National Tertiary Retirement Fund v Registrar of Pension Funds

The National Tertiary Retirement Fund (appellant) was established on 1 December 1994 for higher educational institutions (Technikons). Members from the Associated Institutions Pension Fund (AIPF) and Temporary Employees Pension Fund (TEPF) transferred to the appellant, but only 60.8% of their actuarial reserves were funded, creating a "pure deficit" (eliminated in 2002). Rule 4.6 guaranteed these transferred members minimum retirement benefits: AIPF members received a pension of 1/50th of average final salary per year of pensionable service plus a gratuity of 7.25%; TEPF members received a pension of 2.75% of average final salary per year of pensionable service. A "guaranteed benefit deficit" arose because member shares fell short of guaranteed benefits due to poor investment performance and higher salary increases. When section 14A was introduced in 2001, requiring minimum benefits for members ceasing membership before retirement (calculated by reference to guaranteed benefits), a further "minimum benefit deficit" of approximately R69 million arose. Participating employers (except one) agreed to fund the guaranteed benefit deficit for retiring employees but could not fund the minimum benefit deficit. The appellant proposed amending its rules to make guaranteed benefits conditional on employer payment. The Registrar refused to approve and register the amendment, and this refusal was upheld by the Board of Appeal and the Pretoria High Court.

• Whether section 12(1)(b) of the Pension Funds Act confers a discretion on the Registrar to refuse registration of a rule amendment beyond the statutory requirements
• Whether the rule amendment reducing guaranteed benefits and making them conditional on employer funding is inconsistent with section 37A of the Act (which prohibits reduction of benefits)
• Whether the rule amendment is inconsistent with section 14A of the Act (which provides for minimum benefits on early withdrawal)
• Whether the rule amendment is financially sound
• Whether the Registrar was obliged to register the amendment if it was not inconsistent with the Act and was financially sound

The appeal was upheld with costs including costs of two counsel. The order of the High Court was replaced with an order reviewing and setting aside the Board of Appeal's decision, and substituting an order directing the Registrar to register amendment number 31 to the appellant's rules in terms of section 12 of the Pension Funds Act 24 of 1956. The Registrar was ordered to pay costs of the application including costs of two counsel.

Section 12(4) of the Pension Funds Act creates a mandatory obligation on the Registrar to register a rule amendment if (a) the Registrar finds it is not inconsistent with the Act, and (b) the Registrar is satisfied it is financially sound. The section does not confer a broad equitable discretion to refuse registration on other grounds. Section 37A's prohibition on reduction of benefits is qualified by "save to the extent permitted by this Act", and section 12(1) permits rule amendments, including amendments that reduce benefits. The context and associated wording of section 37A indicate it is concerned with reductions from external factors (such as attachment, pledge, hypothecation), not rule amendments. A rule amendment that reduces guaranteed retirement benefits and makes them conditional on employer funding does not conflict with section 37A. Section 14A, which provides for minimum benefits on early withdrawal calculated by reference to guaranteed benefits, does not prohibit reduction of the guaranteed pension itself, only sets the minimum calculation method. Where administrative action (the Board of Appeal's decision) is materially influenced by errors of law under section 6(2)(d) of PAJA, a court may in exceptional circumstances substitute the administrative action under section 8(1)(c)(ii) of PAJA rather than remitting the matter.

The court observed that there may well be circumstances where a reduction of benefits may be required in the interests of all members of a pension fund, and it would be highly unlikely that the legislature intended to prohibit rule amendments in these circumstances. The court also noted that if the legislature had intended to confer a broad equitable discretion on the Registrar under section 12(1)(b), it would have made this clear and provided guidance on factors to consider, as it did in section 14(1)(c) dealing with amalgamations (which requires the Registrar to be satisfied that the scheme "is reasonable and equitable and accords full recognition" to specified factors). The court remarked that serving no purpose would be achieved by referring the matter back to the Registrar given that more than four years had elapsed since the rule amendment was submitted, and registration should not be delayed further.

This case is significant for pension funds law in South Africa as it clarifies the limited scope of the Registrar's powers under section 12 of the Pension Funds Act. The Registrar has no broad discretion to refuse registration of rule amendments on policy grounds or equitable considerations beyond the two statutory requirements: consistency with the Act and financial soundness. The judgment establishes that section 37A, which protects pension benefits from reduction, does not prevent pension funds from amending their rules to reduce benefits, as such amendments are "permitted by this Act" under section 12. The case confirms that pension funds have flexibility to amend benefits to address financial sustainability concerns, including making benefits conditional on employer funding, provided the statutory requirements are met. This has important implications for the governance and financial management of pension funds facing deficits. The case also illustrates the application of PAJA's review grounds and the court's power to substitute administrative action in exceptional circumstances rather than remitting matters for reconsideration.