20 119/91]

5. = Effect of=20 registration of pension fund

(1) Upon the = registration=20 under this Act -

(a) of a fund = which is a=20 pension fund organization in terms of paragraph (a) of the definition of = =93pension fund organization=94 in subsection (1) of section=20 one, the fund shall, under the name by which it is so registered, = and in so=20 far as its activities are concerned with any of the objects set out in = that=20 definition, become a body corporate capable of suing and being sued in = its=20 corporate name and of doing all such things as may be necessary for or=20 incidental to the exercise of its powers or the performance of its = functions in=20 terms of its rules;

(b) of a fund = which is a=20 pension fund organization in terms of paragraph (b) of the said = definition, all=20 the assets, rights, liabilities and obligations pertaining to the = business of=20 the fund shall, notwithstanding anything contained in any law or in the=20 memorandum, articles of association, constitution or rules of any body = corporate=20 or unincorporate having control of the business of the fund, be deemed = to be=20 assets, rights, liabilities and obligations of the fund to the exclusion = of any=20 other person, and no person shall have any claim on the assets or rights = or be=20 responsible for any liabilities or obligations of the fund, except in so = far as=20 the claim has arisen or the responsibility has been incurred in = connection with=20 transactions relating to the business of the fund;

(c) of any fund, = the=20 assets, rights, liabilities and obligations of the fund (including any = assets=20 held by any person in trust for the fund), as existing immediately prior = to its=20 registration, shall vest in and devolve upon the registered fund without = any=20 formal transfer or cession.

(1)bisThe officer in = charge of a=20 deeds registry in which is registered any deed or other document = relating to any=20 asset or right which in terms of paragraph (c) of subsection (1) vests = in or=20 devolves upon a registered fund shall, upon production to him by the = fund of its=20 certificate of registration or of provisional registration, as the case = may be,=20 and of the deed or other document aforesaid, without payment of transfer = duty,=20 stamp duty, registration fees or charges, make the endorsements upon = such deed=20 or document and the alterations in his registers that are necessary by = reason of=20 such vesting or devolution.

[Subs. (1)bis inserted by = s.14 of Act=20 81/57]

(2) All moneys = and assets=20 belonging to a pension fund shall be kept by that fund and every fund = shall=20 maintain such books of account and other records as may be necessary for = the=20 purpose of such fund: Provided that such money and assets may, subject = to the=20 conditions determined by the Minister by notice in the Gazette, = also be=20 kept in the name of the pension fund by one or more of the following=20 institutions or persons, namely -

(a) a stockbroker = as=20 defined in section=20 1 of the Securities Services Act, 2004 (Act No. 36 of = 2004);

(b) a long-term = insurer=20 registered in terms of the Long-term=20 Insurance Act, 1998 (Act No. 52 of 1998);

(d) a nominee = company;=20 or

(e) a person = approved by=20 the registrar, or who is a member of a category of persons approved by = the=20 registrar.

[Subs. (2) amended by s. 9 of = Act 64/90 and=20 substituted by s. 3 of Act 11/2007]

(3) For the = purposes of=20 this section, a nominee company is a company which -

(a) has as its = principal=20 object to act as representative of any person;

(b) is precluded = by its=20 memorandum of association from incurring any liabilities other than = those to=20 persons on whose behalf it holds property;

(c) has entered = into an=20 irrevocable agreement with another person in terms of which such other = person=20 has undertaken to pay all expenses of and incidental to its formation,=20 activities, management and liquidation; and

(d) has been = approved by=20 the registrar, subject to such conditions as he may impose, including = any=20 guarantee for the fulfilment of any obligation in respect of the holding = of such=20 property, the generality of the afore-going provisions not being = restricted by=20 the provisions of this paragraph.

[Subs. (3) added by s. 9 of Act=20 64/90]

(4) = Notwithstanding the=20 provisions of subsection (2), the registrar may permit money and assets = to be=20 kept in the name of a nominee company on behalf of the pension = fund.

[Subs. (4) added by s. 9 of Act=20 64/90]

6. Allocation of = assets=20 and liabilities between pension fund organization and other=20 associated = business

(1) Within twelve = months=20 after the registration under this Act of a pension fund the business = whereof is=20 or has been carried on by any undertaking as part of or in conjunction = with any=20 other business in which that undertaking is or has been engaged, the = person=20 having control of the business of that undertaking shall submit to the = registrar=20 proposals as to the apportionment of the assets, rights, liabilities and = obligations of that undertaking between the fund and such other=20 business.

(2) If the = proposals=20 mentioned in subsection (1) are not received within the period specified = in that=20 subsection the registrar shall prepare proposals for the apportionment = of the=20 assets, rights, liabilities and obligations of that undertaking between = the fund=20 and such other business in such a manner as he may with due regard to = all the=20 circumstances consider equitable.

(3) The registrar = may for=20 the purpose of preparing any proposals under subsection (2), require any = person=20 having control of the undertaking in question, to lodge with him, within = such=20 period as he may specify, any information relating to the business or = any part=20 of the business which is or has been carried on by that undertaking, = including=20 the business of such pension fund, together with such reports by a = valuator or=20 (at the discretion of the registrar) by the auditor of that undertaking, = as the=20 registrar may direct.

(4) As soon as = practicable=20 after having received any proposals under subsection (1) or after having = prepared any proposals as provided in subsection (2), the registrar = shall=20 transmit a copy thereof to the principal officer of the fund and publish = at the=20 expense of the fund in the Gazette and in at least one English = and one=20 Afrikaans newspaper circulating in the district in which the head office = of the=20 undertaking is situate, a notice -

(a) indicating = that such=20 apportionment is contemplated;

(b) stating the = place or=20 places where copies of the proposals in question will be available for=20 inspection by interested persons for a period of thirty days from a date = specified in the notice; and

(c) calling upon = interested=20 persons to submit to the registrar whatever representations they may = deem=20 necessary within the said period of thirty days.

(5) Upon the = expiration of=20 the period mentioned in paragraph (c) of subsection (4), the registrar = shall=20 proceed to consider any written representations lodged with him in = pursuance of=20 the relevant notice and any oral representations which any person who = lodged=20 such written representations or the person having control of the = business of the=20 undertaking may desire to submit to him, and shall thereafter approve of = the=20 proposals in question as drafted or with such modifications as he may = deem=20 necessary.

(6) A decision = made by the=20 registrar under subsection (5) shall be binding upon all persons = affected=20 thereby.

CHAPTER = III

MANNER OF ADMINISTRATION AND POWERS OF REGISTERED=20 FUNDS

7. Registered=20 office

(1) Every = registered fund=20 shall have a registered office in the Republic.

[Subs. (1) amended by s. 30 of = Act=20 104/93]

(2) Process in = any legal=20 proceedings against any such fund may be served by leaving it at the = registered=20 office, and in the event of such registered office having ceased to = exist,=20 service upon the registrar shall be deemed to be service upon the=20 fund.

7A. Board of=20 fund

(1) = Notwithstanding the=20 rules of a fund, every fund shall have a board consisting of at least = four board=20 members, at least 50% of whom the members of the fund shall have the = right to=20 elect.

(2) Subject to = subsection=20 (1), the constitution of a board, the election procedure of the members=20 mentioned in that subsection, the appointment and terms of office of the = members, the procedures at meetings, the voting rights of members, the = quorum=20 for a meeting, the breaking of deadlocks and the powers of the board = shall be=20 set out in the rules of the fund: Provided that if a board consists of = four=20 members or less, all the members shall constitute a quorum at a=20 meeting.

[S. 7A inserted by s. 2 of Act=20 22/96]

7B. =20 Exemptions

(1) The registrar = may on=20 the written application of a fund which shall include such information = as the=20 registrar may require -

(a) authorise a = fund to=20 have a board consisting of less than four board members if such number = is=20 impractical or unreasonably expensive: Provided that the members of the = fund=20 shall have the right to elect at least 50% of the board = members;

(b) exempt a fund = from the=20 requirement that the members of the fund elect members of the board, if = the fund=20 -

(i) has been = established=20 for the benefit of employees of different employers which are not = subsidiaries=20 of a single holding company; or

(ii) is a = retirement annuity=20 fund as defined in the Income Tax Act, 1962 (Act No. 58 of = 1962).

(2) The registrar = may=20 withdraw an exemption granted under subsection (1)(a) or (1)(b) if a = fund no=20 longer qualifies for such exemption.

[S. 7B inserted by s. 2 of Act=20 22/96]

7C. Object of=20 board

(1) The object of = a board=20 shall be to direct, control and oversee the operations of a fund in = accordance=20 with the applicable laws and the rules of the fund.

(2) In pursuing = its object=20 the board shall -

(a) take all = reasonable=20 steps to ensure that the interests of members in terms of the rules of = the fund=20 and the provisions of this Act are protected at all times, especially in = the=20 event of an amalgamation or transfer of any business contemplated in section=20 14, splitting of a fund, termination or reduction of contributions = to a fund=20 by an employer, increase of contributions of members and withdrawal of = an=20 employer who participates in a fund;

(b) act with due = care,=20 diligence and good faith;

(d) act with = impartiality=20 in respect of all members and beneficiaries.

[S. 7C inserted by s. 2 of Act=20 22/96]

7D. Duties of=20 board

The duties of a board shall be to -

(a) ensure that = proper=20 registers, books and records of the operations of the fund are kept, = inclusive=20 of proper minutes of all resolutions passed by the board;

(b) ensure that = proper=20 control systems are employed by or on behalf of the board;

(c) ensure that = adequate=20 and appropriate information is communicated to the members of the fund = informing=20 them of their rights, benefits and duties in terms of the rules of the=20 fund;

(d) take all = reasonable=20 steps to ensure that contributions are paid timeously to the fund in = accordance=20 with this Act;

(e) obtain expert = advice on=20 matters where board members may lack sufficient expertise;

(f) ensure that = the rules=20 and the operation and administration of the fund comply with this Act, = the=20 Financial Institutions (Protection of Funds) Act, 2001 (Act No. 28 of = 2001), and=20 all other applicable laws.

[Para. (f) substituted by s. 4 = of Act=20 11/2007]

[S. 7D inserted by s. 2 of Act=20 22/96]

7E. Application = of certain=20 sections

(1) Sections=20 7A, 7B,=20 7C=20 and 7D=20 shall apply to all funds registered on, or after, a date 12 months after = the=20 Commencement date of the Pension Funds Amendment Act, 1996 (Act=20 22/96).

[Sub-s. (1) substituted by s. 6 = of Act=20 104/96]

(2) Any fund = registered=20 prior to a date 12 months after the Commencement date of the said Act, = shall=20 comply with sections=20 7A, 7B,=20 7C=20 and 7D=20 by 15 December 1998.

[S. 7E inserted by s. 2 of Act=20 22/96]

8. = Principal=20 officer

(1) Every = registered fund=20 shall have a principal executive officer.

(2) The principal = officer=20 of a registered fund shall be an individual who is resident in the = Republic, and=20 if he is absent from the Republic or unable for any reason to discharge = any duty=20 imposed upon him by any provision of this Act, the fund shall, in the = manner=20 directed by its rules, appoint another person within thirty days to be = its=20 principal officer.

[Subs. (2) amended by s. 30 of = Act=20 104/93]

(3) Within thirty = days of=20 the registration of a fund under this Act, the board shall notify the = registrar=20 of the name of the principal officer of the fund.

[Subs. (3) amended by s. 6 of = Act=20 22/96]

(4) Whenever a = registered=20 fund has appointed a new principal officer, the board shall within = thirty days=20 as from such appointment give notice thereof in writing to the=20 registrar.

[Subs. (4) amended by s. 6 of = Act=20 22/96]

9. Appointment = of=20 auditor

(1) Every = registered fund=20 shall in the manner set out in its rules appoint an auditor registered = under the=20 Auditing=20 Profession Act, 2005 (Act No. 26 of 2005), who shall not be an = officer of=20 the fund, except where the accounts of such a fund in terms of the = provisions of=20 any law are to be audited by the Auditor-General.

[Subs. (1) substituted by s. 23 = of Act=20 104/93 and s. 5 of Act 11/2007]

(2) Every = registered fund=20 shall within 30 days -

(a) from the date = of=20 registration appoint an auditor; and

(b) from the date = of the=20 appointment apply to the registrar for approval of such = appointment.

[Subs. (2) substituted by s. 10 = of Act=20 64/90]

(3) The registrar = may,=20 without assigning any reason therefor, refuse to approve any appointment = of an=20 auditor or withdraw his prior approval and thereupon the auditor = concerned shall=20 vacate his office as auditor of the fund.

(4) When the = registrar has=20 refused to approve or has withdrawn his approval of the appointment of = an=20 auditor, the fund shall appoint some other person as auditor but again = subject=20 to the approval of the registrar.

(5) Where the = auditor of a=20 pension fund is a partnership, the appointment of such auditor shall not = lapse=20 by reason of a change in the composition of the partnership, as long as = not less=20 than half of the partners in the reconstituted partnership are persons = who were=20 partners as at the date when the appointment of the partnership was last = approved by the registrar.

[S. 9 substituted by s. 12 of = Act=20 65/68]

9A. Appointment = of a=20 valuator

(1) Every = registered fund=20 which in terms of section=20 16 is required to have its financial condition investigated and = reported=20 upon by a valuator, shall appoint a valuator.

(2) The = provisions of section=20 9(2), (3), (4) and (5) shall apply mutatis mutandis in = connection=20 with the appointment of a valuator of a registered fund.

[S. 9A inserted by s. 13 of Act=20 65/68]

10. Business = which may be=20 carried on

No = registered=20 fund shall carry on any business other than the business of a pension = fund:=20 Provided that the registrar may approve of a fund carrying on such other = business on such conditions and for such period as he may determine if = the=20 registrar is satisfied that this is necessary in order to safeguard an=20 investment made by the fund.

11. =20 Rules

(1) The rules of = a fund=20 which applies for registration after the date of the coming into = operation of=20 section 24 of the Financial Institutions Second Amendment Act, 1993, = shall be in=20 the prescribed format and form and shall comply with the prescribed=20 requirements.

(2) A fund which, = immediately prior to the date referred to in subsection (1), was a = registered=20 fund, shall within the prescribed period ensure that its rules are = amended so as=20 to comply with the format, form and requirements contemplated in = subsection=20 (1).

(3) (a) If all the = amendments=20 referred to in subsection (2) are effected on one occasion

within the prescribed period and the registrar is = satisfied, on=20 submission to him of a certificate signed by the principal officer of = the fund,=20 that the sole reason for the amendments is to comply with the said = format, form=20 and requirements, he may register the amendments in accordance with section=20 12(4) against payment of the prescribed fee, which shall be = calculated as if=20 only a single amendment is being effected.

(b) Any amendment = of the=20 rules of a fund effected after the date referred to in subsection (1) = shall=20 comply with the prescribed format, form and requirements contemplated in = subsection (1).

(4) Subject to = the=20 provisions of subsections (2) and (3), the provisions of this section as = they=20 existed before the substitution thereof by section 24 of the Financial=20 Institutions Second Amendment Act, 1993, shall continue to apply in = respect of=20 the rules of a fund referred to in subsection (2) until the rules of = such fund=20 comply with the format, form and requirements contemplated in subsection = (1).

[S. 11 substituted by s. 17 of = Act 83/92 and=20 s. 24 of Act 104/93]

12. Amendment of=20 rules

(1) A registered = fund may,=20 in the manner directed by its rules, alter or rescind any rule or make = any=20 additional rule, but no such alteration, rescission or addition shall be = valid=20 -

(a) if it = purports to=20 effect any right of a creditor of the fund, other than as a member or=20 shareholder thereof; or

(b) unless it has = been=20 approved by the registrar and registered as provided in subsection=20 (4).

(2) Within 60 = days from the=20 date of the passing of a resolution for the alteration or rescission of = any rule=20 or for the adoption of any additional rule, a copy of such resolution = shall be=20 transmitted by the principal officer to the registrar, together with the = particulars prescribed by regulation.

[Subs. (2) substituted by s. 18 = of Act=20 83/92]

(3) If any such = alteration,=20 rescission or addition may affect the financial condition of the fund, = the=20 principal officer shall also transmit to the registrar a certificate by = the=20 valuator or, if no valuator has been employed, a statement by the fund, = as to=20 its financial soundness, having regard to the rates of contributions by=20 employers and, if the fund is not in a sound financial condition, what=20 arrangements will be made to bring the fund in a sound financial=20 condition.

[Subs. (3) substituted by s. 18 = of Act=20 83/92]

(4) If the = registrar finds=20 that any such alteration, rescission or addition is not inconsistent = with this=20 Act, and is satisfied that it is financially sound, he shall register = the=20 alteration, rescission or addition and return a copy of the resolution = to the=20 principal officer with the date of registration endorsed thereon, and = such=20 alteration, rescission or addition, as the case may be, shall take = effect as=20 from the date determined by the fund concerned or, if no date has been = so=20 determined, as from the said date of registration.

