rior to 1996, the duties of retirement fund trustees were regulated primarily by the common law. However, an attempt to codify these duties was made with the promulgation of the Pension Funds Amendment Act of 1996, which crystallized some of the principles governing the manner in which pension funds are managed. One significant change is that a fund must have a board of management (now commonly known as the ‘board of trustees’). Half of the board, or 50% thereof, must consist of persons who have been elected by the members of the fund. Should the members not exercise their right to appoint any members to the board, the employer (in a fund which is attached to employment*) will, by default, appoint all the members of the board. The Pension Funds Act 24 of 1956 (‘the Act’) does not prescribe exactly how the board must be constituted, but it does set out the right to have member elected trustees mentioned above, and requires that there must be at least four trustees. Further it prescribes which matters related to boards must be contained in the rules of the fund. These matters are, amongst others, the constitution of the board, the election procedure to be followed when electing member representatives to the board, the appointment and terms of office of members, procedures at meetings, voting rights of members, quorums at meetings, the breaking of deadlocks and powers of the board (Swanepoel 2013: 103 – 107). However, once the board of trustees is in place, they are responsible for performing certain duties in a certain manner. This article is a broad overview of the duties that face the trustees of retirement funds, because a detailed examination of the duties would constitute a considerable body of information and would be inappropriate for the purposes of this article.
The duties of the trustees have been codified in section 7C to 7D of the Pension Funds Act. These sections were added in by the 1996 amendment to the Act. The other source of these duties is the common law, which had been developed further in court cases about trustees in the years preceding the 1996 amendment. The common law duties were expounded in the Mouton Report of 1992, which was a committee of investigation into a suitable retirement provision system for South Africa. Both sets of laws are discussed below.
In terms of section 7C of the Act:
“(1) The object of a board shall be to direct, control and oversee the operations of a fund in accordance with the applicable laws and the rules of the fund.
(2) In pursuing its object the board shall –
(a) take all reasonable steps to ensure that the interests of members in terms of the rules of the fund and the provisions of this Act are protected at all times, especially in the event of an amalgamation or transfer of any business contemplated in section 14, splitting of a fund, termination or reduction of contributions to a fund by an employer, increase of contributions of members and withdrawal of an employer who participates in a fund;
(b) act with due care, diligence and good faith;
(c) avoid conflicts of interest;
(d) act with impartiality in respect of all members and beneficiaries.”
In terms of section 7D the further duties of a board shall be to:
“(a) ensure that proper registers, books and records of the operations of the fund are kept, inclusive of proper minutes of all resolutions passed by the board;
(b) ensure that proper control systems are employed by or on behalf of the board;
(c) ensure that adequate and appropriate information is communicated to the members of the fund informing them of their rights, benefits and duties in terms of the rules of the fund;
(d) take all reasonable steps to ensure that contributions are paid timeously to the fund in accordance with this Act;
(e) obtain expert advice on matters where board members may lack sufficient expertise;
(f) ensure that the rules and the operation and administration of the fund.
The duties that trustees are expected to fulfill are to be found throughout the various sections of the Pension Funds Act and some of the more significant ones will be discussed below. Generally, the duties may be divided into three generic groups. They are the duty of the trustees to carry certain knowledge of retirement funds and trusteeship, also called the ‘duty to know’, the duty to administer retirement funds in a manner that is beyond reproach, and the duty to act with care, diligence and in good faith.(Downie 2012:92). These categories are all represented within sections 7C and 7D of the Pension Funds Act.
This is a fairly broad duty, and is alluded to in section 7C (1) of the Act. This is an onerous task which is placed on the shoulders of the trustees.
In terms of section 7C of the Act:
“(1) The object of a board shall be to direct, control and oversee the operations of a fund in accordance with the applicable laws and the rules of the fund.”
