1. Enforcing contribution payments
Hannine Drake

2. OVERVIEW Enforcing 13A payments: Advising funds Advising employers
Advising members
Key aspects: fund responsibility to enforce | personal liability |communication to members |

3. FUND OBLIGATIONS
S 7D(1)(d): “take all reasonable steps to ensure that contributions are paid timeously to fund in accordance with PFA”**
S 13A & Reg 33 fund obligations (Non-payment)

4. FUND REPORTING Monitor contributions received (R 33(2)-(4))
Contributions monitor to PO / Authorised Person
PO / AP to Board
Board to FSB**
Board to member: Reg 33(4)(a)**

5. PERSONAL LIABILITY
S13A(9): request employer to notify it of personal liability 🤑 🤑 ito s 13A(8) **
Information Circular 1/2016 (sample letter)
Can be raised as a dilatory plea
MWRF v Renosterberg Municipality (2 Nov 2017)
Unopposed 13A complaint
Meru motu finds that fund has not complied with s 7D(1)(d) (reasonable steps) because had not asked for the 13A(9) 🤑

6. MWRF v Renosterberg Local Municipality
“It does not appear that the complainant complied with the duty imposed on it by the provisions of section 13A(9) of the Act prior to approaching this Tribunal”

7. PERSONAL LIABILITY Responses:
“I was not the Municipal Manager at the time”
“I was the acting MM and had to rely on financial officers”
Options:
In letter of demand or Part A of application
In letter: require employer to inform fund if officials change

8. MFMA 77. Top management of municipalities.
(1)The top management of a municipality's administration consists of
(a) the accounting officer;
(b) the chief financial officer;
(c) all senior managers who are responsible for managing the respective votes of the municipality and to whom powers and duties for this purpose have been delegated in terms of section 79; and (d) any other senior officials designated by the accounting officer.
(2) The top management must assist the accounting officer in managing and coordinating the financial administration of the municipality.
MFMA

9. Mafube Local Municipality v SAMWU NPF (April 2017) ZAFSHC (Unreported)
Employer sought urgent interdict against sale in execution of movable properties to satisfy 13A judgment debt of R16 mil+
Also sought court sanctioned payment plan over 60 months as a supervisory order
Dismissed on basis that alternative remedy (provincial intervention) exists.

10. MAFUBE
Sheriff ‘snatches’ City Hall
More Mafube buildings written up

11. OTHER OBLIGATIONS Interest: S 13A(7) & Reg 33 Report to member**
Report to NDPP**
Litigate? (“All reasonable steps”)
Adjudicator
High Court

12. FSB POSITION Serious issue but statutory duty on funds not FSB
FSB receives detailed reporting, monitors what board is doing but not empowered to pursue employer
Funds are not reporting non-payment to members
SMS reporting insufficient; should be formal letter fully informing member of implications and options
Longstanding attempts to bring SAPS on board still ongoing
Possibility that FSB will publish SAPS/criminal reporting guidance for funds

13. IN SUMMARY Duty on board to enforce 13A Ensure:
Members are fully informed of instances of non-payment
Fund asks employer to identify responsible individuals for personal liability

14. THANK YOU