(5) A registered = fund may=20 at any time consolidate its rules, and in such event the principal = officer shall=20 forward to the registrar a copy of such consolidated rules and if the = registrar=20 is satisfied that the consolidated rules are not substantially different = from=20 the existing rules of the fund, he shall register such consolidated = rules and=20 return a copy thereof to the principal officer with the date of = registration=20 endorsed thereon, and such consolidated rules shall thereupon take = effect from=20 the date of registration thereof.

13. Binding force = of=20 rules

Subject to the=20 provisions of this Act, the rules of a registered fund shall be binding = on the=20 fund and the members, shareholders and officers thereof, and on any = person who=20 claims under the rules or whose claim is derived from a person so=20 claiming.

13A. Payment of contributions and = certain=20 benefits to pension funds

(1) = Notwithstanding any=20 provision in the rules of a registered fund to the contrary, the = employer of any=20 member of such a fund shall pay the following to the fund in full,=20 namely-

(a) any = contribution which,=20 in terms of the rules of the fund, is to be deducted from the member=92s = remuneration; and

(b) any = contribution for=20 which the employer is liable in terms of those rules.

(2) (a) The minimum = information=20 to be furnished to the fund by every employer with

regard to payments of contributions made by the employer in = terms of=20 subsection (1), shall be as prescribed by regulation.

(b) If that = information=20 does not accompany the payment of a contribution, the information shall = be=20 transmitted to the fund concerned not later than 15 days after the end = of the=20 month in respect of which the payment was made.

(3) (a) Any = contribution to a=20 fund in terms of its rules, whether it be a contribution

contemplated in subsection (1), a contribution for the = payment of=20 which a member of the fund is responsible personally, or a contribution = to be=20 paid on a member=92s behalf-

(i) shall be = transmitted=20 directly into the fund=92s account with a bank finally registered as = such under=20 the Ban= ks=20 Act, 1990 (Act No. 94 of 1990), not later than seven days after the = end of=20 the month for which such a contribution is payable; or

(ii) shall be = forwarded=20 directly to the fund in such a manner as to have the fund receive the=20 contribution not later than seven days after the end of that month;=20 or

(iii) in the case = of a fund=20 contemplated in section=20 15(4) that has been exempted from the provisions of sections=20 5(2) and 9=20 because, in operating as a fund, its assets consist exclusively of one = or more=20 policies of insurance with an insurer carrying on long-term insurance = business=20 as contemplated in the Insurance Act, 1943, shall be forwarded to the = insurer=20 concerned in such manner as to have the insurer receive the contribution = not=20 later than seven days after the end of that month.

(b) Any = contribution=20 forwarded to and received by a fund in the circumstances contemplated in = paragraph (a)(ii), shall be deposited in the fund=92s bank account on = the first=20 business day following the day of receipt.

(4) An amendment = of the=20 rules of a fund relating to the reduction of contributions or the = suspension or=20 discontinuation of the payment of contributions shall not affect any = liability=20 to pay any contribution which became payable at any time before the date = of the=20 resolution whereby the amendment was effected, irrespective of the date = on which=20 the amendment may take effect.

(5) When a person = who, for=20 any reason except a reason contemplated in section=20 14, 28=20 or 29,=20 has ceased to be a member of a fund (in this subsection called the first = fund),=20 is in terms of the rules of another fund admitted as a member of the = other fund=20 and allowed to transfer to that other fund any benefit or any right to = any=20 benefit to which such person had become entitled in terms of the rules = of the=20 first fund, the first fund shall, within 60 days of the date of such = person=92s=20 written request to it, or, if applicable, within any longer period = determined by=20 the registrar on application by the first fund, transfer that benefit or = right=20 to the other fund in full. The transfer shall be subject to deductions = in terms=20 of section=20 37D and to the rules of the first fund.

(6) (a) For the = purpose of=20 monitoring and ensuring compliance with this section, the

principal officer of the fund or any authorized person = shall, at the=20 times and in the manner and format prescribed by regulation, submit = reports to=20 the categories of persons, to be specified in those regulations, who = have an=20 interest in such compliance.

(b) In applying = paragraph=20 (a), =91authorized person=92 means any person who has been authorized by = the=20 relevant board to perform the function contemplated in that paragraph = and of=20 whom the registrar has been advised in writing.

(7) Interest at a = rate as=20 prescribed by regulation shall be payable from the first day following = the=20 expiration of the period in respect of which such amounts were payable = on=20 -

(a) the amount of = any=20 contribution not transmitted into a fund=92s bank account before the = expiration of=20 the period prescribed therefor by subsection (3)(a)(i);

(b) the amount of = any=20 contribution not received -

(i) by a fund = before the=20 expiration of the period prescribed therefor by subsection (3)(a)(ii);=20 or

(ii) in the = circumstances=20 contemplated in subsection (3)(a)(iii), by the insurer concerned before = the=20 expiration of the period prescribed therefor by that = subsection;

(c) the value of = any=20 benefit, or right to any benefit, not transferred by the first fund to = the other=20 fund before the expiration of the period prescribed therefor by = subsection=20 (5).

[Subs. (7) amended by s. 6 of = Act=20 11/2007]

[S. 13A inserted by s. 15 of Act = 86/84,=20 amended by s. 6 of Act 22/96 and substituted by s. 1 of Act = 94/97]

13B. Restrictions = on=20 administration of pension funds

(1) No person = shall=20 administer on behalf of a pension fund the investments of such a pension = fund,=20 or the disposition of benefits provided for in the rules of the fund, = unless the=20 registrar has in a particular case or in general granted approval = thereto and=20 the person complies with such conditions as the registrar may from time = to time=20 determine in the particular case or in general.

(2) Approval in = terms of=20 subsection (1) may be limited to the performance of specified=20 functions.

(3) Application = for=20 approval in terms of subsection (1) shall be made in the manner and be=20 accompanied by the fee prescribed by regulation.

(4) If the = registrar deems=20 it desirable in the public interest the registrar may on such = conditions, to=20 such extent and in such manner as it is deemed fit, exempt any person or = category of persons from the provisions of subsections (1) and (3), and = may at=20 any time revoke or amend any such exemption in a similar = manner.

[Subs. (4) substituted by s. 7 = of Act=20 11/2007]

(5) An = administrator=20 contemplated in subsection (1) must -

(a) endeavour to = avoid=20 conflict between the interests of the administrator and the duties owed = to the=20 fund, and any conflict of interest or potential conflict of interest = must be=20 disclosed by the administrator to the board setting out full particulars = of how=20 such conflict will be managed;

(b) administer = the fund in=20 a responsible manner;

(d) employ = adequately=20 trained staff and ensure that they are properly supervised;

(e) have = well-defined=20 compliance procedures;

(f) = maintain adequate=20 financial resources to meet its commitments and to manage the risks to = which the=20 fund is exposed;

(g) furnish the = registrar=20 with such information as requested by the registrar where such request = is=20 reasonable, the purpose for the request is disclosed and reasonable = notice is=20 given to the administrator in order to meet the request.

[Subs. (5) inserted by s. 7 of = Act=20 11/2007]

(6) If the = registrar, after=20 an inspection or investigation under section 25, considers that the = interests of=20 the members of a fund or of the public so require, the registrar may=20 -

(a) direct the=20 administrator to take any steps, or to refrain from performing or = continuing to=20 perform any act, in order to terminate or remedy any irregularity or = undesirable=20 practice or state of affairs disclosed by the inspection or=20 investigation;

(b) direct the=20 administrator to withdraw from the administration of the fund, whereupon = the=20 board of the fund must in accordance with the registrar=92s directions, = but=20 subject to this Act and the rules of the fund, arrange for the = administration of=20 the fund to be taken over by another administrator or person; = or

(c) suspend or = withdraw the=20 approval granted to the administrator on such conditions and for such = period as=20 the registrar deems fit, provided that where an administrator=92s = approval is=20 suspended, the registrar may permit the administrator to continue to = provide=20 services to the funds under its administration subsequent to the date of = the=20 suspension, but it may not enter into an agreement to provide any new or = additional services to any fund while the suspension is in = force.

[Subs. (6) inserted by s. 7 of = Act=20 11/2007]

(7) The registrar = may,=20 despite taking any step he or she may take under this Act, impose an=20 administrative penalty prescribed by regulation on an administrator for = any=20 failure to comply with any conditions determined under subsection (1) or = any=20 directive issued under subsection (6).

[Subs. (7) inserted by s. 7 of = Act=20 11/2007]

(8) Before taking = any=20 action under subsection (6) or (7), the registrar must inform the = administrator=20 and the board of the fund of the proposed action and grounds therefor, = and=20 afford them a reasonable opportunity to be heard.

[Subs. (8) inserted by s. 7 of = Act=20 11/2007]

(9) If it is in = the public=20 interest, the registrar may through appropriate media make = known-

(a) the = suspension or=20 withdrawal of an approval referred to in subsection (6);

(b) any = non-compliance and=20 administrative penalty referred to in subsection (7).

[Subs. (9) inserted by s. 7 of = Act=20 11/2007]

[S. 13B inserted by s. 20 of Act = 83/92]

14. Amalgamations = and=20 transfers

(1) Subject to = subsection=20 (8), no transaction involving the amalgamation of any business carried = on by a=20 registered fund with any business carried on by any other person = (irrespective=20 of whether that other person is or is not a registered fund), or the = transfer of=20 any business from a registered fund to any other person, or the transfer = of any=20 business from any other person to a registered fund shall be of any = force or=20 effect unless -

(a) the scheme = for the=20 proposed transaction, including a copy of every actuarial or other = statement=20 taken into account for the purposes of the scheme, has been submitted to = the=20 registrar within 180 days of the effective date of the = transaction;

[Para. (a) substituted by s. 8 = of Act=20 11/2007]

(b) the registrar = has been=20 furnished with such additional particulars or such a special report by a = valuator, as he may deem necessary for the purposes of this=20 subsection;

(c) the registrar = is=20 satisfied that the scheme referred to in paragraph (a) is reasonable and = equitable and accords full recognition -

(i) to the rights = and=20 reasonable benefit expectations of the members transferring in terms of = the=20 rules of a fund where such rights and reasonable benefit expectations = relate to=20 service prior to the date of transfer;

(ii) to any = additional=20 benefits in respect of service prior to the date of transfer, the = payment of=20 which has become established practice; and

(iii) to the = payment of=20 minimum benefits referred to in section=20 14A,

and that the=20 proposed transactions would not render any fund which is a party thereto = and=20 which will continue to exist if the proposed transaction is completed, = unable to=20 meet the requirements of this Act or to remain in a sound financial = condition=20 or, in the case of a fund which is not in a sound financial condition, = to attain=20 such a condition within a period of time deemed by the registrar to be=20 satisfactory;

[Para. (c) substituted by s. 3 = of Act 54/91,=20 s. 21 of Act 83/92 and s. 2 of Act 39/2001]

(d) the registrar = has been=20 furnished with such evidence as he may require that the provisions of = the said=20 scheme and the provisions, in so far as they are applicable, of the = rules of=20 every registered fund which is a party to the transaction, have been = carried out=20 or that adequate arrangements have been made to carry out such = provisions at=20 such times as may be required by the said scheme;

(e) the registrar = has=20 forwarded a certificate to the principal officer of every such fund to = the=20 effect that all the requirements of this subsection have been=20 satisfied.

[Subs. (1) amended by s. 8 of = Act=20 11/2007]

(2) (a) Whenever a = scheme for=20 any transaction referred to in subsection (1) has come into

force in accordance with the provisions of this section, = the relevant=20 assets and liabilities of the bodies so amalgamated shall respectively = vest in=20 and become binding upon the resultant body, or as the case may be, the = relevant=20 assets and liabilities of the body transferring its assets and = liabilities or=20 any portion thereof shall respectively vest in and become binding upon = the body=20 to which they are to be transferred.

(b) Any transfer=20 contemplated in paragraph (a) must be effected within 60 days of the = date of the=20 certificate issued by the registrar in terms of paragraph (e) of = subsection=20 (1).

[Subs. (2) substituted by s. 8 = of Act=20 11/2007]

(3) The officer = in charge=20 of a deeds registry in which is registered any deed or other document = relating=20 to any asset which is transferred in accordance with the provisions of=20 subsection (2), shall, upon production to him by the person concerned of = such=20 deed or other document and of the certificate referred to in paragraph = (e) of=20 subsection (1), without payment of transfer duty, stamp duty, = registration fees=20 or charges, make the endorsements upon such deed or document and the = alterations=20 in his registers that are necessary by reason of the amalgamation or=20 transfer.

[Subs. (3) substituted by s. 15 = of Act=20 81/57]

(4) A transaction = effected=20 in terms of this section shall not deprive any creditor of a party = thereto=20 (other than in his capacity as a member or a shareholder of such party) = of any=20 right or remedy which he had immediately prior to that date against any = party to=20 the transaction or against any member or shareholder or officer of such=20 party.

(5) Any = application for=20 approval of a scheme lodged with the registrar in terms of subsection = (1)(a)=20 shall lapse if the registrar requests further information and no = satisfactory=20 response is received from either the transferor or the transferee fund, = as the=20 case may be, within a period of 180 days from the date of such=20 request.

[Subs. (5) inserted by s. 8 of = Act=20 11/2007]

(6) The registrar = may=20 withdraw or amend a certificate issued in terms of subsection (1)(e), in = circumstances where the registrar is satisfied that -

(a) the scheme or = information provided in terms of subsection (1) was so inaccurate that = he would=20 not have granted such certificate had he been aware of the actual facts; = or

(b) the = certificate=20 contains a bona fide error.

[Subs. (6) inserted by s. 8 of = Act=20 11/2007]

(7) (a) = Notwithstanding=20 anything to the contrary in the rules of a fund, a retirement

annuity fund shall not prohibit the transfer of business = that relates=20 to a member=92s interest or non-member spouse=92s interest, at the = request of such a=20 member or non-member spouse from one retirement annuity fund to=20 another.

(b) No fees or = commissions=20 of any nature, other than fees payable by the transferring member or = non-member=20 spouse personally and any fees payable to the registrar, are payable by = any=20 party to the transfer or by any agent or mandatory of such party = -

(i) in return for = the=20 facilitation, intermediation or recommendation of the transfer; = or

(ii) for financial = services=20 rendered by a financial services provider or representative after the = transfer=20 in respect of the transferred interest of the transferring member or = non-member=20 spouse which exceed the fees or commission that would have been = permissible for=20 such services had the transfer not been done.

[Subs. (7) inserted by s. 8 of = Act=20 11/2007]

(8) With effect = from the=20 commencement of the Pension Funds Amendment Act, 2007, subsection (1) = does not=20 apply where the affected members were duly informed of a proposed = transaction=20 and any objection the members may have has been resolved to the = satisfaction of=20 the board of the fund concerned, and -

(a) both = transferor and=20 transferee funds are valuation exempt; or

(b) the = transferor or=20 transferee fund is neither registered nor required to register under = this Act=20 and the other fund is valuation exempt,

and, furthermore, that -

(i) such = registered funds=20 keep proper records of all such transactions;

(ii) such = registered funds=20 comply with any further requirements as the registrar may = prescribe;

(iii) the assets = and=20 liabilities are transferred within 180 days of the effective date of = transfer;=20 and

(iv) any assets = transferred=20 must be increased or decreased with fund return from the effective date = until=20 the date of final settlement.

[Subs. (8) inserted by s. 8 of = Act=20 11/2007]

14A. Minimum=20 benefits

(1) Every = registered fund=20 shall provide the following minimum benefits:

(a) The benefit = paid to a=20 member who ceases to be member of the fund prior to retirement in = circumstances=20 other than liquidation of the fund shall not be less than the minimum = individual=20 reserve;

(b) the benefit = paid to a=20 member if the fund is liquidated in terms of section=20 28 or 29=20 shall not be less than the minimum individual reserve: Provided that, = where the=20 fair value of the assets of the fund after recovery of any debt owed by = the=20 employer in terms of section=20 30(3) is lower than the sum of the minimum individual reserves for = all=20 members who are being included in the distribution of the assets after=20 adjustment for any benefits paid previously and the cost of annuity = policies=20 which will provide equivalent pensions to all existing pensioners and = deferred=20 pensioners, the minimum individual reserve may be proportionally reduced = in the=20 ratio which the fair value of the assets bears to the total of all the = minimum=20 individual reserves adjusted for any benefits paid previously plus the = cost of=20 such annuity policies;

(c) if a category = of the=20 fund is converted from a defined benefit category to a defined = contribution=20 category, the amount to be credited to the member=92s individual account = shall not=20 be less than the minimum individual reserve: Provided that, where the = fair value=20 of the assets of the fund after recovery of any debt owed by the = employer in=20 terms of section=20 30(3) is lower than the sum of the minimum individual reserves for = all=20 members after adjustment for any benefits paid previously and the cost = of=20 annuity policies which will provide equivalent pensions to all existing=20 pensioners and deferred pensioners, the minimum individual reserve may = be=20 proportionally reduced in the ratio which the fair value of the assets = bears to=20 the total of all the minimum individual reserves adjusted for any = benefits paid=20 previously plus the cost of such annuity policies;

(d) on, or within = six=20 months from, the effective date of the first actuarial valuation = following the=20 commencement date, and at least once every three years thereafter, the = board=20 shall grant a pension increase to pensioners and deferred pensioners = which shall=20 not be less than the minimum pension increase.