This duty is to comply with the provisions of the Pension Funds Act when developing the rules of the fund, and in the operation and administration of the fund. Besides the rules of the fund, there are a number of documents with which the trustees of funds must be conversant. These include, but are not limited to: the rules of the fund; policy contracts with insurers, where the fund is the policyholder of a policy on the life of a member; the Financial Institutions (Protections of Funds) Act; the Income Tax Act; the Trust Property Control Act; the financial and actuarial documentation denoting the status of the fund; the basic principles of the common law of trusts; the principles of the common law of meetings; the principles of insurance law, because insurance policies may make up the body of the assets of a fund; the Divorce Act and Maintenance Act, which are relevant especially with regard to section 37D of the Act; and any contracts concluded between the trustees (on behalf of the fund), members and third parties, and these parties and the employer in employer-sponsored pension funds (Downie 2012: 90 - 91).
Section 7D (e) of the Act provides that trustees are obliged to obtain expert advice on matters where they may lack sufficient expertise, or rather, in instances where the trustees ‘do not know’. Therefore, trustees are usually obliged to employ experts in the areas in which they are not conversant and they often appoint pension lawyers, actuaries and other industry experts to assist them in making decisions regarding the wellbeing of members and to avoid personal liability. This obligation is linked to the duty to act with diligence, care and in good faith, which is discussed below. Having taken the necessary advice, trustees themselves are still tasked with the onerous job of selecting the most suitable route for the members’ investments. (Swanepoel 2013: 113)
The duty to know is echoed in section 7D (f) of the Act, which proclaims that it is the duty of the board of trustees to ensure that the rules and the operation and the administration of the fund comply with this Act, the Financial Institutions (Protection of Funds) Act, 2001 and all other applicable laws. This is a huge, complicated and potentially exhausting duty, if performed in the manner envisaged by the legislature. It is, also, probably the most important duty because it makes the trustees responsible for the entire operation of the fund, as well as the administration even if the administration is performed by an insurance company or other third party which is, technically, not an arm of the fund. This duty also confers on trustees the responsibility to ensure the legality of the fund rules, meaning that fund rules must comply with legislation and directives issued by the Financial Services Board. It is, therefore, incumbent upon a retirement fund trustee to understand all legislation which relates to retirement funds and also to review the fund rules regularly as well as the practices of the board and the procedures that it follows in order to ensure that it complies with legislation. It is also their responsibility to bring non-compliance by the fund to the attention of the other board members and to effect any adjustments or amendments necessary so as to make the fund compliant. It must be remembered that the rights bestowed upon individuals in terms of the Bill of Rights of South Africa may be enforced by members of funds, even if such right is not conferred upon members in terms of the rules of that fund. For this reason, trustees of pension funds should be conversant with the duties imposed on them by the Bill of Rights and the rights of the individual which the Constitution and Bill of Rights have granted to fund members in their capacities as individuals. The Adjudicator is aware of individual rights bestowed upon members by the Constitution as well, and it has awarded damages to individuals who have suffered damages as a result of unfair or unreasonable actions of the fund, perpetrated through the board of trustees (Swanepoel 2013: 114 - 115).
In summary the duty to know entails the contents of a number of pieces of legislation, aspects of the common law and legislation as mentioned above, and the constitution. The trustees also have a duty to know what is expected of them and have an obligation to familiarise themselves with all of the documentation mentioned above, the most important being the fund rules and the regulations to the Pension Funds Act. This is a task of massive proportions.
The law of trusts plays an essential role in the responsibilities that trustees have to observe. Most importantly, trustees should act strictly in accordance with the rules of the fund, failing which they can be held personally responsible for damages suffered as a result of their actions outside those powers prescribed by the rules (Swanepoel 2013: 114).
The powers of trustees are vested in them jointly as a body. Therefore, all decisions taken by trustees have to be taken at properly constituted meetings.
Trustees are not permitted to abdicate their responsibilities as trustees. This means that trustees have to accept personal responsibility for decisions of the fund, including investment decisions even if they have employed an investment adviser to guide them, as there would be a duty on those trustees to research advisers based on reputation and advice history and apply their minds to the appointment and advice of such adviser.
The duty to know is extended even further by the provisions of section 7D(f) of the Act, which states that the board of trustees are to ‘ensure that the rules and the operation and administration of the Fund comply with the Act, the Financial Institutions (Protection of Funds) Act 28 of 2001 and all other applicable laws.’
