Background

Following the death of a fund member, a R560,160 death benefit became payable. Beneficiaries included the customary spouse, life partner, major children, and one minor child. The fund allocated 28% to the customary spouse (the complainant), 30% to the minor child, and 28% to the life partner, with the remaining 14% split among the major children. The complainant challenged the inclusion of the life partner and the validity of the beneficiary nomination form. The complainant thereafter sought access to the investigation report.

The fund stated that it was unable to inform the dependants about its investigations based on, inter alia:

• Confidentiality: Rule 8.3 of the Fund’s Promotion of Access to Information Act (PAIA) manual, which is in line with section 11 of POPIA, prohibits sharing of personal information to third parties unless the interested party requests it through the PAIA request form, which is available on the fund’s website.
• Efficiency: Informing other possible dependents of the investigations could lead to intimidation, bribery or coercion.

The matter came before the Adjudicator. Initially, the fund also refused access to the Adjudicator, raising concerns about providing supporting documents related to a resolution passed by the board, citing the need to protect beneficiaries’ information.

Adjudicator findings

The Adjudicator found that a public body defined in POPIA is permitted to process personal information while exercising its powers, duties and functions in accordance with the Act . The Adjudicator concluded that:

• It falls within the meaning of “tribunal” as provided in sections 12(2)(d)(iii) and 18(4)(c)(iii) of POPIA. These subsections allow the Adjudicator to collect personal information from sources other than the data subject when necessary for the conduct of proceedings that have been commenced or are reasonably contemplated. In these circumstances, notifying the data subject about the information required is unnecessary. Therefore, the fund was obliged to provide the requested information without obtaining consent from the beneficiaries.
• The Adjudicator also found that in fulfilling its duties in terms of section 37C of the Pension Funds Act 24 of 1956 (PFA), the board must conduct thorough investigations and gather all relevant evidence from beneficiaries.
• In adjudicating disputes relating to death benefits, the Adjudicator’s role is to assess whether the board acted rationally, reasonably and in accordance with the law.
• The board bears the onus of demonstrating to the Adjudicator that it has conducted a proper investigation in accordance with section 37C by providing the Adjudicator with the investigation report and supporting documentation, so that the Adjudicator can ascertain whether the fund has acted in accordance with the PFA. Therefore, the Adjudicator is entitled to the information that was before the fund when it made its decision.

The Adjudicator also noted that the Financial Services Tribunal had previously remarked that the Adjudicator should insist on investigation reports to ensure sufficient information is available to confirm the fund’s reasoning behind an allocation (see Semenya and Others v Old Mutual Superfund Pension Fund and Others, FST, PFA 31/2024).

Takeaways for retirement funds

Retirement funds cannot invoke privacy legislation to restrict oversight by the Adjudicator.

This determination underscores the growing scrutiny on governance and decision making processes within retirement funds. Boards must ensure:

• Documented, evidence based investigations.
• Proactive dependency assessments are conducted with corroborated evidence.
• Transparent decision making is consistent with section 37C of the PFA.
• Clear audit trails of all investigative steps are maintained.
• Appropriate evaluation of dependency, age, financial need, nomination forms and deceased’s wishes.
• Nomination forms are always considered, even where dependency diverges.
• Little to no reliance on POPIA or PAIA to limit oversight by the Adjudicator.