Transnet Pension Fund Amendment Act [No. 41 of 2000]
! ~_:--;m :-. .r:. . . . . . . . . . . . . . . . . . . . . ..’_ . . . . . . . .._ 1REPUBLIC OF SOIJTHAFXI-CA..:.-:::: ..:::::2
GOVERNMENT GAZETTIll . .
I
STAATSKOERANT
VAN DIE REI?UBLIEK VAN SUID-.AFRIKA
Registered at the Pmvt Ojice as a Newspaper ,.
As ‘n Nut{sb[ad by die Po~kantoor Geregis wet‘1
CAPE TOWN. 31 OCTOBER 2000 vol.. 424 No. ~21705
KAAr’S’Ti4D, 3 I OKTOBER 2000
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‘THE PF,I;SIDENCY I DiE PRESIDENSIE i
I
No. 1104. 3 I Octob~r ?000 ‘ No I 1O-J., . 1
31 0 1{.>bcr 2.000
GENER.4L EXPI,ANATORY NOTE:
[ I Words in bold type in squar< Iwach.c:< Indicate c)missi~}ns from existing snactnlents,
W’01-CJS underli]ied u’ith a solid lIIIe indicate insertions in existing enactments
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(English text .sig{led b> the Prc sid(jlt. ) (’4s,scllted to 27 tll[)lx’1” 2000. )
ACT To amend the Transnet Pension Funds Act, 1990, so as to insert a definition; to empower the making of rules on the terms and conditions under which members - may cede their rights and transfer assets commensurate with those rights from the Fund to the pension fund established by the employer; to provide for the guarantee of’ the financial obligations of the Second Fund by the employer; to empower the Second Fund to recover from the pensioner money due to Transmed; to deem the obligations of the employer and the State in respect of the new Fund and the Pension Fund to be obligations of the Transnet Pension Fund and the Transnet Second Defined Benefit Fund in proportions determined by the State Actuary; to rectify an error; to provide for the power of tbe employer to establish a pension fund; to provide for the establishment of the Transnet Second Defined Benefit Fund and to transfer pensioners from the Transnet Pension Fund to the Transnet Second Defined Benefit Fund; to provide for the Rules of the Transnet Second Defined Benefit Fund; and to provide for matters connected therewith.
BE IT ENACTED by the Pwlia[nent of’ the Republic of South Africa asfollows:-– Amendment of section 1 of Act 62 of 1990, as amended by section 1 of Act 52 of 1991
1. Section 1 of the Transnet Pension Funds Act, 1990 (hel-einafter referred to as the principal Act). is hereby amended by the insertion after the definition of “Rules” of the 5 iollowing definition:
“ ‘Second Fund’ mems the ‘f ’r~nsnet Second Defined Benefjt Fund established in terms of section 14 B(1).”.—.
Amendment of section 5 of Act 62 of 1990
2. Section 5 of the principal Act is i~ereby amended by the substitution for subsection 10 ( 1 ) of the following subsection:
“(1 ) The control and management of the Fund, admission to and termination of membership, the amount and nature of contributions by members and contributions and other payments by the employer, and the benefits due to pensioners and other beneficiaries, the terms and conditions under which members may elect to have 15_ — . . their rights ceded, and assets commensurate with such rizhts transferred from the Fund to a pension fund established by the Minister in terms of section 14A(2), and
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the manner in which the Rules may be amended, shall be governed by the Rules of the Fund.”.
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Amendment of section 6 of Act 62 o! 1990
3. Secticn 6 of the principal Ac( is h~’rcl~\ timendcd by the substitution for subsection (5) of [he follo\ving subwction:
“(S) The emplo) er shall guarantee the financial obliga[lons of the Funct and the Second Fun@.”.
.—
.Anlendment of section 11 of Act 62 of 1990
4. The following section is hereby substituted for section 11 of the principal Act:
“ RecoverJ- of amounts in respect of medical scheme
11. The Fund [is] and [he Second Fund are hereby empowered to recover money due by a pensioner~o Tlammed (the medical scheme t-eferred to in section 10(2) of the Legal Succession to the South African’ Transport Services Act. 1989) in terms of the Transmed Rules and to pay k’uch money to Transmed. ”.