[Subs. (1) substituted by s. 9 = of Act=20 11/2007]

(2) (a) In respect of = a fund=20 which is registered on or after a date three months after the

commencement date, subsection (1) shall apply on=20 registration.

(b) In respect of = a fund=20 which is registered prior to a date three months after the commencement=20 date-

(i) subsection = (1)(a) shall=20 apply from a date 12 months after the surplus apportionment date; = and

(ii) subsection = (1)(b), (c)=20 and (d) shall apply from the commencement date.

(3) If the = employer or the=20 board exercises any right that the employer or the board has in terms of = the=20 rules to liquidate the fund, or to terminate participation of a = particular=20 employer in the fund, prior to the commencement date or to change the = basis upon=20 which future benefits accrue prior to the date from which subsection = (1)(a)=20 applies to the fund, the members may not seek redress against the = employer or=20 the board in respect of any increase in value of the benefits that would = occur=20 as a result of the application of minimum individual reserves to the=20 fund.

[S. 14A inserted by s. 3 of Act=20 39/2001]

14B. Determination = of=20 member=92s individual account, minimum individual reserve and minimum = pension=20 increase

(1) The = member=92s individual=20 account in relation to an individual member of a defined contribution = category=20 of a fund shall be determined by the board in accordance with the = formula=20 -

MC+EC-X+IC+OC

where -

(a) MC represents = the=20 contributions paid by the member;

EC = represents the=20 contributions paid by the employer in respect of the member;

X = represents such=20 expenses as the board determines should be paid out of the contributions = paid by=20 and in respect of the member;

IC = represents the=20 amount credited to the member=92s individual account upon the = commencement of the=20 member=92s membership of the fund or upon the conversion of the category = of the=20 fund to which the member belongs from a defined benefit category to a = defined=20 contribution category of a fund or upon the amalgamation of his or her = fund with=20 any other fund, if any, other than amounts taken into account in terms = of OC;=20 and

OC = represents any=20 other amounts lawfully permitted, credited to or debited from the = member=92s=20 individual account, if any; and

(b) MC, EC, X, IC = and OC=20 are increased or decreased with fund return: Provided that the board may = elect=20 to smooth the fund return.

(2) In = determining the=20 minimum individual reserve of a member of a -

(a) defined = benefit=20 category of a fund, the board shall determine the greater of = -

(i) the fair = value=20 equivalent of the present value of the member=92s accrued deferred = pension:=20 Provided that -

(aa) where there = is not a=20 uniform rate of accrual over the full period of membership of the fund, = the=20 accrued deferred pension shall be calculated assuming a uniform rate of = accrual=20 as if the member had remained in service until normal retirement date as = defined=20 in the rules of the fund, but which uniform rate of accrual will not be = less=20 than the uniform rate of accrual that is calculated based on the period = of=20 service completed up to the date of calculation;

(bb) the fair = value=20 equivalent of the present value shall assume rates of increase in the = pension=20 before and after retirement, mortality rates and rates of discount as = prescribed=20 by the registrar; and

(cc) the term = =91accrued=20 deferred pensions=92 in this section shall include the portion of any = lump sum=20 benefit payable at normal retirement date which corresponds to prior = service;=20 and

(ii) an amount = equal to the=20 value of the member=92s contributions, less such expenses as the board = deems=20 appropriate to deduct from the contributions, augmented as from the date = of=20 payment of a contribution by fund return plus any amount payable in = terms of the=20 rules of the fund in excess of the member contributions increased or = decreased=20 as from the date that the member joined the fund: Provided that the = board may=20 elect to smooth the fund return; and

(b) defined = contribution=20 category of a fund, the board shall determine the value of the = member=92s=20 individual account as determined in terms of subsection (1) plus a share = of the=20 investment reserve account, the member surplus account, and such = contingency=20 reserve accounts as the board may determine should be included in terms = of section=20 15G, in the proportion that the member=92s individual account value = as at the=20 effective date of the calculation bears to the total of all members=92 = individual=20 account values as at that date or such other method of apportionment as = the=20 board deems reasonable.

(3) (a) The board = shall=20 establish and implement a policy with regard to increases to = be

granted to pensioners and deferred pensioners, which policy = must=20 -

(i) aim to award = a=20 percentage of the consumer price index, or some other measure of price = inflation=20 which is deemed suitable by the board; and

(ii) set the = frequency with=20 which increases will be considered in line with the policy: Provided = that=20 increases should be considered each year, with comparison to the minimum = pension=20 increase at least once every three years.

(b) The policy = contemplated=20 in paragraph (a) must be communicated to pensioners and deferred = pensioners when=20 it is established and whenever it is changed.

(i) pensioners on = or after=20 retirement in terms of the rules of a fund, purchased a policy from a = long-term=20 insurer registered in terms of section=20 7 of the Long-term Insurance Act, 1998 (Act No. 52 of = 1998);

(ii) pensioners on = whose=20 behalf a fund, on or after retirement in terms of the rules of the fund, = purchased a policy of insurance from a long-term insurer registered in = terms of=20 section=20 7 of the Long-term Insurance Act, 1998 (Act No. 52 of = 1998);

(iii) pensioners = elected to=20 receive a level pension, or a pension with fixed increases, or a pension = the=20 amount of which is elected by the pensioner from time to time, paid from = the=20 fund in terms of the rules of the fund.

(4) (a) In = determining the=20 minimum pension increase, the board shall increase pensions

by a factor, P, where P is equal to the greater of the = increase that=20 the board would grant in terms of the pension increase policy = established in=20 terms of subsection (3) and -

(i) the increase = in=20 paragraph (b), if the increase in paragraph (b) is less than the = increase in=20 paragraph (c); or

(ii) the increase = in=20 paragraph (c), if the increase in paragraph (b) is greater than or equal = to the=20 increase in paragraph (c):

Provided that if=20 the application of the increase factor. P, causes a fund to become = financially=20 unsound, the board may limit P to such amount as will not cause the fund = to be=20 in a financially unsound condition.

(b) The board = shall=20 determine the increase that would result from -

(i) accumulating = with fund=20 return the liabilities for pensioners at their dates of retirement in = the fund=20 or date of joining the fund if the pensioner retired from another fund = and=20 became a member of the fund as a result of an approval granted in terms = of section=20 14(1) and deferred pensioners at their dates of termination of = service,=20 including any contingent liabilities payable, in terms of the rules of a = fund,=20 on termination of those pensions or deferred pensions to persons who are = still=20 alive at the effective date of the calculation, adjusted to an = equivalent fair=20 value of assets less-

(aa) pension=20 payments;

(bb) cash amounts = paid on=20 retirement; and

(cc) those = expenses that the=20 board deems reasonable,

plus = the liability=20 in respect of any special increases that have been granted to pensioners = and=20 deferred pensioners which were funded otherwise than through fund = return:=20 Provided that, if the board is unable to grant the full minimum pension = increase=20 as at the surplus apportionment date, the board may reduce the amount = determined=20 in terms of this subparagraph at that date such that the amount equals = the=20 pensioner liability as at the surplus apportionment date after = enhancement in=20 terms of section=20 15B(5)(b), if applicable, increased to an equivalent fair value of = assets,=20 and the board may accumulate thereafter in terms of this paragraph, = using such=20 reduced amount, as if it was the balance determined in terms of this = paragraph=20 as at the surplus apportionment date prior to such reduction; = and

(ii) dividing the = amount=20 calculated in terms of subparagraph (i) by the present value of current = pensions=20 and deferred pensions after making allowance for mortality, expenses and = future=20 pension increases at the rate determined by the board, adjusted to an = equivalent=20 fair value of assets.

(c) The board = shall=20 determine the increase required to each pension to provide the pension = payable=20 in the month following retirement, nett of the commutation of any = portion of the=20 pension for cash or the deferred pension at the date of termination of = service,=20 multiplied by the change in the consumer price index from the date of = retirement=20 in the case of a pensioner, or the date of termination of service in the = case of=20 a deferred pensioner, to the effective date of the calculation of the=20 increase.

(d) Where the = board finds=20 it impractical to derive the increases in paragraphs (a), (b) and (c) = for each=20 individual pensioner or deferred pensioner, the board may use an = approximate=20 method which will preserve the broad principles behind paragraphs (a), = (b) and=20 (c).

(5) For purposes = of=20 subsection (4), where the pension has arisen because of the death of a = member=20 rather than the member=92s retirement, any reference in that subsection = to=20 =91retirement=92 shall be construed as a reference to death.

(6) In = determining the=20 minimum individual reserve of a pensioner or a deferred pensioner, the = board=20 shall determine the fair value equivalent of the present value of the = pension,=20 or the deferred pension, payable to that member after implementation of = any=20 minimum pension increase in terms of subsections (4) and (5), including = the=20 present value of any contingent pension payable to the member=92s = spouse, children=20 and other dependants.

[S. 14B inserted by s. 3 of Act = 39/2001 and=20 substituted by s. 10 of Act 11/2007]

CHAPTER = IV

DOCUMENTS TO BE DEPOSITED WITH = REGISTRAR

15. =20 Accounts

(1) Subject to = the=20 provisions of subsection (4), every registered fund shall, within six = months as=20 from the expiration of every financial year, furnish to the registrar = such=20 statements in regard to its revenue, expenditure and financial position = as may=20 be prescribed by regulation, duly audited and reported on by the auditor = of the=20 fund;

[Subs. (1) substituted by s. 22 = of Act=20 83/92]

(2) Every = registered fund=20 shall, when furnishing to the registrar the documents referred to in = subsection=20 (1), also furnish to the registrar -

(a) a copy of any = special=20 report by the auditor relating to any of the activities of the fund = during the=20 financial year to which such documents relate;

(b) a copy of any = annual=20 report that the fund may have issued to its members or shareholders in = respect=20 of the said financial year; and

(c) a copy of any = other=20 statement that the fund may have presented to its members or = shareholders in=20 respect of any of its activities during such financial year.

(3) If the = registrar is of=20 the opinion that any document furnished by a registered fund in terms of = subsection (1) does not correctly reflect the revenue and expenditure or = the=20 financial position (as the case may be) of the fund, he may reject the = said=20 document, and in that event -

(a) he shall = notify the=20 fund concerned of the reasons for such rejection; and

(b) the fund = shall be=20 deemed not to have furnished the said document to the registrar: = Provided that=20 in such event the registrar may apply the provisions of section=20 thirty-three, even though the period concerned may have expired = before=20 application is made for extension.

(4) If a fund has = been=20 exempted as contemplated in section=20 2(3)(a), the registrar may authorize such fund to furnish to him, = instead of=20 the statements referred to in subsection (1), the information prescribed = by=20 regulation.

[Subs. (4) added by s. 22 of Act = 83/92]

15A. Rights to use of actuarial=20 surplus

(1) All actuarial = surplus=20 in the fund belongs to the fund.

(2) Once = actuarial surplus=20 is apportioned to either the member surplus account or the employer = surplus=20 account in terms of sections=20 15B and 15C,=20 members and the employer acquire rights to such actuarial surplus as = provided=20 for in this section.

(3) After the = commencement=20 date, the only portion of the assets of the fund that may be utilised = by, or for=20 the benefit of, the employer is any credit balance in the employer = surplus=20 account: Provided that the employer may continue a contribution holiday, = which=20 the employer was already taking immediately prior to the commencement = date, only=20 if the value of any contribution holiday taken by the employer during = any period=20 between the commencement date and the surplus apportionment date, = augmented by=20 the gross investment return earned by the fund, nett of expenses, over = the=20 corresponding period is added to the actuarial surplus to be apportioned = at the=20 surplus apportionment date in terms of section=20 15B(5).

(4) Any credit = balance in=20 the member surplus account must be used for the benefit of members as = provided=20 for in section=20 15D.

[S. 15A inserted by s. 4 of Act=20 39/2001]

15B. Apportionment = of=20 existing surplus

(1) (a) Subject to = paragraph=20 (b), the board of every fund that commenced prior to 7

March 2002 shall submit to the registrar a scheme for the = proposed=20 apportionment of any actuarial surplus (in this section referred to as = the=20 scheme) plus the details regarding any surplus utilised improperly by = the=20 employer as defined in subsection (6) as at the effective date of the = statutory=20 actuarial valuation of the fund coincident with, or next following, the=20 commencement date.

(b) The board = shall submit=20 the scheme not later than 18 months after the effective date = contemplated in=20 paragraph (a): Provided that -

(i) if the board = elects to=20 apportion actuarial surplus at a date earlier than the effective date of = the=20 next statutory actuarial valuation, it may do so if the statutory = valuation date=20 is advanced to such earlier date and the registrar is satisfied as to = the=20 reasons therefore;

(ii) if the fund = is=20 liquidated in terms of section=20 28 or 29=20 at a date prior to the effective date of the next statutory actuarial = valuation,=20 the effective date of the liquidation shall be the surplus apportionment = date;

(iii) if a category = of=20 members of the fund is converted from defined benefit to defined = contribution=20 and the effective date of the conversion is earlier than the next = statutory=20 actuarial valuation date, the effective date of the conversion shall be = the=20 surplus apportionment date and a statutory actuarial valuation is = required as at=20 such date; or

(iv) if the = registration of=20 a fund is cancelled in accordance with section=20 27 and the effective date of cancellation is earlier than the next = statutory=20 actuarial valuation date, the effective date of the cancellation shall = be the=20 surplus apportionment date.

(2) A scheme = -

(a) shall comply = with such=20 conditions as may be prescribed; and

(b) may involve=20 -

(i) the = improvement of=20 benefits to existing members;

(ii) increases to = benefits=20 or transfer values in respect of former members;

(iii) the crediting = of an=20 amount to the member surplus account;

(iv) the crediting = of an=20 amount to the employer surplus account; or

(v) any two or = more of the=20 matters contemplated in subparagraphs (i) to (iv).

(3) The board = shall appoint=20 a person to represent the interests of former members in the development = of the=20 scheme and such person shall -

(a) assist the = board in=20 -

(i) identifying = former=20 members;

(ii) communicating = proposals=20 to former members and to the funds to which former members=20 transferred;

(iii) conveying = proposals=20 from former members, and the funds to which they transferred, to the = board;=20 and

(iv) collating any = objections to the scheme from former members and the funds to which they = transferred;

(b) be required = to report,=20 in writing to the board, on -

(i) the adequacy = of the=20 steps taken by the board to include former members in terms of = subsection (4);=20 and

(ii) where it was = necessary=20 for the board to apply its discretion with regard to the inclusion of = former=20 members and the apportionment of actuarial surplus to such former = members,=20 whether or not the exercise of such discretion was reasonable taking = into=20 account the demands of equity within the bounds of practicality and the=20 circumstances of the particular fund: Provided that such report must = accompany=20 the scheme when it is submitted to the registrar in terms of subsection=20 (9).

(4) The board = shall=20 determine who may participate in the apportionment of actuarial surplus, = and=20 shall include in such apportionment existing members and any former = members who=20 left the fund in the period from 1 January 1980 to the surplus = apportionment=20 date: Provided that -

(a) the board may = exclude=20 from participation former members in respect of whom the board satisfies = the=20 registrar that insufficient records are available to enable the = additional=20 benefits that may be due to such former members to be calculated, after = the=20 board has taken reasonable steps -

(i) to obtain = such records=20 from the administrator;

(ii) to construct = such=20 records from the records of the -

(aa) = employer;

(bb) any fund to = which=20 former members transferred; or

(cc) a trade union = or staff=20 association active in the workplace during this period; or

(iii) if the steps = in=20 subparagraphs (i) and (ii) do not yield sufficient information, to = obtain such=20 records from the potential claimants themselves following an = advertisement=20 -

(aa) on a national = basis and=20 in the area where the former members used to work; or

(bb) on a more = limited basis=20 as approved by the registrar if representations by the fund satisfy the=20 registrar that limited advertisement will be adequate, inviting the = former=20 members to come forward with evidence to substantiate their claim, after = which=20 advertisement the board should wait at least six months but no longer = than nine=20 months before excluding any former members because of a lack of = sufficient=20 information to enable the calculations to be performed;

(b) rather than = excluding=20 former members whose individual benefits cannot be determined, the board = may set=20 aside a portion of the actuarial surplus in a contingency reserve = account=20 explicitly established to satisfy claims of former members in terms of=20 subsection (5)(e).

