The Office of the Pension Funds Adjudicator (OPFA) has published draft guidelines setting out how the Pension Funds Adjudicator would exercise powers to require testimony and the production of material during complaint investigations.
The Adjudicator’s power to issue summonses derives from section 30J(3) of the Pension Funds Act (PFA), which applies specified provisions of the Commissions Act to the Adjudicator. The proposed framework would spell out when a summons may be issued, how it may be served, how proceedings would be conducted, and how matters such as privilege, confidentiality, postponements, and non-compliance would be handled.
Click here to download the draft guidelines.
Section 30J(1) of the PFA allows the Adjudicator to follow any procedure considered appropriate when conducting an investigation, including an inquisitorial procedure. Section 30J(3) applies sections 1, 2, 3, 4, and 6 of the Commissions Act to the Adjudicator. These provisions include powers to summon witnesses, administer an oath or affirmation, examine witnesses, and require the production of books, documents, and objects.
Why the guidelines are being proposed
The draft guidelines follow concerns about non-co-operation with OPFA investigations. According to Lize de la Harpe, senior legal adviser at Sanlam, the Adjudicator, Lebogang Mogashoa, told the Pension Lawyers Association earlier this year that arrear retirement fund contributions had reached “crisis” levels and accounted for 51% of complaints received by the OPFA.
At the conference, Mogashoa also referred to a complaint in which a fund failed to respond to the complainant’s queries about a delayed benefit payment and ignored requests from the OPFA for information. The fund’s principal officer and chairperson also failed to respond.
“This prompted the Adjudicator to look at why exactly a fund would be so brazen, and he concluded that funds appear to be under the impression that there would be no legal consequences for them ignoring the member and/or the Adjudicator,” De la Harpe says.
His office subsequently obtained a senior counsel opinion on whether the OPFA could issue summonses and subpoenas under the Commissions Act against unco-operative funds and administrators. According to De la Harpe, the opinion concluded that it could.
The draft guidelines are intended to clarify the procedural arrangements for exercising these powers. The OPFA says they address the issuing and service of summonses, the obligations of summoned persons, the conduct of proceedings, the treatment of privileged and confidential information, and the consequences of non-compliance.
Two draft summons forms are included in Schedule A. One would require a person to appear and give evidence and, where applicable, produce material, while the other would require the production of material without an appearance.
When a summons could be issued
Under the draft guidelines, a summons could be issued where the Adjudicator reasonably considers it necessary for the effective investigation and determination of a complaint.
The circumstances listed include a failure to respond adequately to a complaint, a failure to provide requested information or material, or repeated requests for extensions without adequate justification where, despite having had a reasonable opportunity to respond, the person has failed to provide the required information or evidence or has otherwise delayed or impeded the investigation.
The listed circumstances are not exhaustive and would not limit the Adjudicator’s powers under section 30J(3).
A summons would, as far as reasonably practicable, identify the complaint, the person summoned, whether the person is required to appear or produce material, the date, time, and place or virtual platform for an appearance, the material required, and the purpose of the summons. It would also notify the person of the consequences of failing to comply.
How proceedings would work
Proceedings would be investigative and inquisitorial rather than ordinary adversarial hearings.
A person giving oral evidence would take an oath or make an affirmation and could be questioned by the Adjudicator or an authorised person. Where the Adjudicator considers it necessary for procedural fairness, a party to the complaint or a person whose interests may be materially affected by the evidence could be given an opportunity to put questions to the summoned person.
The draft also deals with preliminary issues such as privilege, self-incrimination, confidentiality, service, legal representation, and postponements. A person appearing before the Adjudicator would not have an automatic right to legal representation but could apply for permission to be represented.
An application for a postponement would not, by itself, suspend the obligation to comply with a summons unless the Adjudicator directs otherwise. The unavailability of a legal representative would also not, by itself, constitute sufficient grounds for postponement.
Privilege and confidential information
The draft also deals with legal professional privilege, confidentiality, commercial sensitivity, and the protection of personal information.
A person claiming privilege would have to identify the material concerned and provide sufficient information for the Adjudicator to assess the claim without disclosing its privileged content.
Claims of confidentiality, commercial sensitivity, or protection of personal information would not, on their own, relieve a person of the obligation to comply, although the Adjudicator could impose safeguards such as redaction, restricted access, or anonymisation.
Non-compliance may constitute an offence
Failure to comply with a summons without sufficient cause may constitute an offence under section 6 of the Commissions Act. The draft lists failures including not attending, not remaining in attendance, refusing to take an oath or make an affirmation, failing to answer a lawful question fully and satisfactorily, failing to produce required material, and giving false evidence after taking an oath or making an affirmation.
The draft also states that a person who insults the Adjudicator, seeks to improperly influence the proceedings, interrupts or obstructs them, or engages in conduct that would constitute contempt of court may be guilty of an offence under section 30V of the PFA.
Where a person fails to comply with a summons, the Adjudicator could continue the investigation on the information available if this would be fair, refer the matter to the appropriate authority for investigation or prosecution, seek relief from a competent court, or take another lawful step.
The draft guidelines were published on 12 August 2026, and interested parties have until 1 September 2026 to submit written comments using the template provided by the OPFA.
