For most, the Office of the Pension Funds Adjudicator (OPFA) is a name that only becomes relevant once something goes terribly wrong – such as a missing pension payout or a benefit dispute that hits a wall. It’s not an office many think about until they need it. But for retirement fund boards and trustees, the OPFA is a familiar part of the landscape – although even they often find its processes confusing.
The OPFA was established under the Pension Funds Act to resolve complaints about retirement funds in a fair, quick, and cost-effective way. It also handles matters referred to it by the Ombud Council under the Financial Sector Regulation Act – particularly cases that fall outside the jurisdiction of the other ombuds.
At a recent Institute of Retirement Funds Africa webinar, Deputy Pension Funds Adjudicator Naheem Essop unpacked how the OPFA works – and how it differs from the courts.
“We don’t simply sit back and wait for the parties to make submissions,” he explained. “We proactively investigate a complaint, and that is really the big difference between the ombud and the courts.”
The OPFA functions inquisitorially, meaning it digs into the facts of a case instead of relying solely on the arguments presented. Once an investigation is complete, its determination is as binding as a court order – and enforceable by a warrant of execution.
But that power comes with limitations.
There are strict definitions of what counts as a “complaint” and who qualifies as a “complainant”. If a case doesn’t meet those definitions, the OPFA can’t act.
“We will normally then issue an out-of-jurisdiction letter saying that we are unable to investigate the matter,” said Essop.
Time is also a factor. OPFA is subject to prescription, or time barring.
“But we are different from the courts in that in the courts, prescription must be raised by one of the parties, whereas time barring is something that we must proactively consider when we receive a complaint,” Essop said.
Importantly, the OPFA cannot overturn or interfere with decisions made by the Financial Sector Conduct Authority.
“The FSCA does not fall within our jurisdiction,” he said. “So, if anyone is aggrieved by a decision of the FSCA relating to section 14 transfers, validity of rules, liquidations, etc., they must then approach the Financial Services Tribunal (FST).”
The OPFA also can’t intervene where litigation is already under way in civil court or where a surplus apportionment under section 15B of the PFA is at issue.
Why funds are still getting tripped up by the RTF process
Four years after it was introduced, the OPFA’s refer-to-fund (RTF) process continues to cause confusion among some retirement funds – despite being a requirement under the PFA.
At the heart of the issue is section 30A(2) of the Act, which obliges retirement funds to deal with complaints in writing and within 30 days – before they escalate to the Adjudicator. In cases where a complainant has approached the OPFA without first following this internal dispute resolution route, the OPFA steps in to facilitate the process.
Essop clarified how the RTF process is supposed to work – and why some funds are still asking, “Why are we being served twice?”
“When a complainant approaches OPFA and they have not followed that process of lodging the complaint internally, then OPFA facilitates that process on behalf of the complainant,” said Essop.
In practice, this means the fund first receives a letter from the OPFA noting the complaint and requesting that the fund tries to resolve it internally within 30 days. If the matter remains unresolved, the OPFA follows up – attaching the same complaint and initiating a formal investigation. That second letter is often where confusion sets in.
Essop noted that some funds mistakenly treat the first RTF letter as an opportunity to submit a formal response to the OPFA. Although they can do that, he cautioned against doing it as a mere formality.
“They can do that, but they must indicate in the letter, saying that this response may be used in the formal investigation. But again, there is a legal duty for you to properly consider the complaint, so you shouldn’t just be using it as a tick box, but you must genuinely attempt to try and resolve the complaint,” he said.
In the past financial year, 711 complaints (unaudited) were successfully resolved through the RTF process.
“But I’m sure there’s a lot more complaints that would have been resolved via different funds’ internal dispute resolution processes, if it was properly applied,” he said.
A frequent point of industry frustration stems from complaints that remain unresolved in the eyes of the complainant – even when the fund believes it has done everything required. For example, a fund may provide proof that a benefit was paid and explain how it was calculated, yet the complaint is still escalated to the OPFA without the complainant specifying why they’re unhappy.
“If the complainant is not satisfied, then we are obliged, by our legal mandate, to investigate the complaint formally, even though we may see that there might not be merit in the complaint. We do have to register it, and we do have to follow the procedures,” Essop said.
In other words, no detailed reason for dissatisfaction is required. A simple declaration of being unhappy is sufficient for the OPFA to proceed with a formal complaint investigation.