(5) The board = shall=20 apportion the actuarial surplus between the various classes of = stakeholders whom=20 the board has determined shall participate in the apportionment in terms = of=20 subsection (4), following which such portion as is due to the employer = shall be=20 credited to the employer surplus account: Provided that -

(a) the actuarial = surplus=20 to be apportioned shall be increased by the amount of actuarial surplus = utilised=20 improperly by the employer prior to the surplus apportionment date as = determined=20 in terms of subsection (6);

(b) former = members shall=20 have the benefits previously paid to them, or the amounts previously = transferred=20 on their behalf, increased to the minimum benefit determined in terms of = section=20 14B(2) or 14B(6) as at the date when they left the fund, with such = increase=20 adjusted to the surplus apportionment date using the nett investment = earnings of=20 the fund over the corresponding period, and pensioners and deferred = pensioners=20 shall have their pensions increased to the minimum pension as determined = in=20 terms of section=20 14B(4), as a prior charge on the actuarial surplus to be = apportioned:=20 Provided further that, where the actuarial surplus to be apportioned is=20 insufficient to permit such increases after being increased in terms of=20 paragraph (a), the amounts shall be proportioned downwards until the = total to be=20 paid to former members, pensioners and deferred pensioners equals the = actuarial=20 surplus to be apportioned;

(c) after = deducting the=20 cost of the increases to former members, pensioners and deferred = pensioners in=20 terms of paragraph (b) the balance of the actuarial surplus shall be = equitably=20 split between existing members, former members and the employer in such=20 proportions as the board shall determine after taking account of the = financial=20 history of the fund: Provided further that the registrar may prescribe = certain=20 methods which, if used, shall be deemed to be equitable;

(d) if the amount = apportioned to the employer in terms of paragraph (c) is less than the = actuarial=20 surplus utilised improperly by the employer as determined in subsection = (6), the=20 difference between the amount -

(i) determined in = terms of=20 subsection (6); and

(ii) apportioned = to the=20 employer in terms of paragraph (c), shall represent a debt owed by the = employer=20 to the fund and the employer must submit a scheme conforming with the = prescribed=20 requirements and repay that debt within a maximum period approved by the = registrar;

(e) the board = shall=20 determine how, in the case of existing members and former members, the = allocated=20 portion of actuarial surplus shall be applied for their benefit, = including the=20 crediting of any portion to the members=92 surplus accounts or to the = members=92=20 individual accounts, as the case may be: Provided further that the board = may=20 allocate a portion of the actuarial surplus to be used for former = members to a=20 contingency reserve account which will be used to satisfy the claims of = former=20 members -

(i) who have been = identified in subsection (4)(a) but who cannot be traced; or

(ii) who did not=20 substantiate their claim during the nine-month period following the=20 advertisement in subsection (4)(a)(iii) but who do so after the end of = this=20 period; and

(f) the = surplus due=20 to any stakeholder as a result of a surplus apportionment scheme = approved by the=20 registrar, shall be increased or decreased with fund return from the = date=20 determined in line with section=20 15B(1) until the date the surplus is awarded, paid or = allocated.

(6) (a) For the = purposes of=20 this subsection -

=91cost=92 means the = difference between the=20 accrued liabilities in the fund as determined by the valuator = immediately=20 before, and immediately after, the improper utilisation of surplus: = Provided=20 that, where more than one use of actuarial surplus occurred = simultaneously, the=20 valuator shall determine how the difference between the accrued = liabilities=20 before any of the uses, and the accrued liabilities after all the uses = at that=20 date, shall be split between those uses;

=91employer=92 means the = employer or=20 employers participating in the fund at the time of the improper = utilisation of=20 surplus, determined in accordance with this section, and whom benefited = from the=20 improper use: Provided that where a subsequent employer or employers by = contract=20 or law became liable for the employee-related liabilities of the = previous=20 employer or employers, the subsequent employer is also liable for the=20 apportionment of surplus used improperly;

=91selected=92, in relation = to members,=20 means, in the case of a granting of benefits, a group of members to whom = the=20 benefits were granted to the exclusion of other members, and, in the = case of a=20 granting of benefits conditional on election by the member, a group of = members=20 to which the election was granted to the exclusion of other = members.

(b) The board = shall=20 investigate any improper utilisation of surplus by the employer prior to = the=20 surplus apportionment date which shall consist of any of the following = amounts=20 incurred from 1 January 1980 or since the date of the fund=92s = commencement or=20 such earlier date agreed to by the employer to the surplus apportionment = date:

(i) The cost of = benefit=20 improvements for executives in excess of the cost that would have = applied had=20 the executives enjoyed the benefits provided to other = members;

(ii) the cost of = any=20 additional pensions or deferred pensions or lump sum benefits granted to = selected members in lieu of the employer=92s obligation to subsidise = medical costs=20 of those members after retirement;

(iii) the cost to = recognise=20 prior pensionable service for selected members or for members = transferred into=20 the fund in excess of any amount paid into the fund in respect of such = prior=20 service; and

(iv) the value of = any=20 contribution holiday enjoyed by the employer after the commencement=20 date.

(i) Any use of = actuarial=20 surplus which the registrar is satisfied was approved by the members, or = by=20 trade unions representing members, after a clear and comprehensive = communication=20 exercise occurred as part of a negotiated utilisation of surplus by=20 stakeholders;

(ii) the cost or = value of=20 surplus utilised improperly by the employer shall be reduced by any=20 contributions or payments made to the fund by the employer and for such = specific=20 purpose;

(iii) for the = purposes of=20 paragraph (b)(i), where, in accordance with the rules of the fund, the = use for=20 the executive benefit in question has existed in the fund in its current = form=20 since inception of the fund; or

(iv) such surplus = utilised=20 for the purposes of remedying past unfair discrimination if the = registrar is=20 satisfied that the surplus utilised improperly was used for such=20 purposes.

(d) The = investigation=20 contemplated in paragraph (b) shall -

(i) be conducted = at the=20 fund=92s surplus apportionment date; and

(ii) be carried = out by the=20 board irrespective of the fund=92s financial position at the surplus = apportionment=20 date.

(e) Any surplus = utilised=20 improperly shall be increased or decreased by fund return from the = effective=20 date of the use until the date of receipt thereof by the = fund.

(7) At least 75 = per cent of=20 the members of the board duly constituted in terms of section=20 7A must approve the scheme.

(8) = Notwithstanding=20 anything to the contrary in the rules, no person other than the relevant = board=20 or, in the event of referral to the special ad hoc tribunal referred to = in section=20 15K, the special ad hoc tribunal, and the registrar may approve the=20 scheme.

(9) An = apportionment in=20 terms of this section shall be of no force or effect unless -

(a) the scheme, = the=20 statutory actuarial valuation as at the surplus apportionment date of = the fund,=20 as well as a copy of any other actuarial or other statement taken into = account=20 for purposes of the scheme and the report by the person appointed in = terms of=20 subsection (3), has been submitted to the registrar and the registrar is = satisfied that the statutory actuarial valuation has been prepared on=20 actuarially sound and acceptable principles prescribed;

(b) the registrar = has been=20 furnished with a certificate signed by the valuator stating -

(i) whether the = valuator=20 finds that the process of apportionment complied with this Act; = and

(ii) where it was = necessary=20 for the board to apply its discretion, whether the exercise of such = discretion=20 was not unreasonable taking into account the demands of equity within = the bounds=20 of practicality and the circumstances of the particular fund, together = with such=20 additional particulars or such special report by the valuator as the = registrar=20 may deem necessary for purposes of this subsection;

(c) the registrar = has been=20 furnished with such additional report as he or she may require from an=20 independent actuary appointed by him or her on such matters associated = with the=20 apportionment of the actuarial surplus as the registrar shall determine = and=20 including such information as may be prescribed: Provided that = -

(i) the registrar = shall=20 require such report where there are complaints in respect of the = apportionment=20 of surplus which have not been resolved to the satisfaction of the = complainants=20 concerned; and

(ii) the costs = resulting=20 from the appointment of such independent actuary shall be borne by the=20 fund;

(d) the fund = demonstrates=20 that reasonable measures have been taken to inform employers, members = and former=20 members, together with any fund to which former members transferred, of = the=20 scheme in a manner which is clear and understandable to the members and = former=20 members and which gives details of the allocation of the actuarial = surplus for=20 the benefit of the various stakeholders, including the amounts of any = actuarial=20 surplus which it is intended to credit to the member surplus account and = to the=20 employer surplus account, respectively, and the costs of any benefit=20 improvements for members and former members: Provided that-

(i) the manner of = communication and the type of information to be included in this = communication=20 may be prescribed and such prescription may include a requirement that = the=20 person appointed in terms of subsection (3), the independent actuary, if = any,=20 and the valuator shall certify that they are satisfied that the = communication=20 material is objective and contains sufficient information to enable any=20 stakeholder to judge the reasonableness of the scheme; and

(ii) the = communication shall=20 be explicit about how and where any complaint should be = lodged;

(e) the employer, = members,=20 former members, and any fund to which former members have transferred = have had=20 12 weeks after despatch of the communication in which to complain, in = writing,=20 to the board;

(f) the = board has=20 considered any objection contemplated in paragraph (e) before submitting = the=20 scheme to the registrar;

(g) the principal = officer=20 of the fund has furnished the registrar with details of all objections = lodged=20 with the board and the actions taken to address such = objections;

(h) the registrar = is=20 satisfied that the scheme is reasonable and equitable and accords full=20 recognition to the rights and reasonable benefit expectations of = existing=20 members and former members in respect of service prior to the surplus=20 apportionment date; and

(i) the = registrar has=20 forwarded a certificate to the principal officer of the fund to the = effect that=20 all the requirements of this subsection have been fulfilled.

(10) If the board fails to = submit a=20 scheme in terms of subsection (1) or if the registrar is not satisfied = that the=20 scheme is reasonable and equitable, or if the registrar considers that=20 unresolved complaints require investigation which may lead to a review = of such=20 scheme or the statutory actuarial valuation as at the surplus = apportionment date=20 of the fund for the purpose of determining the actuarial surplus in the = fund is=20 unacceptable to the registrar, or at the request of the board or at the = request=20 of the person appointed in terms of subsection (3), the registrar shall = require=20 the board to refer the scheme to a special ad hoc tribunal in terms of = section=20 15K, and such tribunal shall exercise the powers of the board in = terms of=20 this section, and any reference in this section to the board shall be = construed=20 as a reference to the tribunal.

(11) (a)=20 = Where a=20 board is not required in terms of subsection (1)(a) to submit a scheme=20 to

the registrar, such board shall submit a nil return, = together with=20 such additional particulars or reports by the board or other parties as = the=20 registrar may deem necessary.

(b) For purposes = of this=20 section =91nil return=92 means a written statement by the board, as may = be=20 prescribed, including the investigation, existence and details of = improper=20 utilisation of surplus contemplated in subsection (6).

(d) The employer, = members,=20 former members, and any fund to which former members have transferred = may within=20 12 weeks after the date of submission of a nil return object to such = return in=20 writing to the board, and a copy of the objection must be forwarded by = the board=20 to the registrar.

(e) (i) = The board=20 must consider such objections and to the satisfaction of the

registrar demonstrate that the objections have been dealt=20 with.

(ii) If the = registrar is not=20 satisfied that the objections have been dealt with satisfactorily, the = registrar=20 may direct that the nil return be reviewed or a scheme be submitted by = the board=20 where the registrar is of the opinion that a scheme is required in terms = of this=20 Act.

(f) The nil = return=20 shall be submitted to the registrar within 18 months of the fund=92s = surplus=20 apportionment date: Provided that a fund may apply to the registrar in = writing=20 to extend the period for such submission.

(g) The costs of = submitting=20 a nil return to the registrar shall be borne by the fund.

(h) The registrar = may=20 direct the fund to communicate the nil return to members, former members = and=20 current employers and may specify the manner in which the communication = must=20 take place.

(i) The = registrar may=20 prescribe additional requirements for nil returns.

(12) Where the = board=20 satisfies the registrar that employers which participate in the fund, on = the=20 understanding that their membership, financial position and contribution = rates=20 will be determined separately for each employer and communicated to such = employer, the registrar may permit such board to apply this section to = the=20 actuarial surplus in respect of the members employed by a particular=20 participating employer as if the corresponding membership, assets and=20 liabilities constituted a separate fund.

[S. 15B inserted by s. 4 of Act = 39/2001 and=20 substituted by s. 11 of Act 11/2007]

15C. Apportionment = of future=20 surplus

(1) The rules may = determine=20 any apportionment of actuarial surplus arising in the fund after the = surplus=20 apportionment date between the member surplus account and the employer = surplus=20 account.

(2) If the rules = are silent=20 on the apportionment of actuarial surplus arising after the surplus=20 apportionment date, any apportionment shall be deter mined by the board = taking=20 into account the interests of all the stakeholders in the fund: Provided = that,=20 notwithstanding anything to the contrary in the rules, neither the = employer nor=20 the members may veto such apportionment.

[S. 15C inserted by s. 4 of Act=20 39/2001]

15D. Utilisation = of surplus=20 for benefit of members

(1) = Notwithstanding=20 anything to the contrary in the rules of a fund but subject to = subsection (2),=20 any credit balance in the member surplus account may only be used by the = board=20 to-

(a) improve = benefits for=20 existing members;

(b) improve the = benefits=20 previously paid to former members or the amounts previously transferred = in=20 respect of former members;

(d) meet, in full = or in=20 part, expenses which would otherwise reduce the proportion of the = members=92=20 contributions that are invested for retirement:

Provided that=20 the employer appointed members of the board shall not have a vote in any = deliberation over the use of any credit balance in the member surplus = account=20 unless the proposal before the board will increase the contribution rate = payable=20 by the employer.

(2) The credit = balance=20 contemplated in subsection (1) after the apportionment of actuarial = surplus as=20 at the surplus apportionment date must be used as specified in the = scheme=20 submitted in terms of section=20 15B(1) if the scheme makes provision for the use of such credit=20 balance.

[S. 15D inserted by s. 4 of Act=20 39/2001]

15E. Utilisation = of surplus=20 for benefit of employer

(1) = Notwithstanding=20 anything to the contrary in the rules a participating employer may = request the=20 board to use actuarial surplus allocated to the employer surplus account = in=20 terms of sections=20 l5B, 15C=20 and 15F=20 for use by that employer for any of the following purposes, = namely-

(a) funding a = contribution=20 holiday;

(b) payment of = pensions, or=20 an increase in pensions in course of payment, so as to compensate = members for=20 the loss of any subsidy from the employer of their medical costs after=20 retirement;

(c) meeting, in = full or in=20 part, expenses which the employer is obliged to pay in terms of the = rules of the=20 fund;

(d) improving the = benefits=20 payable to all members, or a category of members as defined in the = rules, as=20 determined by the employer;

(e) transferring = part, or=20 all, of the employer surplus account in terms of subsection (2) to the = employer=20 surplus account in another fund where the employer is a participating=20 employer;

(f) on = liquidation of=20 the fund in terms of sections=20 28 or 29,=20 payment in cash to the employer in terms of section=20 15I;

[Para. (f) amended by s. 12 of = Act=20 11/2007]

(g) in order to = avoid=20 retrenchment of a significant proportion of the workforce, payment in = cash to=20 the employer in terms of section=20 15J; and

[Para. (g) amended by s. 12 of = Act=20 11/2007]

(h) transferring = part, or=20 all, of the employer surplus account to the member surplus account in = the same=20 fund:

[Para. (h) added by s. 12 of Act = 11/2007]

Provided that=20 the members of the board who have been elected by members of the fund = shall not=20 have a vote in any deliberation over the use of any credit balance in = the=20 employer surplus account.

(2) The registrar = may=20 approve the transfer of a portion of the employer surplus account from = the fund=20 to the employer surplus account in another fund, if the following = conditions are=20 satisfied, namely that-

(a) the employer = who has=20 control of the employer surplus account in terms of the rules of the = fund has=20 similar control of the employer surplus account in the transferee=20 fund;

(b) employees of = the=20 employer are members or former members of the fund to which the transfer = is=20 made;

(c) the employer = applies to=20 the registrar for approval of the transfer, giving such details and = supporting=20 reports as the registrar may require; and

(d) the registrar = is=20 satisfied that such transfer is necessary in order to achieve an equitable=20 distribution of the surplus between the funds.

[S. 15E inserted by s. 4 of Act=20 39/2001]

15F. Existing employer reserve=20 accounts

(1) On or after = the=20 commencement date, the board may apply to the registrar to transfer all = or some=20 of the credit balance in an existing reserve account as defined in the = rules to=20 the employer surplus account.

[Subs. (1) substituted by s. 13 = of Act=20 11/2007]

(2) The registrar = may=20 approve such transfer if he or she is satisfied that the allocation of = actuarial=20 surplus to such account was negotiated between the stakeholders in a = manner=20 consistent with the principles underlying sections=20 15B and 15C.

(3) Any remaining = portion=20 of the credit balance in an existing reserve account shall be treated as = actuarial surplus to be distributed in terms of section=20 15B.

[Subs. (3) substituted by s. 13 = of Act=20 11/2007]

[S. 15F inserted by s. 4 of Act=20 39/2001]

15G. Right to share in surplus = accounts on=20 exit

(1) = Notwithstanding=20 anything to the contrary in the rules, members who cease to be members = of the=20 fund should receive, as part of their transfer values or benefit = payments, a=20 share of any credit balances in the member surplus account, the = investment=20 reserve account and such contingency reserve accounts as the board deems = appropriate, in the ratio that the liability of the fund in respect of = the past=20 service of the members leaving the fund bears to the liability of the = fund=20 towards all its members in respect of past service at that date: = Provided that=20 the board may use a reasonable alternative if there are sound = administrative=20 reasons why such a calculation cannot be performed.

