“We are open for business.”
That was the message from the Pension Funds Adjudicator, Advocate Lebogang Mogashoa (pictured), as he outlined a tougher approach to employers, directors, and other responsible persons who fail to deal with retirement fund complaints.
Mogashoa told the Institute of Retirement Funds Africa’s annual conference on 7 September 2026 that the Office of the Pension Funds Adjudicator (OPFA) intends to make greater use of the powers already available to it, including joining responsible persons to complaints and pursuing orders against them.
The issue is particularly acute in section 13A complaints involving unpaid employer contributions. Mogashoa said 51% of all matters finalised by the OPFA in the past financial year related to arrear contributions, while the Financial Sector Conduct Authority has reported R8.3 billion in outstanding contributions.
The OPFA introduced a dedicated section 13A complaint form in August and is encouraging funds to lodge complaints on behalf of members. The form requires funds to set out the period of non-compliance, outstanding contributions and schedules, interest claimed, the parties involved, and the relief sought. It also asks funds to identify any responsible person against whom relief is sought.
Read: OPFA introduces dedicated form for section 13A complaints
Qualifying section 13A complaints can be prioritised under the OPFA’s Expedited Complaints Policy rather than necessarily following the ordinary first-in, first-out approach.
Mogashoa said the office has already held employers and responsible persons liable in section 13A matters. He referred to a Pension Funds for Public Sector complaint involving an employer and a responsible person, where an order was made against both for arrear contributions of about R30 million.
“We do have this authority. We are open for business, and if you lodge a complaint, we will investigate it and will make an order,” he said.
He urged funds to specifically request orders against responsible persons where appropriate.
Responsible persons can be joined
Mogashoa also pointed to section 30G(d) of the Pension Funds Act, which allows the Adjudicator to join any other person whom the Adjudicator believes has a sufficient interest in a complaint.
The OPFA intends to use that provision more proactively.
Even where a complainant has not asked for an order against a responsible person, Mogashoa said the OPFA believes section 30G allows it to cite that person as a respondent and consider making an order against them.
“That’s the direction of travel,” he said. “We want to cite these responsible persons as respondents and make orders against them.”
The approach could apply to complaints brought by retirement funds, as well as individual members.
Mogashoa said the OPFA is still considering the investigative implications of the approach, but where responsible persons are involved in unpaid contributions, the OPFA expects funds to use the remedies available to them.
Summons for those who ignore the OPFA
The OPFA is also preparing to use its inquisitorial powers more aggressively.
Section 30J allows the Adjudicator to follow any procedure considered appropriate when conducting an investigation, including an inquisitorial process. Section 30J(3) applies specified provisions of the Commissions Act to PFA proceedings, including powers to summon witnesses and require the production of books, documents, and other material.
Earlier this year, the PFA said it had obtained Senior Counsel’s opinion that these provisions allow it to issue summonses or subpoenas against unco-operative funds and administrators.
The draft guidelines published in August set out when and how those powers could be used. 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 failing to respond adequately, failing to provide requested information or material, or repeatedly seeking extensions without adequate justification while delaying or impeding an investigation.
Read: OPFA proposes framework for exercising summons powers
The draft framework includes two summons forms: one requiring a person to appear and give evidence and, where applicable, produce material; and another requiring the production of material without an appearance.
The consultation closed on 1 September.
Mogashoa said the power could be particularly useful in section 13A matters, where employers or responsible persons sometimes simply do not respond.
“Perhaps it’s time that some of them tasted the consequences for ignoring processes before they adjudicate,” he said. “We hope that this is going to encourage a shift in behaviour.”
He also addressed parties that ignore correspondence and fail to comply with determinations.
“If we keep sending letters, you don’t respond, you make a ruling. You don’t bother to respond to it or to implement it because you’ve not seen how serious it is. Then perhaps we need to explore a more serious approach to how we deal with it.”
The Adjudicator says summonses could ultimately be directed at principal officers and board chairpersons. Failure to comply without sufficient cause may constitute an offence under the Commissions Act. The draft guidelines also provide for further steps where a person does not comply, including continuing the investigation on the information available, referring the matter to an appropriate authority, or seeking relief from a competent court.
The infrastructure to support the process is being put in place.
Less waiting, more intervention
The tougher approach forms part of a wider overhaul of how the OPFA handles complaints.
Mogashoa said the office cannot remain a largely reactive alternative dispute resolution body. It is working on data analytics, digitisation, automation, artificial intelligence, and business engineering to improve efficiency and member outcomes.
The OPFA has set a target of resolving complaints within six months, although Mogashoa acknowledged that even six months is too long.
The Ombud Council’s new Rules for the PFA, adopted in March, give the Adjudicator significant procedural discretion and formally provide for mechanisms including summary dismissals and default determinations where parties fail to respond or co-operate.
Read: Ombud Council issues new rules for Pension Funds Adjudicator
The office is also changing its decision-writing approach, introducing dedicated templates for section 13A matters and making greater use of summary dismissal determinations.
Mogashoa said the OPFA’s business-engineering work had identified weaknesses in its triage and settlement processes. The aim is to resolve more complaints before they reach a formal determination.
He said industry also needs to change its approach. Too often, parties file a response and then wait for the matter to be enrolled for determination. Comparable institutions overseas resolve as many as 70% of matters through alternative dispute resolution.
The new Ombud Council rules also provide for conciliation and settlement, although conciliation is encouraged rather than mandatory.
A simpler approach to section 37D
Mogashoa also discussed a recent determination involving the withholding of a retirement benefit under section 37D of the Pension Funds Act, saying some funds are still struggling with the issue.
He said the value of Blomquist v MacSteel Group Provident Plan was not that it introduced a new legal principle, but that it brought together existing approaches and set out a simplified framework for trustees dealing with section 37D withholdings.
In Blomquist, the complainant was an executive responsible for the fluid control business unit, while his wife was the procurement and inventory manager in the same unit.
He was charged and dismissed for unauthorised disclosure of information relating to a section 197 process, insubordination, and insolence.
Following his dismissal, two suppliers terminated their exclusive distribution agreements with the company and subsequently contracted with a company established by the complainant.
The employer sought to withhold his benefit over, among other things, his wife’s decision not to conduct stock counts as required by company policy. The employer attributed the resulting losses to the complainant because he headed the business unit and was married to the employee who made the decision.
The employer also alleged that the complainant had used information about MacSteel’s suppliers to interfere with supplier relationships for the benefit of his new company.
Mogashoa said the determination reduces the trustee’s task to two questions: is there a legally valid reason for withholding the benefit, and was the decision procedurally fair?
The first concerns substantive lawfulness – whether the reason for withholding is a ground recognised by section 37D. The second concerns procedural lawfulness – whether due process was followed, including giving the member an opportunity to be heard. Natural justice and the competing interests of the employer and member must also be considered.
In the Blomquist matter, the OPFA found that the stock-count decision had been made by the complainant’s wife, not the complainant. There was therefore no conduct, theft, or misconduct on his part on that ground, and no basis for withholding the benefit.
The alleged unlawful competition could potentially provide a section 37D ground, but the civil proceedings instituted by the employer concerned the stock-count issue, not the alleged competition.
The withholding was found to be both substantively and procedurally unlawful and the decision was set aside.