Amendment of section 12 of Act 62 of 1990
5. The following section is hereby substituted for section 12 of the principal Act:
“Guarantee
12. The obligations of the Company and the State in respect of the New Fund and the Pension Fund in terms of section 3(2) and section 16 of the Legal Succession to the South African Transport Services Ac[, 1989, shall be deemed to be obligations towards the Fund and the Second Fund in such I?.EQQU@n!s determined bY @ state Actuary in consultation with the actuary appointed by the Fund and the actuary appointed by the Company.”.
Amendment of section 14 of Act 62 of 1990, as substituted by section 41 of Act 52 of 1991
6. Section 14 of the principal Act is hereby amended by the substitution in subsection (3) for paragraph (b) of the following paragraph:
“(b} any company formed in terms of section 32 of [this Act] the Legal Succession to the South African Transport Services Act. 1989,”.
Insertion of sections 14A and 14B in Act 62 of 1990
7. The following sections are hereby inserted after section 14
“Powers of Company to establish pension fund
of the principal Act:
14A. ( 1 ) In this section. mnsion fund” means the pension fund contemplated in subsection (2).
(2) NotlT’ilhsttinding the establishment of the Transnet Pension Fund in [erms of section 2(1). the Company ma), subject [o the approval of the Minister. acting with the concurrence of the Ministel of Finmce, by notice in the Ga:(’r[e establish a pension fund.
(3) The pen~ion fund shall be \ested with legal personality and shall be cap~ble of owning assets. incurring liabilities, suing or being sued in its own name and of doing all such things as may be necessary for or incidental to the exercise of its powers or [he perforlilance of its functions in terms of its particular rules.
(4) The control and mmlagenmnt of the pension fund, admission to and termination of membership, the amount and nature of contributions by
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The rLlltX of sl.lch pt’llSi(W 4’Ll!ld !“,la} k iLWCl”l&!d. shall k :Ovc?llld by (he ptirlicLilar rLlles 01 siich peli!i(jll iund.
(5 J The [rules of the pension lurid shall. subject to the approval by [he Minis:e[. ac:ing \~ith the concLlrrence of the Nlinis[cr of Finance. be published in [he G~i:ertc and \ha!l come into oper:~tion on the date of such publication.
(6) The rLiles of the pensi(on fund. as amended from time to time, sha!l bind the employer. members. pensioners and beneficiaries of sLICh pension fund.
(7) The pension fLind is deemed to be a pension fund as defined in pmasgapb (a) of the definition of ‘“pemion fLlnd” in section ] of the Income ‘rax Act, 1962 (Act No. 58 of 1962).
(8) All the provisions of this Act, except section 12, apply with the chances requirew the coni~xt to~ension fund. .,— —— —— .
‘r
Establishment of Second Fund
14B. ( 1 ) The Transnet Second Defined Benefit Fund is hereby estab- lished.
(2) Pensioner rnernbers of the Fund are hereby transferred from the Fund to the Second Fund.
(3) All the assets. liabilities. rights and obligations pertaining to the members referred to in subsection (2), as determined by the ‘State Actuary in consultation with an actuary appointed by the Fund and an actuary ~ppointed by the Colmpany. shall vest in and devolve upon the Second Fund without any formal transfer or cession with effect from the date of publication of such determination in the Ga:erte by the Minister.
(4) The Second Fund shall be vested with legal personality and shall be capable of suing or being sued in its own name md of doing all such things as may be necessary for or incidental to the exercise of its powers or the perfomlance of its functions in terms of its rules.
(5) The control and management of the Second Fund. the benefits due to J>ensioners and the beneficiaries shall be governed by the rules of the Transnet Second Defined Benefit Fund set out in the Schedule to this Act.