(2) = Notwithstanding=20 anything to the contrary in the rules, existing members and former = members may=20 not participate in the employer surplus account when they transfer out = of a fund=20 or when they become entitled to a benefit, unless the relevant employer = so=20 directs.

[S. 15G inserted by s. 4 of Act=20 39/2001]

15H. Use of contents of any surplus = accounts=20 to fund deficits

(1) If a fund has = credit=20 balances in the member surplus account or the employer surplus account = and the=20 fund is found to have a deficit following an actuarial valuation, = including a=20 valuation carried out for the purpose of distributing assets on = liquidation of=20 the fund, such credit balances shall be reduced in the same proportion = by the=20 amount of the deficit: Provided that no credit balance may be reduced by = more=20 than the amount to which the account was in credit.

(2) If the = deficit exceeds=20 the credit balances in the member surplus account and the employer = surplus=20 account, these credit balances shall be applied in full to reduce the = deficit=20 and shall be reduced to zero.

[S. 15H inserted by s. 4 of Act=20 39/2001]

15I. Application = of surplus=20 accounts on liquidation of fund

On = liquidation=20 of a fund in terms of section=20 28 or 29,=20 any credit balances in any reserve accounts, the member surplus account = and the=20 employer surplus account shall be applied in the following order of=20 priority:

(a) All credit = balances in=20 such accounts may be drawn upon to secure the rights and reasonable = benefit=20 expectations of the members participating in the distribution: Provided = that the=20 credit balances in any such accounts shall be reduced by the same=20 proportion.

(b) Any remaining = credit=20 balances in the member surplus account, any contingency reserve accounts = and any=20 surplus which has not been allocated to the member and employer surplus=20 accounts, shall be used for the benefit of the members and former = members of the=20 fund, in such manner as the liquidator, acting on the advice of the = valuator,=20 shall determine.

(c) Any remaining = balance=20 in the employer surplus account shall be paid to the employer unless the = employer was liquidated prior to the =20 commencement of the liquidation of the fund, in which case it = shall be=20 used in the following order of priority, namely-

(i) to meet = contributions deducted from members=92 earnings and not paid to the=20 fund;

(ii) to meet = contributions=20 due from the employer but not paid to the fund; and

(iii) to be = distributed=20 amongst the members at the date of liquidation and such former members = as are=20 eligible in terms of the rules to participate in the = distribution.

[S. 15I inserted by s. 4 of Act=20 39/2001]

15J. Use of employer surplus = to prevent=20 job losses

(1) A fund may = apply to the=20 registrar for permission to pay any credit balance in an employer = surplus=20 account to an employer where negotiations in terms of section=20 189 of the Labour Relations Act, 1995 (Act No. 66 of 1995), have = confirmed=20 the need to retrench employees if additional capital is not obtained: = Provided=20 that an independent auditor may be required by the fund to certify such=20 need.

(2) The = application must be=20 made to the registrar in the prescribed manner

(3) The registrar = may only=20 grant an application, and issue a certificate to the applicant to the = effect=20 that the requested payment may take place, if the registrar is satisfied = that-

(a) members have = had full=20 disclosure of the current financial position of the fund and the = proposed=20 distribution to the employer, and the need of the employer for = additional=20 capital in order to maintain employment, together with the report of the = independent auditor, if any, and any information that members may = require to=20 exercise their rights under the Labour Relations Act, 1995 (Act No. 66 = of=20 1995);

(b) members have = had a=20 reasonable opportunity to consider the proposal;

(d) negotiations = in terms=20 of section=20 189 of the Labour Relations Act, 1995 (Act No. 66 of 1995), have = confirmed=20 the need to retrench more than 10 per cent of the membership of the fund = at the=20 previous financial year end if the payment is not made.

[S. 15J inserted by s. 4 of Act=20 39/2001]

15K. Specialist=20 tribunal

(1) (a) When the = board fails to=20 submit a scheme for the apportionment of an actuarial

surplus in terms of section=20 15B within the prescribed period, the registrar shall appoint a = special=20 ad hoc tribunal to perform the functions of the board set out in = section=20 15B.

(b) The registrar = shall=20 require the board to refer the scheme for the apportionment of an = actuarial=20 surplus in terms of section=20 15B to a special ad hoc tribunal to perform the functions of the = board set=20 out in section=20 15B, if -

(i) the registrar = is not=20 satisfied that the scheme submitted by the board in terms of section=20 15B is reasonable and equitable;

(ii) the registrar = considers=20 that unresolved complaints require investigation which may lead to a = review of=20 such scheme;

(iii) the statutory = actuarial=20 valuation as at the surplus apportionment date of the fund for the = purpose of=20 determining the actuarial surplus in the fund is unacceptable to the=20 registrar;

(iv) the board = requests it;=20 or

(v) the person = appointed in=20 terms of section=20 15B(3) requests it.

[Subs. (1) substituted by s. 14 = of Act=20 11/2007]

(2) The tribunal = shall=20 consist of at least three members who must all be independent of any = stakeholder=20 in the fund, and of whom-

(a) at least one = shall be a=20 lawyer selected by the board from a panel approved by the = registrar;

(b) at least one = shall be=20 an actuary selected by the board from a panel approved by the registrar; = and

Provided that=20 the registrar may select the members of the tribunal, if the board fails = to make=20 their selection within three months of the request being made by the=20 registrar.

(3) The tribunal = shall make=20 the apportionment within such period as may be determined by the=20 registrar.

(4) Three members = of the=20 tribunal shall constitute a quorum.

(5) The tribunal = shall=20 elect a chairperson from amongst its members and such chairperson shall = have a=20 deliberative vote but no casting vote.

(6) At least = two-thirds of=20 the members of the tribunal must agree to any decision or step taken in = the=20 exercise of the powers contemplated in section=20 15B(10).

(7) The tribunal = may follow=20 any procedure which it considers appropriate in conducting an = investigation,=20 including procedures in an inquisitorial manner, and affording any = stakeholder=20 the right to a hearing.

(8) = Notwithstanding section=20 22 of the Financial Services Board Act, 1990 (Act No 97 of 1990), = the=20 tribunal may obtain copies of any document or correspondence contained = in the=20 files of the registrar relating to a fund in connection with which the = tribunal=20 is conducting an investigation.

(9) (a) For purposes = of an=20 investigation, the tribunal may-

(i) under the = hand of the=20 chairperson, summon any person who in the opinion of the tribunal may be = able to=20 give material information concerning the subject matter of the = investigation or=20 who is believed by the tribunal to have in his or her possession or = custody or=20 under his or her control any book, document, record or thing which has = any=20 bearing on the subject matter of the investigation, to appear before it = at a=20 time and place specified in the summons, to be questioned or to produce = that=20 book, document, record or thing, and may retain for inspection any book, = document, record or thing so produced; and

(ii) through the = chairperson=20 administer an oath to, or accept an affirmation from, any person = summoned under=20 subparagraph (i) and question that person and require the person to = produce any=20 book, document, record or thing in his or her possession or custody or = under his=20 or her control.

(b) A summons = referred to=20 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=92s = court.

(c) In connection = with the=20 questioning of any person summoned under this section or the production = by such=20 person of any book, document, record or thing, the law relating to = privilege as=20 applicable to a witness summoned to give evidence or to produce a book,=20 document, record or thing in a civil trial before a court of law shall=20 apply.

(d) (i) = Any person=20 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=20 or she had been summoned to attend or had given evidence at a civil = trial in a=20 magistrate=92s court held at the place where the investigation is = held.

(ii) Any fees = which may=20 become payable in terms of subparagraph (i) shall be paid by the=20 fund.

(10) The tribunal = shall=20 keep, whether in writing or by mechanical or electronic means, a = permanent=20 record of the proceedings relating to the determination of a matter = before it,=20 including the apportionment of actuarial surplus and any evidence given: = Provided that such record shall be passed to the registrar once the = tribunal has=20 completed its determination.

(11) After the = tribunal has=20 completed an investigation, it shall send a statement containing its=20 determination and the reasons therefor, signed by the members of the = tribunal,=20 to all parties concerned as well as to the registrar.

(12) Any costs = arising from=20 the work of the tribunal, including periodical allowances or = compensation for=20 personal expenses of the members of the tribunal, shall be recovered = from the=20 fund out of the surplus being apportioned if the tribunal satisfies the=20 registrar that such costs were reasonably incurred in the performance of = the=20 required functions.

(13) Any member of = the=20 public may obtain a copy of the record from the registrar on payment of = a fee=20 determined by the registrar.

(14) The = determination of=20 the tribunal shall be binding on the stakeholders.

(15) The registrar = must=20 accept such determination as satisfying the requirements of section=20 15B(9) unless the registrar is of the opinion that the tribunal = failed to=20 exercise its discretion properly and in good faith.

[S. 15K inserted by s. 4 of Act=20 39/2001]

16. = Investigations by a=20 valuator

(1) Save as = provided in section=20 17, a registered fund shall, once at least in every three years, = cause its=20 financial condition to be investigated and reported upon by a valuator, = and=20 shall deposit a copy of such a report with the registrar, and shall send = a copy=20 of such report or a summary thereof, prepared by the valuator in a form=20 prescribed by regulation and signed by him, to every employer = participating in=20 the fund.

[Subs. (1) substituted by s. 16 = of Act=20 86/84]

(2) Such = investigation=20 shall be made in respect of the position as at the expiration of a = financial=20 year, and such report shall be deposited with the registrar within = twelve months=20 from the close of that year.

(3) In the case = of a fund=20 which is registered on the Commencement date of section 16 of the = Financial=20 Institutions Amendment Act, 1984, and which, before that date, has = caused its=20 financial condition to be investigated in terms of subsection (1), the = first=20 investigation after the said date shall be made in respect of the = position as at=20 the expiration of the fifth financial year which is completed after the=20 financial year-end in respect of which the previous investigation was = made or as=20 at the expiration of such earlier financial year as the fund may=20 select.

[Subs. (3) substituted by s. 16 = of Act=20 86/84]

(3A) =20 In the case of a fund which is registered on the Commencement = date of=20 section 16 of the Financial Institutions Amendment Act, 1984, but which = has not,=20 before that date, caused its financial position to be investigated in = terms of=20 subsection (1), the first investigation shall be made in respect of the = position=20 as at the expiration of the third financial year which is completed = after that=20 date or as at the expiration of the fifth financial year which is = completed=20 after the registration of the fund, whichever date is the earlier, or as = at the=20 expiration of such previous financial year as the fund may = select.

[Subs. (3A) inserted by s. 16 of = Act=20 86/84]

(4) In the case = of a fund=20 other than a fund mentioned in subsection (3) or (3A), the first = investigation=20 shall be made in respect of the position as at the expiration of the = third=20 financial year which is completed after the date of registration or as = at the=20 expiration of such previous financial year as the fund may = select.

[Subs. (4) substituted by s. 16 = of Act=20 86/84]

(5) = Notwithstanding=20 anything contained in the preceding subsections, the registrar may, with = the=20 consent of the Minister, and after not less than one month=92s notice in = writing=20 to any registered fund, require that fund to cause such an investigation = to be=20 made in respect of the position as at the expiration of any financial = year, if=20 the registrar is of the opinion that an investigation would show that = the fund=20 is not in a sound financial condition: Provided that in the case of a = fund which=20 is carrying out the terms of a scheme approved by the registrar in terms = of=20 section eighteen, the registrar shall not act in accordance with the = preceding=20 provisions, unless he is of the opinion that an investigation would show = that=20 such scheme is unlikely to accomplish the objects of that = section.

(6) If the rules = of a fund=20 provide that the benefits which may become payable to members are = subject to the=20 discretion of the management of the fund, the registrar shall, on the = request of=20 the fund and subject to the payment by the fund of such expenses as the=20 registrar may incur in the matter, determine what amount or scale of = benefits is=20 to be taken into consideration for the purpose of the valuation, and = such=20 determination by the registrar shall be binding upon the = fund.

(7) A report in = terms of=20 any of the preceding subsections shall include the particulars = prescribed by=20 regulation.

[Subs. (7) amended by s. 16 of = Act 86/84,=20 substituted by s. 9 of Act 50/86, amended by s. 4 of Act 54/91 and = substituted=20 by s. 23 of Act 83/92]

(8) Whenever a = registered=20 fund deposits with the registrar a copy of a report made by a valuator = in terms=20 of this section, it shall also deposit with the registrar a certificate = by the=20 board and by the principal officer that to the best of their knowledge = and=20 belief the information furnished to the valuator for the purposes of the = report=20 was correct and complete in every material respect and, where = applicable, that a=20 copy of the report or a summary thereof referred to in subsection (1) = was sent=20 to every employer participating in the fund.

[Subs. (8) substituted by s. 16 = of Act 86/84=20 and amended by s. 6 of Act 22/96]

(9) The = provisions of=20 subsection (3) of section=20 15 in connection with a document relating to the financial position = or the=20 revenue or expenditure of a fund referred to therein, shall apply = mutatis=20 mutandis in respect of a copy of a report deposited with the = registrar in=20 terms of subsection (1) of this section and which in the opinion of the=20 registrar does not correctly reflect its financial condition referred to = in the=20 said subsection (1).

[Subs. (9) added by s. 16 of Act = 86/84]

17. Modifications = where=20 investigations by a valuator are unnecessary

(1) If the = registrar is=20 satisfied that the financial methods adopted by a registered fund are = such as to=20 render periodical investigations by a valuator unnecessary, he shall, at = the=20 request of such fund, authorize the fund to prepare and furnish to the = registrar=20 a statement of its liabilities and assets in lieu of causing its = financial=20 condition to be investigated and reported upon by a valuator in terms of = section=20 sixteen.

(2) The = provisions of=20 subsections (2), (3), (4), (5) and (6) of section=20 sixteen shall mutatis mutandis apply to every fund referred = to in=20 subsection (1) of this section.

(3) Any statement = prepared=20 in terms of subsection (1) shall include the following particulars, = namely=20 -

(a) the nature = and amount=20 of the liabilities and contingent liabilities of the fund;

(b) a full = description of=20 each asset held by the fund together with such particulars in respect of = each=20 such asset as would enable an independent person to estimate the value = of such=20 asset on a sale between a willing seller and a willing buyer: Provided = that if a=20 compliance with the requirements of this paragraph would result in = unduly=20 voluminous returns, the fund concerned may group various classes of = assets=20 together, or otherwise abridge the statement in such manner as the = registrar may=20 approve;

(d) the aggregate = value=20 placed on the assets for purposes of the statement; and

(e) particulars = of any=20 pledge, hypothecation or other encumbrance of the assets of the = fund.

(4) The said = statement=20 shall be accompanied by a report thereon by the auditor of the fund, and = the=20 said auditor shall in his report state -

(a) in what = manner and to=20 what extent he has satisfied himself as to the amount of the liabilities = and=20 contingent liabilities shown on the statement;

(b) in what = manner and to=20 what extent he has satisfied himself as to the existence of the assets = shown on=20 the statement;

(c) to what = extent he has=20 satisfied himself that the particulars of such assets which are shown on = the=20 statement are correct;

(d) whether or = not in his=20 opinion the basis of valuation of each of the various kinds of assets = adopted by=20 the fund is financially sound;

(e) whether or = not, in his=20 opinion, the fund is in a sound financial condition;

(f) if he = is of the=20 opinion that the fund is not in a sound financial condition -

(i) in what = respects the=20 condition of the fund is in his opinion unsound; and

(ii) the causes or = probable=20 causes of such unsoundness;

(g) such other = particulars=20 as he deems relevant to the purposes of this Act.

18. Fund not in a = sound=20 financial condition

(1) When any = return under=20 this Act indicates, in the opinion of the registrar, that a registered = fund is=20 not in a sound financial condition, the registrar shall, save as = provided in section=20 twenty-nine, direct the fund to submit a scheme setting out the = arrangements=20 which have been made or which it is intended to make to bring the fund = into a=20 financially sound condition within a reasonable period, and the fund = shall=20 deposit such scheme with the registrar within three months from the date = of=20 receipt of the said direction, together with a report thereon by a = valuator or,=20 in the case of a fund to which the provisions of section seventeen = apply, by the=20 auditor of the fund.

(1A) When any = return under=20 this Act indicates a deficiency in a registered fund, the fund shall, = within=20 three months from the date of such return, submit a scheme to the = registrar=20 setting out the arrangements which have been made or which it is = intended to=20 make to eliminate the deficiency, together with a report thereon by a=20 valuator.

[Subs. (1A) inserted by s. 10 of = Act=20 50/86]

(2) If a = registrar finds=20 that a scheme submitted in terms of subsection (1) or (1A) is not = inconsistent=20 with the provisions of this Act and is satisfied that the arrangements = set out=20 therein should suffice to accomplish the objects of this section, he = shall=20 approve the scheme.

