Abstract

The Office of the Pension Funds Adjudicator (OPFA) plays a vital role in the adjudication of disputes that arise in the private pension fund sector by investigating a dispute and issuing a determination. The Pension Funds Act (PFA) deems these determinations orders of a court of law having jurisdiction as if the matter had been adjudicated by such court. The effect of the legislative provision provides those in possession of a determination the opportunity to enforce it through contempt of court proceedings in the face of non-compliance. In Mantsho v Managing Director of the Municipal Employee Pension Fund and Others the court concluded, however, that as a specialist tribunal the OPFA could not grant orders of court as a court of law would because it was not a public judicial officer. As a result, the functionality of the OPFA in our legal system has been rendered uncertain. In order to maintain the credibility of the OPFA these determinations should be treated as orders of a court of law. The court’s strict reading of the PFA and application of the differentiation between courts of law and specialist tribunals incorrectly narrows the interpretation of the legal fiction created by the PFA. This note will explore the underpinnings of this concept and reflect on judgments where it has been appropriately utilised. In addition, it will analyse the court’s judgment in order to illustrate why the failure to utilise the concept of a legal fiction properly in relation to the determinations of the OPFA was a missed opportunity. Further, this note will argue that the PFA in its current form does not adequately provide for the enforcement of determinations and therefore should be amended to introduce a process of certification whereby determinations of this nature may, on behalf of an aggrieved party, be certified by the OPFA to facilitate enforcement through contempt of court proceedings.