(6) The rules set out in the Schedule may be amended by the Minister actin ‘i[ipl.li:~ted in (he i)cnsion Flinds Act. 1956 (Act h’~1. 24 Oi’ 1950). and the lrLyula[ian:i prc~muig,tted t!wmLlnder in connec[ioil with tlw investment of mont>. in>t:~! o:” cwsc (o be i:ltes[ed the monies of’ the ~L!nd not immediately reqhi~ed for (’L!r~ent CXpeIIS~S, [O tk b~~f :{dvtint~ge Of d]~’ FLIiKl:
(/J) submit repo:-ts on !he ]n]e;l.tncn[s to the Board at such intervals :Lnd ill sLlch form as the Board may prescribe: and
(c) kee~ complete accoLlrrts. records and minutes of dl ticticms taken in the pertormailce of its functions and the exercise of its powers.
(2) The ln~.estment Co]l-imi[t(x may. inr the purpose of subrule ( 1), make me of dle services of portfoliL~ munager’s not emp!oyed by the FL)nd or an employer.
(3) Any security belonging to the Fund and held by the Investment Conwnittee or portfolio manager’s cm its behalf shall be kept in s~fe custody ill the sfifes or strotlgroorms at the rei[istered office of the Fund CY at any bank or building society approved by the Board or in the safe custody of the portfolio managers appointed in terms of subrule (2).
Manager and Principal Ofiicer .,
12. ( 1 ) The Managing Director shall appoint a member of the personnel of the employer to be the Mana~er (Prlnciptil Officer) of the Fund and may, at any stage. terminate such appointment.
(~) Shoold the Manager (prln~lpal Oficer] be absent from [he Republic for more than thirty days or be otherwise unable to fuliil his or her functions, the Managing Director shall appoint another person to act as Manager (Principal Officer) for the period of such absence or inability and shall advise the Board of the appointment. ‘
(3) The Manager (Principal Officer) shall have power— (a) to open and operate a banking account in the name of the Fund: (b) to receive and administer the money of the Fund required for current
expenses; (c) v ith the approv:Ll of the Board to borrow money from any source and to obtain
an overdraft fro]m a bank or building society; (d) to enter into and sign any contractor document on behalf of the Fund; (e) to institute or defend any legal proceedings by or against the Fund and to
instruct a legal representative with regard to such proceedings: (/) to arrange with the Managing Director for the appointment of suitable
members of the personnel of an employer to conduct the administration of the Fund:
(g) to execute decisions of the Investment Committee; and (/7) to execute decisions of the Executive Committee.
Appointment of Secretary
13. ( 1 ) The Managing Director shall appoint a member of the personnel of an employer as the Secretary of the Fund and may, at any stage, terminate any sLiCh appointment.
(2) The Manager (Principal Officer) may appoint any person from among those referred to in rule 12(3)(f) to perform the duties of the Secretary. while the Secretary is absent or otherwise not available to perform his or her duties.
Duties of Secretary
14. The Secretary shall--- ([1) keep till documents re!ating to the business of the Fund in safe custody, except
those which are prescribed by law to be kept by any other person: (b) submit to the Board all matters and documents received from an employer: (c) receive notices of matters to be considered by the Board: (d) convene all meetings of the Board. Executive Committee and Investment
Committee:
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(c) record the minutes of (he i)iocerdl:lg, of o{l meeting. of the Bcxud. Executl\e Committee and Investnlcnt Colrimittrc;
(f) circulate copies of all minotcs of the Board to all members of the Board: and (s) perform SWII ~tb~r duties ~S [he Bo:trd may ~rOITI time KI lime prescribe.
Confidentiality
15. The Chairperson. members of the Board and their alternates, and all persons engaged in the administration of the Fund. shall treat all matters and information that relate to the” Fund as confidential.
Indemnification and insurance
16. ( 1 ) The Fund shail indemnify the Cl]airperson, members oi’ the Board and thei~- alterna[es, and all persons engaged in the administl-ation of the F-und, against all costs and expenses incurred by reason of any act carried out in good faith in the performance of their duties in connection with the Fund. ,.
(2) The Board shall insure the Fund against losses due to dishonesty or fraud of persons engaged in the administration of the Fund, including members of the Board.
Administration expenses
17. The employer shall pay all expenses in connection with the administration of the Fund.
Accounts, audit and actuarial valuation
18. (1) (a) The Board shall keep such accounts, entries. registers and records which are essential for the proper functioning of the Fund.