[Subs. (2) substituted by s. 10 = of Act=20 50/86]

(3) If the = registrar is not=20 satisfied regarding the matters referred to in subsection (2), he shall = request=20 the fund to make such amendments to the scheme, or to submit such new = scheme, as=20 will enable him to be so satisfied, and the fund shall comply with the = request=20 within a period prescribed by the registrar, not being less than 30 days = from=20 the date of the request, and shall at the same time furnish to the = registrar a=20 report on such amendments or such new scheme by the valuator or auditor=20 mentioned in subsections (1) and (1A), and the provisions of subsection = (2)=20 shall apply to any such amended scheme or new scheme which the fund may=20 submit.

[Subs. (3) substituted by s. 10 = of Act=20 50/86]

(4) The fund = shall carry=20 out the terms of any scheme approved by the registrar under this = section:=20 Provided that -

(a) the registrar = may, if=20 he is satisfied that none of the objects of this section would be = thereby=20 prejudiced, permit the said fund to amend such scheme from time to=20 time;

(b) if any return = deposited=20 with the registrar during the currency of such scheme in terms of this = Act=20 shows, in the opinion of the registrar, that the scheme is unlikely to=20 accomplish the objects of this section, he may withdraw his approval of = the=20 scheme, and the fund concerned shall, within three months thereafter, = prepare a=20 further scheme, to which the provisions of this section shall apply;=20 and

(c) if any such = return=20 shows, in the opinion of the registrar, that the financial condition of = the fund=20 is no longer unsound, he shall communicate with the principal officer of = the=20 fund to that effect and on receipt of such communication the obligations = of the=20 fund in respect of that scheme shall terminate immediately.

(5) (a) The registrar = may at=20 any time following an inspection carried out or investigation

conducted under section=20 25, or for any other reason which the registrar may consider = necessary in=20 the interests of the members of a fund, direct that an investigation in = terms of=20 section=20 16 or an audit or both an audit and such investigation be conducted = into the=20 financial position of a fund generally or with reference to any = financial aspect=20 of the fund.

(b) The costs = pertaining to=20 the audit or investigation contemplated in paragraph (a) shall = constitute a=20 first charge on the assets of the fund unless otherwise determined by = the=20 registrar.

(c) Following the = audit or=20 investigation contemplated in paragraph (a) a report must, within the = time and=20 in the format stipulated by the registrar, be furnished to the registrar = and the=20 board.

[Subs. (5) added by s. 15 of Act = 11/2007]

19. =20 Investments

(1) = =85=85=85.

[Subs. (1) amended by s. 13 of = Act 80/59, s.=20 9 of Act 58/66 and s. 2 of Act 23/70, substituted by s. 7 of Act 91/72 = and s. 23=20 of Act 101/76, amended by s. 14 of Act 103/79, s. 39 of Act 99/80, s. 14 = of Act=20 82/82, s. 20 of Act 46/84, s. 17 of Act 86/84 and s. 5 of Act 51/88 = and=20 deleted by s. 8 of Act 53/89]

(1A) = =85=85=85.

[Subs. (1A) inserted by s. 11 of = Act 94/77=20 and deleted by s. 14 of Act 103/79]

(2) = =85=85=85.

[Subs. (2) substituted by s. 5 = of Act 51/88=20 and deleted by s. 8 of Act 53/89]

(3) = =85=85=85.

[Subs. (3) deleted by s. 8 of = Act=20 53/89]

(4) Except as = provided for=20 in subsection (4A), no assets of a registered fund in excess of five per = cent of=20 their fair value, shall be invested in or lent to the business of an = employer=20 participating in the scheme or arrangement whereby the fund has been=20 established. Where the employer is a company (in this subsection called = the=20 employer company), the business of every other company which-

(a) is a=20 subsidiary-

(i) of the = employer=20 company; or

(ii) of any = subsidiary of=20 the employer company; or

(iii) of any = successive=20 subsidiary within the same hierarchy; or

(b) is the = holding=20 company-

(i) of the = employer=20 company; or

(ii) of the = holding company=20 of the employer company; or

(iii) of any = successive=20 holding company within the same hierarchy,

shall be deemed,=20 for the purposes of this subsection, to be part of the business of the = employer=20 company. In applying paragraphs (a) and (b), =91subsidiary=92 and = =91holding company=92=20 respectively mean-

(aa) a = =91subsidiary company=92=20 or =91subsidiary=92 as defined in section=20 1(1) of the Companies Act, 1973 (Act No. 61 of 1973);

(bb) a =91holding = company=92 as=20 defined in that section.

[Subs. (4) amended by s. 14 of = Act 103/79=20 and substituted by s. 2 of Act 94/97]

(4A) The = registrar, on=20 application by the Board, may allow a greater percentage of the fund=92s = assets,=20 but not exceeding 10 per cent of the fair value of the fund=92s assets, = to be=20 invested in or lent to that employer=92s business for the period and on = any=20 conditions determined by the registrar if, in that application, the = Board has=20 certified-

(a) that it has = consulted=20 with the members about the proposed investment in or loan to the = employer=92s=20 business; and

(b) that the = members=20 support the making of that investment or loan.

[Subs. (4A) inserted by s. 2 of = Act=20 94/97]

(4B) = Notwithstanding the=20 provisions of subsections (4) and (4A), no assets of a fund may be = invested in=20 or lent to such a participating employer=92s business unless it is in = the best=20 interest of the fund to do so.

[Subs. (4B) inserted by s. 2 of = Act=20 94/97]

(5) (a) A registered = fund may,=20 if its rules so permit and subject to the regulations, grant = a

loan to a member by way of investment of its funds or = furnish a=20 guarantee in favour of a person other than the fund in respect of a loan = granted=20 or to be granted by such other person to a member to enable the=20 member-

(i) to redeem a = loan=20 granted to the member against security of, either a pledge by the member = concerned to the fund of the benefit contemplated in paragraph (c)(ii), = or=20 immovable property which either belongs to the member or his or her = spouse or=20 the member and his or her spouse and on which a residence has been or = will be=20 erected which is occupied or, as the case may be, will be occupied by = the member=20 or a dependant of the member;

(ii) to acquire = immovable=20 property on which a residence has been or will be erected, or to erect a = residence on immovable property in respect of which, either the member = or his or=20 her spouse, or the member and his or her spouse, has or have obtained = ownership=20 or the right to ownership through a right of occupation, for occupation = by the=20 member or a dependant of the member; or

(iii) to make = additions or=20 alterations to or to maintain or repair a residence of which ownership = or the=20 right to ownership was obtained through a right of occupation by either = the=20 member or his or her spouse or the member and his or her spouse and = which is=20 occupied or will be occupied by the member or a dependant of the=20 member,

if = the right of=20 occupation of the immovable property or residence is secured by virtue = of the=20 operation of any custom or law, other than an agreement of lease or = similar=20 temporary measure, entitling such member, or his or her dependants, to = the right=20 of occupation of such immovable property or residence or any specified = portion=20 thereof.

(b) A loan or = guarantee by=20 a fund, contemplated in paragraph (a), shall not be granted or = furnished,=20 respectively, after the commencement of the Pension Funds Amendment Act, = 2001-

(i) unless = secured=20 by-

(aa) a first = mortgage on the=20 immovable property in respect of which the loan is granted; = or

(bb) a pledge by = the member=20 concerned to the fund of the benefits to which the member is entitled in = terms=20 of the rules of the fund; or

(cc) both such = mortgage and=20 such pledge;

(ii) in respect of = immovable=20 property if the member concerned is liable to the fund in respect of a = loan or=20 guarantee granted or furnished in respect of the member in respect of = other=20 immovable property;

(iii) unless, in = the case of=20 a loan granted by the fund, the rate of interest on the loan is equal to = or=20 exceeds the rate of interest which may from time to time be prescribed = by=20 regulation;

(iv) in the case = of a loan=20 granted to the member by some other person in respect of which a = guarantee has=20 been furnished by the fund, or in respect of a loan by the fund to the = member,=20 unless the capital sum in respect of any such loan together with = interest=20 thereon, is redeemable over a period not exceeding 30 years in equal = weekly or=20 monthly instalments: Provided that if such period in a particular case = extends=20 beyond the normal retirement date of the member concerned, the = outstanding=20 balance of the loan on that date must be able to be repaid out of no = more than=20 one third of the total value of the benefit due to the member at that=20 date.

(c) A loan or = guarantee=20 contemplated in paragraph (a) shall not exceed, at the time it is = granted or=20 furnished, where it is secured in accordance with-

(i) paragraph = (b)(i)(aa),=20 90 per cent of the fair value of the hypothecated immovable property=20 concerned;

(ii) paragraph = (b)(i)(bb),=20 the lesser of the amount of-

(aa) the lowest = benefit in=20 terms of the rules which the member would receive on termination of his = or her membership of the fund, = nett of=20 income tax as envisaged in section 37D(a); or

(bb) the fair = value of the=20 immovable property concerned; or

(iii) paragraph = (b)(i)(cc),=20 the lesser amount of-

(aa) the amount = equal to the=20 aggregate of 90 per cent of the fair value of the hypothecated immovable property concerned = and the=20 amount of the lowest benefit in terms of the rules which the member = would=20 receive on termination of his or her membership of the fund, nett of = income tax=20 as envisaged in section=20 37D(a); or.

(bb) the fair = value of the=20 hypothecated immovable property concerned.

(d) The = percentages=20 referred to in subparagraphs (i) and (iii) of paragraph (c) may be = increased to=20 100 per cent, subject to the furnishing to the fund by the employer of = the=20 member of an irrevocable guarantee in respect of so much of the loan or = the=20 amount of the guarantee as may exceed 90 per cent.

(e) For the = purposes of=20 this section =91immovable property=92 includes a land tenure right as = defined in section=20 1 of the Upgrading of Land Tenure Rights Act, 1991 (Act No. 112 of=20 1991).

[Subs. (5) substituted by s. 23 = of Act=20 101/76 and s. 11 of Act 80/78, amended by s. 14 of Act 103/79, s. 39 of = Act=20 99/80 and s. 11 of Act 50/86 and substituted by s. 2 of Act 65/2001] =

(5A) =20 (a) Where a = transaction for=20 the purchase of an immovable property is pending and a

purchase price has already been agreed upon, or where such = an=20 immovable property was acquired by purchase not more than six months = before the=20 date on which the estimate is made, the fair value of the property shall = not be=20 fixed at an amount higher than the true purchase price of the property, = as=20 declared or to be declared by the parties concerned for transfer duty = purposes;=20 and

(b) where a = transaction for=20 the erection of, or additions or alterations to, or to maintain or = repair a=20 residence is contemplated, the estimate of the fair value of the = immovable=20 property shall not be fixed at an amount higher than the fair value = contemplated=20 in paragraph (a) plus an amount equal to the cost of such erection, = additions,=20 alterations, maintenance or repairs, as the case may be.

[Subs. (5A) inserted by s. 23 of = Act 101/76=20 and substituted by s. 2 of Act 65/2001]

(5B) = Notwithstanding=20 anything to the contrary contained in the rules of a registered fund, = such a=20 fund shall not, directly or indirectly after the commencement of the = Pension=20 Funds Amendment Act, 2001-

(a) grant a loan = to, or=20 furnish a guarantee in respect of, a member or make any of its funds = available,=20 whether by way of an investment or otherwise, to be utilised in any = manner by=20 the fund or someone else for a loan to a member or a guarantee on behalf = of a=20 member, other than-

(i) a loan = contemplated in=20 subsection (5) and which complies with the provisions of that = subsection;=20 and

(ii) a guarantee=20 contemplated in subsection (5) and which complies with the provisions of = that=20 subsection; or

[Para. (a) substituted by s. 2 = of Act=20 65/2001]

(b) grant a loan = to, or=20 invest in the shares of -

(i) a company = controlled by=20 an officer or a member of the fund or a director of a company which is = an=20 employer participating in the scheme or arrangement whereby the fund has = been=20 established; or

(ii) a subsidiary = company or=20 a controlled company (as defined in the Companies Act, 1973 (Act No. 61 = of=20 1973)), of such a first-mentioned company.

[Subs. (5B) inserted by s. 23 of = Act 101/76,=20 substituted by s. 11 of Act 50/86 and amended by s. 2 of Act = 65/2001]

(5C) =20 A registered fund may, if its rules so permit, contribute to any = other=20 pension fund registered under this Act, or any fund of any kind = whatsoever,=20 which is conducted for the benefit of the employees of the said = registered=20 fund.

[Subs. (5C) inserted by s. 11 of = Act=20 80/78]

(6) (a) The registrar = may,=20 under exceptional circumstances, and on such conditions and

for such periods as he may determine, temporarily exempt = any fund=20 from compliance with any provision of subsection (5) or (5B) = (a).

[Para. (a) substituted by s. 7 = of Act 91/72,=20 s. 14 of Act 103/79, s. 17 of Act 86/84 and s. 8 of Act 53/89 and = amended by s.=20 2 of Act 94/97]

(b) = =85=85=85.

[Para. (b) added by s. 1 of Act = 80/69,=20 substituted by s. 23 of Act 101/76 and deleted by s. 17 of Act = 86/84]

[Para. (c) added by s. 7 of Act = 91/72 and=20 deleted by s. 11 of Act 64/90]

[Sub-s. (6) substituted by s. 9 = of Act=20 58/66]

(7) The Minister = may in=20 writing delegate to the registrar or any other officer in the public = service any=20 power conferred on the Minister by this section.

[Subs. (7) added by s. 9 of Act = 58/66,=20 substituted by s. 7 of Act 91/72, amended by s. 23 of Act 101/76, = deleted by s.=20 17 of Act 86/84 and inserted by s. 11 of Act 64/90]

(8) = =85=85=85.

[Subs. (8) added by s. 23 of Act = 101/76,=20 substituted by s. 17 of Act 86/84 and deleted by s. 8 of Act = 53/89]

20. Requirements = in regard=20 to documents to be deposited with registrar

(1) A registered = fund shall=20 be deemed not to have complied with any provision of this Act, which = imposes=20 upon such fund the obligation to furnish to the registrar a document = prepared by=20 the fund, unless such document is signed by the principal officer and = one other=20 person authorized in accordance with the rules of the fund to sign=20 documents.

(2) If any person = (other=20 than an auditor or a valuator) who is not a natural person, is required = by any=20 provision of this Act to sign any document which is to be furnished to = the=20 registrar, such document shall be signed on behalf of such person as = follows,=20 that is to say -

(a) if such = person is a=20 committee of individuals, by the person for the time being at the head = of the=20 committee and by one other member thereof;

(b) if such = person is an=20 association of persons, by the individual who is for the time being at = the head=20 of the board of directors or other committee controlling such = association, and=20 by one other member of such board or committee;

(c) in any other = case, by=20 individuals designated by the registrar, who exercise any control over = the=20 business of the said person.

(3) Any person = who is=20 required in terms of any provision of this Act to furnish to the = registrar=20 -

(a) any original = document,=20 shall also furnish such additional copies thereof, not exceeding three = in=20 number, as may be prescribed by regulation or as the registrar may=20 require;

(b) a copy of any = document,=20 shall furnish one copy thereof certified as correct -

(i) in the case = of a=20 registered fund, by its principal officer; and

(ii) in any other = case, by=20 the person by whom such copy is required to be furnished,

together with so=20 many additional copies, not exceeding three, as may be prescribed by = regulation=20 or as the registrar may require.

21. Registrar may = require=20 additional particulars in case of certain applications and=20 returns

(1) If the = registrar is of=20 opinion that -

(a) any = application for=20 registration of a fund or of an alteration or rescission of rules or of = an=20 additional rule; or

(b) any return or = scheme=20 relating to the financial condition of a fund,

does not disclose sufficient information to enable him to = make the=20 necessary decision, the person concerned shall furnish such additional=20 particulars as the registrar may deem necessary.

(2) If the = registrar is of=20 opinion that a certificate or special report by a valuator or by the = auditor of=20 a fund is necessary in regard to any matter set out in subsection (1), = the=20 person concerned shall furnish such certificate or report as the = registrar may=20 require.

22. Inspection of = documents

(1) Upon payment = of the=20 fees prescribed by regulation any person may inspect at the office of = the=20 registrar any document referred to in section=20 thirty-five and make a copy thereof or take extracts therefrom, or = obtain=20 from the registrar a copy thereof or extract therefrom.

(2) The registrar = may=20 exempt any person from the obligation to pay fees under this section if = he is=20 satisfied that the inspection, copy or extract in question is desired = for the=20 purpose of furthering some public interest.

(3) The registrar = shall=20 without charge furnish any applicant therefor with particulars of the = address of=20 the registered office and the name of the principal officer of any = registered=20 fund.

23. Effect of = registrar=92s=20 certificate on documents

Every document=20 which purports to have been certified by the registrar to be a document=20 deposited at his office under the provisions of this Act, or to be a = copy of=20 such a document, shall prima facie be deemed to be such a document, or a = copy=20 thereof, and every such copy shall be admissible in evidence as if it = were the=20 original document.

