PER: 2010 Volume 13 No 2http://hdl.handle.net/10394/40322024-03-28T18:20:32Z2024-03-28T18:20:32ZWhat should the board of management of a persion fund consider when dealing with death claims involving surviving cohabitants?Mhango, Mtendeweka OwenDyani, Ntombizozukohttp://hdl.handle.net/10394/40832019-06-24T09:17:05Z2010-01-01T00:00:00ZWhat should the board of management of a persion fund consider when dealing with death claims involving surviving cohabitants?
Mhango, Mtendeweka Owen; Dyani, Ntombizozuko
This note argues that the Adjudicator’s determination Hlathi should be welcomed by the
pension funds industry because it clarifies the uncertain legal position that emerged in
the wake of the judgment in Volks. It comments on the requirements in and implications
of Hlathi for the pension funds industry and pension beneficiaries, and criticises the
Adjudicator's determination as failing to expressly incorporate the emotional and
intimate or sexual bond requirement in the new factual dependency test. It argues that
while Hlathi appears to have reverted to the legal position that prevailed prior to Van der
Merwe, the new test does not expressly incorporate the relevant requirement that a
relationship of mutual dependence involves an emotional and intimate or sexual bond.
As a result, the note is critical of this omission because it creates a potentially new
uncertainty in the law, and calls on the current Adjudicator to clarify this matter.
Notes
2010-01-01T00:00:00ZHow could the pension funds adjudicator get so wrong? A critique of Smith versus Eskom Pensiion and Provident fundDyani, NtombizozukoMhango, Mtendeweka Owenhttp://hdl.handle.net/10394/40822019-06-24T09:16:41Z2010-01-01T00:00:00ZHow could the pension funds adjudicator get so wrong? A critique of Smith versus Eskom Pensiion and Provident fund
Dyani, Ntombizozuko; Mhango, Mtendeweka Owen
In this case note the judgment in the Smith case is criticized for being inconsistent with
the landmark ruling in Volks. It is argued that the Adjudicator ought to have remanded
the matter in Smith to the Board and ought to have ordered it to re-examine its
discretion with a focus on a set of factors. Some of the negative effects of Smith on the
pension funds industry are also outlined. While the authors express their understanding
that the Adjudicator's decision in Smith was made with the rights of women in mind, they
believe that her reasoning was wrong. She may have arrived at the same decision on
different reasoning. In order to prevent the negative effects of Smith on the pension
funds industry, it is recommended that the Adjudicator, when given an opportunity,
should overrule the precedent set in Smith. Failure to do so would create the risk of the
inconsistent application of the term "spouse" under South African law, or at the very
least in relation to acts of Parliament administered by the National Treasury, which may
potentially violate the equality provisions of the Constitution.
Notes
2010-01-01T00:00:00ZNational credit regulator versus Nedbank Ltd and the practice of debt counselling in South AfricaDe Villiers, Dawid Whttp://hdl.handle.net/10394/40812019-06-24T09:16:16Z2010-01-01T00:00:00ZNational credit regulator versus Nedbank Ltd and the practice of debt counselling in South Africa
De Villiers, Dawid W
The National Credit Regulator approached the then Transvaal Provincial Division of
the High Court in 2008 by way of a notice of motion. In this application the Regulator
prayed in terms of section 16(1)(b) of the National Credit Act 34 of 2005 (the "NCA")
for the proper interpretation of mainly sections 86 and 87 of the same Act. Due to
uncertainty and confusion the Regulator lodged an application to obtain clarity on
some of the difficulties that debt counsellors experience in practice. The matter was
heard in the High Court (TPD) on 02/03/2009 and judgment was handed down by Du
Plessis J on 21/08/2009. This article discusses the fifteen prayers and the impact of the orders granted by the
Court under three logical headings, namely:
those that deal with the NCA and the Magistrate’s Court;
Order 1 (on section 86(7)(c)), order 2 (an obligation to conduct a hearing), order 3
(the judicial role of the Magistrate’s Court) and order 4 (the application procedure of
the Magistrate’s Court) defined the interaction between the NCA and the
Magistrate’s Court Act (the “MCA”) very clearly. Since there is no sui generis
procedure provided for in the NCA, it is submitted that the Court’s approach is
correct. However, the end result is that the over-indebted consumer is not supported
to the degree the NCA envisages. For example: a rule 55 procedure of the MCA can
be cumbersome and costly, while the NCA envisaged a fast and relatively
inexpensive process.
those that deal with the role of the debt counsellor in debt restructuring; Order 5 (costs), order 6 (statutory function) and order 8 (the unique role of the debt
counsellor), granted under this heading, are important. They define the role of the
debt counsellor to be different from the run-of-the-mill applicant in terms of rule 55.
He/she is even protected against some cost orders due to a statutory function.
Because of this special function a question arises: should this difference in treatment
not be even greater than custom presently permits or proposes? Since this function
brings great responsibility and much paper work, should it not affect the fees that a
debt counsellor may charge? those that deal with the court procedures.
Orders 7, 9, 10 and 11 in this section are welcomed, namely those that deal with the
service of documents, the geographical jurisdiction and monetary limit of the court,
reckless credit and the in duplum rule. However, the Court preferred to stay on the
safe side with respect to emoluments attachments orders and the application of
section 86(2) to section 129(1). The lack of direction on the question when formal
debt enforcement in fact begins, is regrettable.
However, the declarator is a milestone in the history of the NCA. The orders impact
significantly on the practice of debt review and will continue to shape the credit
industry. Despite some disappointments it can be concluded that the declarator on
the whole adds value to the practice of debt counselling in South Africa. It is now for
the industry, the NCR, the legislators and scholars to take matters further.
2010-01-01T00:00:00ZTemporary employment service (Labour Brokers) in South Africa and NamibiaVan Eck, B P Stefanhttp://hdl.handle.net/10394/40802019-06-24T09:16:15Z2010-01-01T00:00:00ZTemporary employment service (Labour Brokers) in South Africa and Namibia
Van Eck, B P Stefan
South Africa currently allows labour broking although this area of commerce is
problematic. The trade union movement, government and organised business are
presently debating the future regulation of this industry. Namibia has experimented
with, and failed, to place a legislative ban on labour broking. The Supreme Court of
Appeal of Namibia considered International Labour Organisation conventions and
provisions of their Constitution before concluding that labour broking should be
regulated but not prohibited. In this article it is argued that South African policy
makers can gain valuable insights from the Namibian experience. It is submitted that
it would be appropriate for Parliament to take cognisance of international and foreign
principles and to accept amendments that would provide for stricter regulation for
labour broking, rather than placing an outright ban on this economic activity.
Keywords: Africa
2010-01-01T00:00:00Z