(b) The accounts shall be prepared in the format prescribed by regulation in terms of the Pension Fund Act. 1956 (Act No. 24 of 1956), and shall be balanced at the end of each financial year and shall be audited by the auditor.
(c) The Board shall, at the end of the financial year, submit to the employer— (i) an annual report on all matters relating to the Fund; and
(ii) the financial statements pertaining to the Fund. (d) The auditor shall have access to all books, vouchers, accounts and documents of
the Fund. (e) When an audit report reflects that the Fund’s accounts are not managed on a sOLlnd
financial basis, the Board shall inform the Minister. (f) The financial year of the Fund shall be from 1 April up to and including 31 March
of the following year. (’)) (a) The Board shall cause to be kept records to enable the actuary to make an
actuarial valuation at any time. (b) The Fund shall be valued by the actuary at intervals of not more than three years.
in the discretion of the Minister, to determine whether the Fund is in a financial position to pay the benefits pro~ided for in these rules and the actuary shall submit the report of the valuation to the Minister, the Minister of Finance, the employer and the Board.
~lnsound financial position
19. ( I ) When an actuarial report referred to in rule 18(2)(b) Indicates that the Fund is not in a financially sound position. the Minister, with the concurrence of the Minister of Finance. may direct the Board to submit a schedule setting out arrangements designed to restore the fund to a financially sound positiol~ within three months from the date of receipt of such direction. together with a report thereon by the actuary.
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(2) When any audit or actuari~l rcpori ilidlca[cs a deficiency it) t!w Fund. the Board shall. within three months from the dzitc t~l’ >~lch rep(wt. submit a schelne to the Ministel- and the Minister of Finance setting oLlt tile wrangement:i which have been made or which it is intended to make to elinlili:i~c !Iw CJcticiency, to:e[her with a report thereon by [he actuary.
(3) If the Minister and the Minis[er of’ Finance are sa[istied that the tirrangement~ referred to in subrule ( 1 ) or (2) should suflice to accomplish [he objects of’ this rule, dle Minister shall approve the scheme.
(4) The Minister, if not satisfied with such arrangements, shall, in concLmence with the Minister of Finance. request the Board to make such amendments to the scheme. or to submit a new scheme. and the Board shall, within a period prescribed by the Minister. which is not less than 30 days frmn the date of the request. furnish the Minister and the Minister of Finance with a report on such mmmdments or such new scheme and a report by the actuary, and the provisions of subrule (3) shall apply to any such anlended schenle or new scheme which the Board may submit.
(5) The Board shall carry out the terms of any scheme approved by the Minister under this rule: Provided that-— .
(u) the Minister may. with the concurrence of the Minister of Finance, permit the Board to amend such scheme from time to time;
(b) if any information submitted to the Minister during the currency of such scheme indicates, in the opinion of the Minister, that the scheme is unlikely to accomplish the objects of this rule, such approval of the scheme may bc withdrawn, and the Board shall, within three months thereafter, prepare a further scheme to which the provisions of this rule shall apply with (he changes required by the context; and .,.,
(c) if, in the opinion of the Minister of Finance, the financial condition of the Fund is no longer unsound, the former shall inform the Manager to that effect and, on receipt of such communication, the obligations of the Fund in respect of that scheme shall terminate.
(6) If the Minister, in concurrence with the Minister of Finance, is of the opinion that the Fund is in such an unsound financial condition that any scheme contemplated in this rule would be ineffective, impracticable or unsatisfactory, the Minister may—
(a) apply to the court for an order directing that the provisions of these rules relating to the appointment, powers, remuneration (if any) and removal from office of the person managing the business of the Fund, or relating to such other matter as he or she may regard appropriate, be altered in a manner to be specified in such application, or directing that the whole or any part of the business of the Fund be wound up; or
(b) call on a guarantee to be furnished by the employer to place the Fund in a financially sound condition on terms specified by the Minister.
Appeals
20. (1) If a person is dissatisfied with any decision of the Manager. such person shall have a right of appeal to the Executive Committee.
(2) If a person is dissatisfied with a decision of the Executive Committee. including a decision on appeal in terms of subrule ( 1), such person shall have a right of appeal to the Board.