CHAPTER = V

ENQUIRIES BY REGISTRAR, APPLICATIONS TO COURT, CANCELLATION = OR=20 SUSPENSION OF REGISTRATION AND DISSOLUTION OF = FUNDS

24. =20 Enquiries

The registrar=20 may address enquiries to any registered fund in relation to any matter = connected=20 with its business or transactions, and it shall be the duty of the fund = to reply=20 in writing thereto within a period of thirty days as from the date upon = which=20 the registrar addressed the enquiry to it or within such further period = as the=20 registrar may allow.

25. Inspections = and=20 investigations

(1) In addition = to the=20 powers and duties conferred or imposed upon him or her by this Act, the=20 registrar shall have all the powers and duties conferred or imposed upon = him or=20 her by the Inspection=20 of Financial Institutions Act, 1998 (Act No. 80 of 1998).

(2) = Notwithstanding=20 subsection (1), the registrar may instruct any person to conduct a = compliance=20 visit of the business and affairs of a fund or of an administrator = approved in=20 terms of section=20 13B, in order to determine whether this Act, the rules of the fund = or the=20 conditions of the administrator=92s approval are being complied = with.

(3) A person = conducting a=20 compliance visit in terms of subsection (2) -

(a) has a right = of access=20 at any reasonable time to all such documents or records as may = reasonably be=20 required for the purposes of the compliance visit; and

(b) may require = an=20 administrator or any person holding, or who is accountable for, any such = document or record or involved in the management of the business or = affairs of=20 the fund, to provide such information and explanation as may be = necessary for=20 purposes of the compliance visit.

(4) Any reference = in this=20 Act to an inspection carried out or an investigation conducted under = this=20 section must be construed as a reference to an inspection carried out = under=20 subsection (1), or a compliance visit conducted under subsection (2), as = the=20 case may be.

[S. 25 substituted by s. 11 of = Act 68/62 and=20 s. 16 of Act 11/2007]

26. Registrar may = intervene=20 in management of fund

(1) The registrar = may,=20 after considering the interests of the members of a fund (or of the = several=20 categories of members if there is more than one such category), direct = that the=20 rules of the fund, including rules relating to the appointment, powers,=20 remuneration (if any) and removal of the board, be amended if the = results of an=20 inspection or investigation under section=20 25 necessitates amendment of the rules of the fund or if the = registrar is of=20 the opinion that the fund -

(a) is not in a = sound=20 financial condition or does not comply with the provisions of this Act = or the=20 regulations affecting the financial soundness of the fund;

(b) has failed to = act in=20 accordance with the provisions of section=20 18; or

(2) Where a fund = has no=20 properly constituted board contemplated in section=20 7A and has failed to constitute a board after 90 days written notice = by the=20 registrar, the registrar may, notwithstanding the rules of the fund, at = the cost=20 of the fund -

(a) appoint so = many persons=20 as may be necessary to the board of the fund or appoint so many persons = as may=20 be necessary to make up the full complement or quorum of the board;=20 and

(b) assign to = such board=20 such specific duties as the registrar deems expedient.

(3) A board = constituted in=20 terms of subsection (2) holds office until the registrar is satisfied = that the=20 fund has constituted a valid board in terms of section=20 7A and the registrar has relieved the former board in writing of its = duties.

(4) If the = registrar has=20 reason to believe that a board member is not fit and proper to hold = office, the=20 registrar may, after giving the board member a reasonable opportunity to = be=20 heard, direct the board member to vacate office.

(5) In the = circumstances=20 described in subsection (4), the fund shall cause the vacancy to be = filled in=20 accordance with the provisions of section 7A and the rules of the fund, = failing=20 which the registrar may adopt the course set out in subsection = (2).

[S. 26 amended by s. 6 of Act = 22/96 and=20 substituted by s. 17 of Act 11/2007]

27. Cancellation = or=20 suspension of registration

(1) The registrar = shall=20 cancel the registration of a fund -

(a) on proof to = his=20 satisfaction that the fund has ceased to exist; or

(b) if the = registrar and=20 the fund are agreed that the fund was registered by mistake in = circumstances not=20 amounting to fraud:

Provided that in=20 the circumstances stated in paragraph (b), the registrar may suspend the = registration in lieu of cancelling it, if he is satisfied that by so = doing the=20 fund will be furnished with an opportunity of rectifying the said = mistake to the=20 satisfaction of the registrar, the latter shall thereupon reinstate the = said=20 registration, as from the date of suspension but if the mistake is not = rectified=20 within a period specified by the registrar he shall cancel the = registration of=20 the fund.

(2) The registrar = may apply=20 to the court for the cancellation or suspension of the registration of a = fund if=20 -

(a) the fund has = wilfully=20 and after notice from the registrar violated any provision of this Act;=20 or

(b) the registrar = is of=20 opinion, as a result of an investigation under section twenty-five, that = the=20 registration should be cancelled or suspended.

(3) The court may = cancel=20 the registration of the fund or suspend such registration for such = period as it=20 thinks fit, and may attach to such cancellation or suspension such = conditions as=20 it thinks desirable, or may make any other order which in the = circumstances it=20 thinks desirable.

(4) Unless the = court=20 otherwise orders, the costs of the registrar in or in connection with = the=20 application shall be paid by the fund and shall be a first charge upon = the=20 assets of such fund.

28. Voluntary = dissolution=20 of fund

(1) Subject to = the=20 provisions of this section, a registered fund may be terminated or = dissolved,=20 whether wholly or in part, in the circumstances (if any) specified for = that=20 purpose in its rules, and in the manner provided by those rules. In such an event, the = assets of=20 the fund, or, in the case of the partial termination of the fund, those = assets=20 of the fund attributable to the members connected to the participating = employer=20 whose withdrawal from the fund has caused its partial termination (as = the case=20 may be), shall, subject to the provisions of this section, be = distributed in the=20 manner provided by those rules.

[Subs. (1) substituted by s. 25 = of Act 83/92=20 and s. 3 of Act 94/97]

(2) A liquidator = shall be=20 appointed in the manner directed by the rules, or, if the rules do not = contain=20 directions as to such appointment, by the board, but such appointment = shall be=20 subject to the approval of the registrar, and the period of liquidation = shall be=20 deemed to commence as from the date of such approval.

[Subs. (2) amended by s. 6 of = Act=20 22/96]

(3) During such = liquidation=20 the provisions of this Act shall continue to apply to such fund as if = the=20 liquidator were the board.

[Subs. (3) amended by s. 6 of = Act=20 22/96]

(4) (a) The = liquidator shall as=20 soon as may be possible, deposit with the registrar the

preliminary accounts prescribed by regulation, signed and = certified=20 as correct by the liquidator and showing the assets and liabilities of = the fund=20 as at the commencement of the liquidation as well as the = manner in=20 which it is proposed to realize the assets and to discharge the = liabilities,=20 including any liabilities and contingent liabilities to or in respect of = members, or, in the case of the partial termination of the fund, the = assets and=20 liabilities of the fund attributable to the members connected to the=20 participating employer whose withdrawal from the fund has caused its = partial=20 termination.

[Para. (a) substituted by s. 3 = of Act=20 94/97]

(b) In = discharging the=20 liabilities and contingent liabilities to or in respect of members = referred to=20 in paragraph (a) full recognition shall be accorded to -

(i) the rights = and=20 reasonable benefit expectations of the persons concerned;

(ii) additional = benefits the=20 payment of which by the fund has become an established = practice.

[Subs. (4) substituted by s. 25 = of Act=20 83/92]

(5) If deemed = fit, the=20 registrar may direct the liquidator to furnish a report, drawn up by an=20 independent valuator or other competent person nominated by the = registrar on the=20 preliminary accounts.

[Subs. (5) substituted by s. 3 = of Act=20 94/97]

(6) The = preliminary=20 accounts and report (if any) referred to in subsection (5) shall lie = open for=20 inspection by interested persons for a period of 30 days at the office = of the=20 registrar and at the registered office of the fund, and where the = registered=20 office of the fund is not in the district in which the office of the = registrar=20 is situate, at the office of the magistrate of the district in which the = registered office of the fund is situate.

[Subs. (6) substituted by s. 3 = of Act=20 94/97]

(7) The registrar = shall=20 direct the liquidator to publish a notice, at the cost of such a fund, = in the Gazette and in one newspaper = in the=20 English language and one in the Afrikaans language, or, if deemed = necessary in=20 the circumstances, in any other official language, circulating in the = district=20 in which the registered office of the fund is situate and in which is = stated the=20 period during which and the places at which the preliminary accounts and = report=20 (if any) shall lie open for inspection by interested persons. The notice = shall=20 call upon any interested persons who have any objection to the = preliminary=20 accounts and report (if any) to lodge their objections in writing with = the=20 registrar within the period stated in the notice, which period shall not = be=20 shorter than fourteen days, calculated as from the last day on which = those=20 documents lie open for inspection.

[Subs. (7) substituted by s. 3 = of Act=20 94/97]

(7A) =20 If, in the case of a particular fund or a particular = participating=20 employer whose withdrawal from the fund has caused its partial = termination, the=20 registrar is satisfied on reasonable grounds that there exist special=20 circumstances which justify exemption from the provisions of subsections = (6) and=20 (7), the registrar, having due regard to the rights of interested = persons, may=20 exempt the fund from all or any of the provisions of those subsections = if deemed=20 expedient in the circumstances. Such an exemption shall be subject to = the=20 conditions determined from time to time by the registrar by notice in = the=20 Gazette.

[Subs. (7A) inserted by s. 3 of = Act=20 94/97]

(8) If no = objections are=20 lodged with the registrar in terms of subsection (7), he shall direct = the=20 liquidator to complete the liquidation.

(9) If objections = are=20 lodged with the registrar in terms of subsection (7), the registrar may, = after=20 considering the said objections, direct the liquidator to amend the = preliminary=20 accounts or give such other directions relating to the liquidation as he = thinks=20 fit, provided such directions are not inconsistent with the rules of the = fund or=20 this section, and any such direction shall be binding upon the=20 liquidator.

[Subs. (9) substituted by s. 25 = of Act=20 83/92]

(10) The = liquidator shall,=20 within fourteen days of the receipt by him of any direction of the = registrar in=20 terms of subsection (9), post a copy thereof to every member, = shareholder and=20 creditor of the fund, and the liquidator or any person aggrieved by any = such=20 direction of the registrar may apply by motion to the court within = twenty-eight=20 days after such direction has been communicated to the liquidator, for = an order=20 to set aside the registrar=92s decision, and the court may confirm the = said=20 decision or make such order as it thinks fit.

(11) If the registrar is = satisfied that=20 his directions, in so far as they have not been varied or set aside by = the=20 court, have been given effect to, he shall direct the liquidator to = complete the=20 liquidation.

(12) Within 30 = days after=20 completion of the liquidation, the liquidator shall lodge with the = registrar the=20 final accounts prescribed by regulation signed and certified as correct = by the=20 liquidator and showing-

(a) the assets = and=20 liabilities of the fund, as at the commencement of the liquidation, or, = in the=20 case of the partial termination of the fund, those assets and = liabilities of the=20 fund which, at the commencement of the liquidation, are attributable to = the=20 members connected to the participating employer whose withdrawal from = the fund=20 has caused its partial termination; and

(b) the manner in = which the=20 assets have been realized and the liabilities (including any liabilities = and=20 contingent liabilities to or in respect of members) have been=20 discharged.

[Subs. (12) substituted by s. 3 = of Act=20 94/97]

(12A) Notwithstanding any = provision to the=20 contrary in this section, the registrar, on good cause shown, may = authorise the=20 liquidator to make payment of any amounts to the members and = beneficiaries of a=20 fund before submission of the final accounts and report (if any), = subject to the=20 conditions that may be prescribed from time to time.

[Subs. (12A) inserted by s. 3 of = Act 94/97=20 and substituted by s. 18 of Act 11/2007]

(13) The = provisions of the=20 Companies Act, 1973 (Act No. 61 of 1973), shall apply mutatis = mutandis to=20 the dissolution of a fund in terms of this section, in so far as the = said=20 provisions relate to a voluntary winding-up in terms of the said Act, = and in so=20 far as the said provisions are applicable and not inconsistent with any=20 provisions of this Act.

[Subs. (13) substituted by s. 15 = of Act=20 103/79]

(14) All claims against the = fund shall=20 be proved to the satisfaction of the liquidator, subject to a right of = appeal to=20 the court, and the liquidator may require any claim to be made on=20 affidavit.

(15) The = registrar, if=20 satisfied that the liquidator=92s accounts in respect of the fund are = correct and=20 that the liquidation has been completed, shall-

(a) cancel the = registration=20 of the fund, in the case where the fund is wholly terminated, whereupon = the fund=20 shall be dissolved; or

(b) in the case = of the=20 partial dissolution of the fund, only confirm the completion of the = partial=20 liquidation of the fund.

[Subs. (15) substituted by s. 3 = of Act=20 94/97]

(16) For the = purposes of=20 this section, =91participating employer=92 means any employer who = participates in=20 the scheme or arrangement whereby a fund has been = established.

[Subs. (16) added by s. 3 of Act = 94/97]

(17) The registrar = may=20 prescribe the circumstances under which a fund may be exempted from the=20 provisions of this section and must prescribe the requirements to be = complied=20 with for such exemption to be granted.

[Subs. (17) added by s. 18 of = Act=20 11/2007]

28A. Remuneration = of=20 liquidator

(1) The registrar = by notice=20 in the Gazette shall determine the services for which = remuneration shall=20 be payable to the liquidator of a fund which is terminated or dissolved=20 voluntarily, whether wholly or in part, and prescribe the tariff of = remuneration=20 in respect of those services.

(2) = Notwithstanding=20 subsection (1), the registrar may reduce or increase the liquidator=92s=20 remuneration if satisfied on reasonable grounds that there is good = reason for=20 doing so, and the registrar may disallow the liquidator=92s remuneration = because=20 of any failure or delay to carry out the liquidator=92s duties or to = carry them=20 out properly and effectively.

[S. 28A inserted by s. 4 of Act=20 94/97]

29. = Winding-up by the=20 court

(1) If the = registrar is of=20 the opinion that a fund is in such an unsound financial condition that = any=20 scheme as contemplated by section=20 eighteen would be ineffective, impracticable or unsatisfactory, he = may apply=20 to the court for an order that the whole or any part of the business of = the fund=20 be wound up.

(2) Any creditor = of a=20 registered fund who is unable to obtain payment of his claim after = recourse to=20 the ordinary process of law may apply to the court for an order that the = whole=20 or any part of the business of the fund be wound up: Provided that a = creditor=20 shall not make application except by leave of the court, and the court = shall not=20 grant such leave unless the creditor has given security to an amount = specified=20 by the court for the payment of the costs of the application and of any=20 opposition thereto, and has established prima facie the desirability of = the=20 order for which he wishes to apply.

(3) The court may = make an=20 order as prayed in terms of subsection (1) or subsection (2), subject to = the=20 provisions contained in the following subsections.

(4) The = provisions of the=20 Companies Act, 1973 (Act No. 61 of 1973), shall apply mutatis = mutandis to=20 a winding-up under this section, in so far as the said provisions refer = to a=20 winding-up by the court in terms of the said Act, and in so far as the = said=20 provisions are applicable and not inconsistent with any provision of = this Act or=20 with any directions issued by the court under this section.

[Subs. (4) substituted by s. 16 = of Act=20 103/79]

(5) The court may = direct=20 that the aforementioned provisions of the Companies Act, 1973, may, for = the=20 purposes of the winding-up be suitably modified in any particular case = if the=20 court is satisfied that having regard to the circumstances of the fund = concerned=20 it would be impracticable or unnecessarily onerous to comply with the = said=20 provisions in every particular and that in spite of such modification = the=20 interests of the creditors of the fund will be sufficiently=20 safeguarded.

[Subs. (5) amended by s. 16 of = Act=20 103/79]

(6) In the = winding-up of=20 the whole or any part of the business of a fund, the value of the = interests of=20 the members or of the various groups of members of the fund, and the = value of=20 any benefits due by the fund to persons other than members, shall be = ascertained=20 in such manner as the court may direct.

(6A)In giving any order or = direction under=20 this section the court shall have regard to any recommendation which may = have=20 been made by the fund=92s valuator, if any, and accord full recognition = to the=20 rights and reasonable benefit expectations of the persons concerned and = to=20 additional benefits the payment of which by the fund has become an = established=20 practice.

[Subs. (6A) inserted by s. 26 of = Act=20 83/92]

(7) Without = prejudice to=20 the powers of the Master who has jurisdiction in respect of any = winding-up, the=20 liquidator appointed in terms of subsection (4) shall give the registrar = such=20 information as the latter may require from time to time and shall, = whenever he=20 intends to apply to the court for instructions, report accordingly to = the=20 registrar who shall be entitled to be heard personally or by a = representative at=20 any such application, and may himself make an application to the court = with=20 reference to the winding-up.

(8) If, where the = court has=20 ordered that the whole business of the fund be wound up, the registrar = is=20 satisfied that the winding-up of such a fund has been completed, he = shall cancel=20 the registration of the fund and thereupon the fund shall be deemed to = be=20 dissolved.

