The Financial Services Tribunal (FST) has held that an employer’s liquidation does not deprive the Pension Funds Adjudicator of jurisdiction to consider a complaint about arrear retirement fund contributions.
The Transport Sector Retirement Fund complained to the Adjudicator that the employer, Jack Transport (Pty) Ltd, failed to pay arrear contributions allegedly due in terms of section 13A of the Pension Funds Act (PFA). The fund also raised the alleged personal liability of individuals described as being responsible for the employer’s financial management.
In a determination issued on 17 November 2025, the Adjudicator declined to entertain the complaint because it lacked jurisdiction. The stated basis (as summarised by the Tribunal) included that the employer was in voluntary liquidation, that the Adjudicator was precluded from dealing with arrear contribution complaints where the employer was no longer in business, and that any order compelling payment would be futile.
The fund then brought a reconsideration application.
In its decision dated 30 March 2026, the Tribunal described the central issue as whether the PFA was correct to conclude it lacked jurisdiction. However, it broke the enquiry into four considerations:
- The scope of the PFA’s jurisdiction under section 30A of the PFA.
- The proper interpretation and effect of section 13A, particularly section 13A(8).
- Whether the employer’s liquidation or operational status affects jurisdiction.
- Whether alleged futility can constitute a jurisdictional bar.
The Tribunal’s reasoning treated jurisdiction as conceptually distinct from the substantive personal-liability issue that may arise under section 13A(8).
Jurisdiction
The Tribunal emphasised that jurisdiction is determined by statute. It stated that the Adjudicator is required to determine complaints that fall within section 30A, and a complaint concerning the non-payment of retirement fund contributions falls within that jurisdiction.
The Tribunal held that the fact an employer is in liquidation or no longer trading does not remove the PFA’s jurisdiction, and it criticised the Adjudicator’s approach as conflating jurisdiction with the practicalities of enforcement. The Tribunal supported this conclusion by referring to prior Tribunal authority that rejected “business status” as a jurisdictional requirement under the statutory scheme.
On the “futility” rationale advanced in the determination, the Tribunal held that alleged futility cannot justify a refusal to exercise jurisdiction, because jurisdiction concerns the power to decide the dispute rather than the ease of enforcing an order.
These findings disposed of the Adjudicator’s threshold basis for refusing to entertain the complaint. They did not, by themselves, decide who must ultimately pay; they established that the PFA must consider the complaint rather than reject it on jurisdictional grounds.
Why personal liability had to be considered
The Tribunal described section 13A as imposing peremptory obligations on employers to pay contributions timeously and in full. It described section 13A(8) as providing that persons regularly involved in the management of the employer’s overall financial affairs are personally liable for compliance with section 13A and for payment of contributions. It further noted that section 13A(9) supplements this regime by providing mechanisms for identifying such responsible persons.
Crucially, the Tribunal characterised section 13A(8) liability as a “direct statutory personal liability” that “exists independently” and is “not derivative” of the employer’s own liability.
The Tribunal recorded that the second and third respondents were identified as responsible persons for section 13A purposes. It held that the Adjudicator failed to consider whether statutory personal liability arose – an omission the Tribunal regarded as a material misdirection.
The Tribunal referred to the High Court’s judgment in Engineering Industries Pension Fund and Another v Installair (Pty) Ltd and Others (16 January 2025) as confirming that section 13A(8) creates a direct statutory basis for personal liability and may enable funds to hold directors liable without piercing the corporate veil, even where the employer is in liquidation.
Read: Directors found liable for unpaid retirement contributions
The Tribunal found that the Adjudicator materially erred by treating liquidation as determinative of jurisdiction and by failing to consider the effect of section 13A(8). It upheld the reconsideration application, set aside the Adjudicator’s determination, and remitted the matter for reconsideration.
The Tribunal did not make a final finding that any individual is personally liable for the unpaid contributions.