(3) The decision of the Board on any such appeal shall be final and binding on the parties.
Disposition of pension benefits on death of pensioner
21. (1) Any benefit payable in terms of the rules of the Fund in respect of a deceased pensioner shall be dealt with in the following manner, subject LO the provisions of sections 9, 10 and 1 I of the Divorce Act, 1979 (Act No. 70 of 1979), and shall not form part of the assets in the estate of such a pensioner:
(a) If the Fund within 12 months of the death of a pensioner becomes aware of or traces a dependant or dependan:s of the pensioner, the benefit shall be paid to such dependant or dependatits or, in such proportions as may be deemed equitable by the Fund, to such dependants.
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(b) It the Fund doe~ not becx~me :iu At () f o r I. un:ible [0 tfaL’: any ciqmndan[ of the pensioner \i ithin 12 moli[h:> oi’tile clea[h o{ the penfic’ner :md the pens} onet- has nominated 10 the Funfd in vriti]~: ~1 nclminec Yvbo is not ;.I depencl.mt of’ the pensioner to receive su{tl benefit or such i~ortioli ot’ (!w Ixnetit as is specified by the pensioner in \\riting to the Fund, the Fund mfiy in its discretion aLlthorise such payment: Pro\ided that where; the aggregate amoLInl of the debts in the estate of tht pensioner exceeds the aggregate amount of the assets in the estate. so much of the benefit as is equal to the difference belween such ;l~gregate amount of debts and such aggregate anlount of assets shall be paid into the estate wld the balance of such benefit or the balance of such portion of the benefit as specified by the pensioner in writing to the Fund shall be paid to the nominee at the discretion of the Fund.
(c) If a pensioner l~as a dependant and the pensioner has also nominated in writing a nominee to the Fund to receive the benefits m such portion of the benefits as is specified by the pensioner in writing to the Fund, the Fund shall within 12 months of the death of such pensioner pay at the discretion of the Fund the benefit or such portion thereof to sLIch dependant or nominee in such proportions as the Board may deem equitable.
(d) If the Fund does not become aware of or is unable to trace any dependant of the pensioner within 12 months of the death of the pensioner and if the pensioner has not designated a nominee or if the pensioner has designated a nominee to recei\’e a portion of the benefit as specified by the pensioner in writing to the Fund and approved of by the Fund. the benefit or the remaining portion of the benefit after payment to the nominee, shall be paid into the estate of the pensioner or, if no inventory in respect of the pensioner has been received by the Master of the Hi8h Court in terms of section 9 of the Administration of Estates i4ct, 1965 (Act No. 66 of 1965). into the Guardians Fund.
(2) For the purpose of this rule a payment by the Fund to a trustee contemplated in the Trust Property Control Act, 1988 (Act No. 57 of 1988), for the benefit of a dependant or nominee contemplated in this rule shall be deerned to be a payment to such dependant or nominee.
Pension benefits
22. The pension equals the pension payable and calculated in terms of the Transnet Pension Fund Rules and all the conditions that apply in terms of the Transnet Pension Fund Rules shall apply to this pension.
Death of pensioner
23. ( 1 ) Upon the death of a person who is in receipt of a pension in terms of these rules there shall be paid to the dependant or dependants a benefit, as determined by the FLmd and provided for in this subrule in relation to the pallicular class of dependant.
(2) If the dependant is the deceased pensioner’s spouse there shall be paid a pension calculated as follows:
({/) If the deceased pensioner retired on attaining the age limit, it shall be calculated at 707c of the pension which was payable to the deceased pensioner on the date of death:
(b) if the deceased pensioner retired before attaining the retirement age, it shall be calculated by nlultiplying 707c of the pension which was payable at the date of death, by [he factor which is arrived at by dividin: the sum total of pensionable service and the number of years service that the member could still have rendered from the date of death to the date of statLltory retirement. by the pensionable sel-vice.
(c) Where the LL>ceawl pcnsione]- l~i:i)li,~ al’(cl- tile date 01 ttti~:il]~i:t :ilew si~lil be paid a pension e:.~ic:]i:lte{i :,:; f[)i({)t~s: (i) W’here the age d]li”cr?nce betv. een tile pensioner md [he spoIJsc is not
mom than five years. rhc benclit determined in subrule ?(~:) or ?(b) shun be payubk.