30. Special = provisions=20 relating to liquidation of funds

(1) In applying = the=20 provisions of the Companies Act, 1973 (Act No. 61 of 1973) in terms of = section=20 twenty-eight or twenty-nine=20 -

(a) the members = of a fund=20 shall be treated as deferred creditors, and their claims against the = fund in=20 their capacity as members shall not be settled until the debts of = ordinary=20 creditors have been paid.

(b) = =85=85=85.

[Para. (b) deleted by s. 25 of = Act=20 104/93]

[Subs. (1) amended by s. 17 of = Act 103/79]=20

(2) If a fund has = a share=20 capital, the liability of a shareholder in the case of liquidation under = the=20 aforementioned sections shall either be limited to the amount (if any) = unpaid on=20 any share held by him, or shall be unlimited, according as is provided = by the=20 rules of the fund.

(3) If a = registered fund=20 which has not been exempted from actuarial valuation in terms of section=20 2(3)(a) is liquidated in terms of section=20 28 or 29=20 after the date from which minimum individual reserves are payable on = cessation=20 of membership, and the fair value of the assets of the fund, less any = current=20 liabilities, is less than the sum of the minimum individual reserves = payable in=20 respect of the existing members and former members who may participate = in the=20 distribution of the assets (with appropriate adjustment for benefits = previously=20 paid in the case of former members) and the cost of annuity policies = which will=20 provide equivalent pensions for the existing pensioners and deferred = pensioners,=20 the shortfall shall represent a debt payable by the employer to the = fund:=20 Provided that, where more than one employer participates in the fund, = the=20 shortfall shall be distributed amongst such employers in a manner deemed = reasonable by the liquidator.

[Subs. (3) added by s. 5 of Act=20 39/2001]

CHAPTER = VA

CONSIDERATION AND ADJUDICATION OF=20 COMPLAINTS

30A. Submission = and=20 consideration of complaints

(1) = Notwithstanding the=20 rules of any fund, a complainant may lodge a written complaint with a = fund for=20 consideration by the board of the fund.

[Subs. (1) substituted by s. 19 = of Act=20 11/2007]

(2) A complaint = so lodged=20 shall be properly considered and replied to in writing by the fund or = the=20 employer who participates in a fund within 30 days after the receipt=20 thereof.

(3) If the = complainant is=20 not satisfied with the reply contemplated in subsection (2), or if the = fund or=20 the employer who participates in a fund fails to reply within 30 days = after the=20 receipt of the complaint the complainant may lodge the complaint with = the=20 Adjudicator.

(4) Subject to section=20 30I, the Adjudicator may on good cause shown by any affected party=20 -

(a) extend a = period=20 specified in subsection (2) or (3) before or after expiry of that = period;=20 or

(b) condone = non-compliance=20 with any time limit specified in subsection (2) or (3).

[Subs. (4) added by s. 19 of Act = 11/2007]

[S. 30A inserted by s. 3 of Act=20 22/96]

30B. Establishment = of Office=20 of Pension Funds Adjudicator

(1) There is = hereby=20 established an office which shall be known as the Office of the Pension = Funds=20 Adjudicator.

(2) The functions = of the=20 Office shall be performed by the Pension Funds Adjudicator.

[S. 30B inserted by s. 3 of Act=20 22/96]

30C. Appointment = of=20 Adjudicator

(1) The Minister = shall,=20 after consultation with the Financial Services Board, appoint = -

(a) a person to = the office=20 of Adjudicator;

(b) one or more = persons to=20 the office of Deputy Adjudicator; and

(2) No person = shall be=20 appointed as Adjudicator, Deputy Adjudicator or Acting Adjudicator = unless he or=20 she is qualified to be admitted to practise as an advocate under the Admission=20 of Advocates Act, 1964 (Act No. 74 of 1964), or as an attorney under = the Attorneys=20 Act 1979 (Act No. 53 of 1979), and -

(a) for an = uninterrupted=20 period of at least 10 years practised as an advocate or an attorney;=20 or

(b) for an = uninterrupted=20 period of at least 10 years was involved in the tuition of law and also=20 practised as an advocate or attorney for such period as renders him or = her=20 suitable for appointment as Adjudicator, Deputy Adjudicator or Acting=20 Adjudicator; or

(c) possesses = such other=20 experience as renders him or her suitable for appointment as = Adjudicator, Deputy=20 Adjudicator or Acting Adjudicator.

(3) The = Adjudicator and=20 Deputy Adjudicator shall be appointed by the Minister for a period of no = more=20 than three years and may be reappointed on expiry of his or her term of=20 office.

(4) The = Adjudicator and=20 Deputy Adjudicator may at any time resign as Adjudicator or Deputy = Adjudicator=20 by tendering his or her resignation in writing to the Minister: Provided = that=20 the resignation shall be addressed to the Minister at least three = calendar=20 months prior to the date on which the Adjudicator or Deputy Adjudicator = wishes=20 to vacate his or her office, unless the Minister allows a shorter=20 period.

(5) The Minister = may remove=20 the Adjudicator or Deputy Adjudicator from office on the grounds of=20 misbehaviour, incapacity or incompetence, after consultation with the = Financial=20 Services Board,

(6) (a) In the event = of the=20 resignation, removal or expiry of the term of office of the

Adjudicator and subject to subsection (1), the Minister may = appoint=20 an Acting Adjudicator to act as Adjudicator until a competent person is=20 appointed in terms of subsection (1).

(b) An Acting = Adjudicator=20 has all the powers and must perform all the duties of the=20 Adjudicator.

[S. 30C inserted by s. 3 of Act = 22/96 and=20 substituted by s. 20 of Act 11/2007]

30D. Main object of=20 Adjudicator

The main object=20 of the Adjudicator shall be to dispose of complaints lodged in terms of = section=20 30A(3) of this Act in a procedurally fair, economical and = expeditious=20 manner.

[S. 30D inserted by s. 3 of Act=20 22/96]

30E. Disposal of=20 complaints

(1) In order to = achieve his=20 or her main object, the Adjudicator -

(a) shall, = subject to=20 paragraph (b), investigate any complaint and may make the order which = any court=20 of law may make;

(b) may, if it is = expedient=20 and prior to investigating a complaint, require any complainant first to = approach an organization established for the purpose of resolving = disputes in=20 the pension funds industry or part thereof, and approved by the=20 registrar.

(2) Any complaint = dealt=20 with in terms of subsection (1) (b) shall be recorded by the Adjudicator = and=20 shall, for purposes of section=20 30H (3), be deemed to be a receipt of a complaint.

(3) If the = complaint, dealt=20 with in terms of subsection (1) (b), is not resolved, the complainant = may again=20 lodge the complaint with the Adjudicator, who shall deal with it in = terms of=20 subsection (1) (a).

[S. 30E inserted by s. 3 of Act=20 22/96]

30F. Opportunity = to=20 comment

When the=20 Adjudicator intends to conduct an investigation into a complaint he or = she shall=20 afford the fund or person against whom the allegations contained in the=20 complaint are made, the opportunity to comment on the = allegations.

[S. 30F inserted by s. 3 of Act=20 22/96]

30G. Parties to = complaint

The parties to a complaint shall be -

(a) the=20 complainant;

(b) the fund or = person=20 against whom the complaint is directed;

(c) any person = who has=20 applied to the Adjudicator to be made a party and who has a sufficient = interest=20 in the matter to be made a party to the complaint;

(d) any other = person whom=20 the Adjudicator believes has a sufficient interest in the matter to be = made a=20 party to the complaint.

[S. 30G inserted by s. 3 of Act=20 22/96]

30H. Jurisdiction = and=20 prescription

(1) The = Adjudicator shall,=20 subject to section=20 30I, investigate a complaint notwithstanding that the complaint = relates to a=20 matter which arose prior to the commencement of the Pension Funds = Amendment Act,=20 1995.

(2) The = Adjudicator shall=20 not investigate a complaint if, before the lodging of the complaint, = proceedings=20 have been instituted in any civil court in respect of a matter which = would=20 constitute the subject matter of the investigation.

(3) Receipt of a = complaint=20 by the Adjudicator shall interrupt any running of prescription in terms = of the=20 Prescription=20 Act, 1969 (Act No. 68 of 1969), or the rules of the fund in=20 question.

(4) The = Adjudicator shall=20 not have jurisdiction over complaints in connection with a scheme for = the=20 apportionment of surplus in terms of section=20 15B which relate to the decisions taken by the board or any = stakeholder in=20 the fund or any specialist tribunal convened in terms of section=20 15K.

[Subs. (4) added by s. 6 of Act=20 39/2001]

[S. 30H inserted by s. 3 of Act=20 22/96]

30I. Time limit for lodging of = complaints

(1) The = Adjudicator shall=20 not investigate a complaint if the act or omission to which it relates = occurred=20 more than three years before the date on which the complaint is received = by him=20 or her in writing.

(2) The = provisions of the=20 Prescription=20 Act, 1969 (Act No. 68 of 1969), relating to a debt apply in respect = of the=20 calculation of the three year period referred to in subsection = (1).

[Subs. (2) substituted by s. 21 = of Act=20 11/2007]

(3) = =85=85=85.

[Subs. (3) deleted by s. 21 of = Act=20 11/2007]

[S. 30I inserted by s. 3 of Act=20 22/96]

30J. Procedure for = conducting investigation

(1) The = Adjudicator may=20 follow any procedure which he or she considers appropriate in conducting = an=20 investigation, including procedures in an inquisitorial = manner.

(2) = Notwithstanding section=20 22 of the Financial Services Board Act, 1990 (Act 97/90), the = Adjudicator=20 may obtain copies of any document or correspondence contained in the = files of=20 the registrar.

(3) Sections=20 1, 2,=20 3,=20 4=20 and 6=20 of the Commissions Act, 1947 (Act No. 8 of 1947), shall apply mutatis = mutandis to the Adjudicator.

[S. 30J inserted by s. 3 of Act=20 22/96]

30K. Legal = representation

No party shall be entitled to legal representation at = proceedings=20 before the Adjudicator.

[S. 30K inserted by s. 3 of Act=20 22/96]

30L. Record of = proceedings

(1) The = Adjudicator shall=20 keep or cause to be kept, whether in writing or by mechanical or = electronic=20 means, a permanent record of the proceedings relating to the = adjudication of a=20 complaint and the evidence given.

(2) Any member of = the=20 public may obtain a readable copy of the record on payment of a fee = determined=20 by the Adjudicator.

(3) The registrar = may, for=20 purposes of the performance of his or her functions in terms of this or = any=20 other Act, rely on a copy of the record without the need of any further=20 proof.

[S. 30L inserted by s. 3 of Act=20 22/96]

30M. Statement by=20 Adjudicator regarding determination

After the=20 Adjudicator has completed an investigation, he or she shall send a = statement=20 containing his or her determination and the reasons therefor, signed by = him or=20 her, to all parties concerned as well as to the clerk or registrar of = the court=20 which would have had jurisdiction had the matter been heard by a=20 court.

[S. 30M inserted by s. 3 of Act=20 22/96]

30N. Interest on amount=20 awarded

Where a=20 determination consists of an obligation to pay an amount of money, the = debt=20 shall bear interest as from the date and at the rate determined by the=20 Adjudicator.

[S. 30N inserted by s. 3 of Act=20 22/96]

30O. = Enforceability of=20 determination

(1) Any = determination of=20 the Adjudicator shall be deemed to be a civil judgment of any court of = law had=20 the matter in question been heard by such court, and shall be so noted = by the=20 clerk or the registrar of the court, as the case may be.

(2) A writ or = warrant of=20 execution may be issued by the clerk or the registrar of the court in = question=20 and executed by the sheriff of such court after expiration of a period = of six=20 weeks after the date of the determination, on condition that no = application=20 contemplated in section=20 30P has been lodged.

[S. 30O inserted by s. 3 of Act=20 22/96]

30P. Access to = court

(1) Any party who = feels=20 aggrieved by a determination of the Adjudicator may, within six weeks = after the=20 date of the determination, apply to the division of the High Court which = has=20 jurisdiction, for relief, and shall at the same time give written notice = of his=20 or her intention so to apply to the other parties to the = complaint.

(2) The division = of the=20 High Court contemplated in subsection (1) may consider the merits of the = complaint made to the Adjudicator under section 30A(3) and on which the=20 Adjudicator=92s determination was based, and may make any order it deems = fit.

(3) Subsection = (2) shall=20 not affect the court=92s power to decide that sufficient evidence has = been adduced=20 on which a decision can be arrived at, and to order that no further = evidence=20 shall be adduced.

[S. 30P inserted by s. 3 of Act = 22/96 and=20 substituted by s. 22 of Act 11/2007]

30Q. Powers of = Adjudicator

The Adjudicator may with the concurrence of the Financial = Services=20 Board -

(a) hire, = purchase or=20 otherwise acquire such movable property as may be necessary for the = performance=20 of his or her functions and may let, sell or otherwise dispose of = property so=20 purchased or acquired;

(b) in order to = perform his=20 or her functions, enter into an agreement with any person for the = performance of=20 any specific act or function or the rendering of specific = services;

(d) employ = persons to=20 assist in the performance of his or her functions;

(e) obtain such=20 professional advice in the performance of his or her functions as may be = reasonably required;

(f) subject to = such=20 conditions as he or she may determine, delegate any of his or her = functions,=20 except the functions contemplated in section=20 30E, to an employee of his or her Office;

(g) in general do = anything=20 which is necessary or expedient for the achievement of his or her = objects and=20 the performance of his or her functions.

[S. 30Q inserted by s. 3 of Act=20 22/96]

30R. Funds of = Adjudicator

(1) The funds of = the=20 Adjudicator shall consist of -

(a) funds = provided by the=20 Financial Services Board on the grounds of a budget submitted to and = approved of=20 by the Financial Services Board;

(b) money = accruing to the=20 Adjudicator from any other source.

(2) The = Adjudicator shall=20 utilise the funds for the defrayal of expenses incurred in connection = with the=20 performance of his or her functions under this Act.

(3) The = Adjudicator shall=20 deposit all the money received by him or her in an account which he or = she shall=20 open with a banking institution registered in terms of the Ban= ks Act,=20 1990 (Act No. 94 of 1990).

(4) The = Adjudicator may=20 invest money deposited in terms of subsection (3) which is not required = for=20 immediate use.

(5) Any money = standing to=20 the credit of the Adjudicator in the account referred to in subsection = (3) at=20 the close of the financial year as well as money which has been invested = in=20 terms of subsection (4), shall be carried forward to the next financial=20 year.

(6) The financial = year of=20 the Adjudicator shall end on 31 March in each year.

[S. 30R inserted by s. 3 of Act=20 22/96]

30S. Remuneration = and terms=20 and conditions of employment of Adjudicator and = employees

(1) The = remuneration and=20 other terms and conditions of employment of -

(a) the = Adjudicator shall=20 be determined by the Financial Services Board;

(b) any employee = of the=20 Adjudicator shall be determined by the Adjudicator with the concurrence = of the=20 Financial Services Board.

(2) Any = remuneration of the=20 Adjudicator and his or her employees shall be paid out of the funds of = the=20 Adjudicator.

[S. 30S inserted by s. 3 of Act=20 22/96]

30T. =20 Accountability

(1) The = Adjudicator or one=20 of his or her employees designated by him or her, shall be charged with = the=20 accountability in respect of all moneys received and payments made by = the=20 Adjudicator.

(2) The = accounting officer=20 contemplated in subsection (1) shall -

(a) keep full and = correct=20 record of all money received or expended by, and of all assets, = liabilities and=20 financial transactions of, the Adjudicator; and

(b) as soon as is = practicable, but not later than three months, after the end of each = financial=20 year, prepare annual financial statements reflecting, with suitable = particulars,=20 money received and expenses incurred by the Adjudicator during, and his = or her=20 assets and liabilities at the end of, the financial year in = question.

(3) The records = and=20 financial statements referred to in subsection (2) shall be audited by = the=20 Auditor-General.

[S. 30T inserted by s. 3 of Act=20 22/96]

30U. Report of = Adjudicator

The Adjudicator=20 shall each year within six months after the end of his or her financial = year,=20 submit a report to the Minister on his or her affairs and functions = during the=20 financial year in question, including the audited financial=20 statements.

[S. 30U inserted by s. 3 of Act=20 22/96]

30V. Offences and=20 penalties

Any person who -

(a) insults the=20 Adjudicator;

(b) anticipates a = determination of the Adjudicator in any manner calculated to influence = the=20 determination;

(c) wilfully = interrupts any=20 proceedings conducted by the Adjudicator or misbehaves himself or = herself in any=20 manner in the place where the proceedings are being held;

(d) in connection = with a=20 complaint does anything which, if done before a court of law, would have = constituted contempt of court,

shall be guilty=20 of an offence and liable on conviction to a fine or to imprisonment for = a period=20 not exceeding three months.

[S. 30V inserted by s. 3 of Act=20 22/96]

30W. Limitation of = liability