Investigation process
When the OPFA launches a formal investigation into a complaint, it doesn’t simply rubber-stamp paperwork. Its process is inquisitorial, not adversarial – and guided by fairness.
In terms of section 30F of the Act, a person against whom allegations contained in the complaint are made must be afforded the opportunity to comment on the allegations. This means that once a complaint is formally registered, the OPFA gives the fund – or any other party named in the complaint – a chance to respond before making any determination.
Previously, the standard timeline gave funds 30 days to respond to a formal complaint, followed by an additional 14 days. But that changed in 2022. Now funds have 20 days to respond. Thereafter, they have a further 10 days.
“That had an effect on funds being in a position to reply a lot quicker to formal complaints,” Essop said.
Time is not only a matter of efficiency – it’s a legal and practical necessity.
“We do rely a lot on the fund’s response when we are trying to resolve a complaint… and the fund does have a legal duty to respond,” said Essop. “We do urge funds to always try and comply with the timelines.”
Once a response is received, it is shared with the other party, typically the complainant. If the OPFA requires further submissions from either side, the default minimum response time is five days.
Complex cases, particularly those involving the allocation of death benefits, often require the OPFA to include more than just the complainant and the fund. Section 30G(d) of the Act allows the OPFA to “join any interested parties” to ensure procedural fairness.
“This is especially in your death benefit cases where there are multiple beneficiaries. We will have to join all those beneficiaries and give them an opportunity to respond,” said Essop.
He also stressed that the investigation isn’t always handled by a single adjudicator from start to finish.
“There might be different people dealing with your complaint, depending on the stage at which the investigation is,” he said. “And on our website, you can track the progress of your complaint by putting in the reference number, and you should be able to see at what stage your complaint is.”
What happens when the FST sends a case back to OPFA
When the FST reviews a matter originally decided by the OPFA, it has limited powers under current legislation. It can either dismiss the complaint entirely or set aside the OPFA’s decision and remit the matter for reconsideration. What it cannot do is make a new ruling to replace the OPFA’s original one.
“And I’m saying currently, because I believe there is something in the pipeline that might change that. But at the moment, that is what the legislation says,” said Essop.
When asked whether the OPFA is required to follow directives or recommendations from the FST – even if it believes they are incorrect – Essop clarified the legal framework.
He explained that the Act allows the FST to remit a matter to the OPFA for reconsideration.
“It does not specifically state that the FST is empowered to make directions,” he said. However, Essop said the OPFA takes any guidance or findings from the Tribunal seriously.
If the OPFA disagrees with a particular aspect of an FST directive, it has the option to challenge it through a review process.
“If we think something is incorrect, we will do that,” he said, although he noted that the OPFA has never exercised this option to date.
If the OPFA chooses not to follow a finding made by the FST, it will provide a detailed explanation in its determination. However, where a formal order has been issued and no review is lodged, the OPFA is legally bound to comply.
Once a matter is remitted by the FST, the OPFA effectively re-opens the case. The Office invites all parties to make any additional submissions within 20 days. These new submissions are shared with the other parties, who have 10 days to reply. If the OPFA needs further input to resolve the matter, it will call for those as well – with a minimum of five days allowed for a response.
Once this back-and-forth is complete, the OPFA issues a new determination. But it doesn’t end there.
The reconsidered determination is shared with the relevant parties and filed with the court. This ensures that any orders contained in the new ruling are enforceable.
Importantly, a reconsidered determination can still be challenged.
“If you are still aggrieved by a decision that we have made in a reconsidered determination, you still have that option,” said Essop, referring to the right to lodge another application with the FST.
During its past financial year, the OPFA received 87 applications for reconsideration. Of those, 27 matters were remitted for reconsideration.
When complaints are ‘frivolous’
What happens when a complaint is clearly frivolous? Is the OPFA still required to go through the full process of referring it to the fund for a response, or can it simply be dismissed?
Essop explained that, under current legislation, the OPFA must follow due process.
“Currently, in terms of the legislation, section 30F requires us to put the allegations to any person against whom the allegations are made,” he said.
However, Essop acknowledged that some complaints submitted to the OPFA are indeed frivolous. To address this, the Office is in discussions with the Ombud Council to develop rules that will allow it to summarily dismiss complaints that are frivolous, vexatious, or otherwise without merit.