(ii ) w h e r e t!le age dif~crcmce is inore t h a n five y e a r s . t h e benefit :is detertilined in subrule (2)((]) or (2)/b) is adjusted by multiplying the benefit with a factor that is arrived at by dividing the age of the spouse by that of the pensloriel provided that the pension shall not exceed that a< determined in subrule (2)(a) or (2)(/1).
(3) lf the dependant in subrule ( 1 ) is someone other than the spouse of the deceased pensioner, a pension shall be paid to the defendants at [he discretion of the Fund and on a basis determined by the Fund. but shall not exceed 807c of the pension calculated in terms of subrLl]c (z)(a) or (~)(b).
(4) Upon the death of a pensioner to whom a pension was paid upon dismissal or on the ground of impossibility of performance or supmvening impossibility of performance after the completion of 20 years service, [here shall be paid to the de,pendant or defendants as determined by the Fund a pension referred to in subrule (2j(a) or subrule (3). as the case may be.
(5) In relation to the death of a pensioner contemplated in subrule (2)(tI) who was a female pensioner, no benefit is paid to her spouse or dependants if—
(a) such member retired before 1 January 1991; and (b) such member elected on or before 1 January 1991 to exclude her spouse or
dependants from receiving any benefit upon her death. .,
Annual increase
24. The pension received by a pensioner shall be increased by 2%, compounded annually, for each completed year in respect of which the pension has been or is received: Provided that in the case of a widow or widower or dependant pensioner, the 2% enhancement of the pension shall be calculated from the date on which the pension first became payable to the original pensioner.
Payment to person other than beneficiary
25. The Manager may. if he or she is satisfied, after having considered a report by two medical practitioners, that any beneficiary to whom any amount is payable under these rules is, by reason of a mental condition, unable to manage his or her own affairs. order—
(a) that such amount be paid to some other person upon such conditions as the Manager may determine as to its administration for the benefit of the beneficiary: or
(b) that a portion of such amount be paid to the beneficiary, and that the balance be paid, in the order of prefe]-ence laid down in rule 23. to the persons mentioned in that paragraph who are dependent upon tile heneticiary, or to some other person upon such conditions as the iJ4tinager may determine as to its administration. in accordance with the said order of preference, for the benefit of any sLlch dependent person. or that the balance be partly so paid to any such dependent person and partly to such other person upon the said conditions: Provided that no such order shall be made in respect of a beneficiary for the adrninistrtitiorr of whose estate a clfrotor boni.s has been appointed and that any such order shall lapse if a cumror bcmi.s for the ~dministration of the estate of the beneficiary concerned is appointed.
Payment to estate
26. When the amounts referred to in r[lle 23 have been paid to any person mentioned therein other than the person lawfully administering the estate of a deceased pensioner. the employer and the Fund shall be exempt from any further claim under any of those paragraphs. and no such amount sha!i be deemed to form part of the estate of the deceased.
Provision in case of pensioner who k, re-employed
27. If a member of the Fund hti> I-Icel) granted ?t pension under these rules or appropriate provisions that premicd il):st L UICS ?,nd IS thereafter re-mnployeci. such member ~hall continue to receive tile pensicll being paid.
Payment of pensions
28. ( 1 j The Mana:er shall arrange for the monthly amount of a pension to be credited to a pensioner’s account at a bank to be normnated by the pensioner.
(2)(L~) Where exceptional circumstances prevail, the Manager may arran,ge for the payment of pensions by means of pension warrants, the encashrnent of which shall be subject to such condition as the Manager m~~ prescribe and which shall be reflected on the warrants.
(b) The payment of a pension by means of warrants shall be made monthly and not earlier than a date to be determined by the Manager, which dale shall be reflected on the warrants. ,,
(3) In the case of a pension payable to the Master of the High Court for deposi[’in the Guardian’s Fund on behalf of a pensioner, the Manager may waive compliance with all or any of the requirements prescribed in subrule (2).