The wording of this section is such that it casts the net of obligations of trustees very wide. When broken up, it means that the trustees must ensure that the fund rules comply with the provisions of the Act. This means that trustees must have knowledge of the requirements of the Act not only when they become trustees, but with each change in legislation that requires an amendment of the rules. Therefore, during the substance of (the life of) the fund, the trustees are obliged to stay abreast of development in legislation and amend the fund rules if the change in legislation calls for it. Operation of the fund probably refers to the internal mechanisms of the fund such as the constitution of the board of trustees, while administration of the fund refers to the physical work done by the people who keep the cogs of the organisation turning on a daily basis through, for example, the processing of forms and documents at joining the fund or the claims stage. Therefore, this wide, catch-all clause makes trustees responsible for the entire operation of the fund, as well as the administration thereof, despite the fact that many funds outsource the administration to insurance companies, or other third parties.
The last phrase in section 7D (f) refers to ‘all other applicable laws’. The most significant laws with which trustees should be conversant are the Pension Funds Act, 24 of 1956 and/or its amendments, the Financial Institutions (Protection of Funds) Act, 28 of 2001, the Inspection of Financial Institutions Act, 38 of 1984, the Income Tax Act, 58 of 1962 as amended and the Revenue Laws Amendment Act, 35 of 2007. Further acts which affect the duties of retirement fund trustees are the Divorce Amendment Act of 1989, the Maintenance Act, 99 of 1998, the Long term Insurance Act, 52 of 1998, the Financial Services Board Act, 97 of 1990, the Labour Relations Act, 66 of 1995 and the Financial Services Laws General Amendment Act, 22 of 2008. In addition to this there is a body of circulars, known as “PF circulars” which set out further guidelines for fund management. (Downie 2012: 90). With regard to trustees, PF130 has proven to be the most important one thus far and this will be discussed in more detail below.
In terms of section 7D the further duties of a board shall be to:
“(a) ensure that proper registers, books and records of the operations of the fund are kept, inclusive of proper minutes of all resolutions passed by the board;
(b) ensure that proper control systems are employed by or on behalf of the board;”
The board is obliged to keep a register of the trustees at its registered office. This register must contain all the personal details of the trustees. Any amendment to the register and a minute book for the recording of all resolutions should be kept. Membership details and details pertaining to the fund’s postal address, auditor, benefit administrator, investment administrator (these are, most likely, outsourced functions) and valuator must be kept at the registered office as well. The duty on the trustees of a retirement fund to ensure that proper control systems are employed by the board was enacted in order to protect the fund against theft and fraud (Swanepoel, 2013: 112). While it is impossible to protect all funds from fraud and theft, the fund is obliged to introduce control measures which would deter would-be criminals from perpetrating fraud or, which would flag any activity that could be interpreted as potentially fraudulent so that the fund may take action timeously to avoid such incidents from occurring.
The rights, benefits and duties of members must be communicated to them by the trustees (section 7D (c)). The trustees must ensure that the information is adequate and appropriate and that the members understand their rights as conferred upon them by the fund rules. The trustees should comply with member disclosure requirements as set out in PF86 and PF90, both of which can be viewed on the website of the Financial Services Board.
The Act goes on to state that trustees must take all reasonable steps to ensure that contributions are paid timeously to the fund in accordance with this Act (section 7D (d)).This duty is emphasized by regulation 33 of the Act where the duty to take appropriate action where contributions have not been duly paid by the employer is placed squarely on the shoulders of the board of trustees.
In terms of section 7C(2), in pursuing its objective to direct, control and oversee the operation of a retirement fund, the board of trustees must ensure compliance with the following:
(a) Take all reasonable steps to ensure that the interests of members are protected at all times:
(i) Especially in the event of an amalgamation or transfer of any business contemplated in section 14
The industry previously had some difficulty with the interpretation of the phrase “reasonable benefit expectations of the members transferring in terms of the rules of the fund concerned” set out in section 14 of the Act. However, the Adjudicator regarded fairness to be of cardinal importance when pronouncing upon its interpretation of section 14. This was found to be the principle that should take precedence in the view of the Adjudicator, even after the transfer of business had been certified by the Registrar. In Van Wezel v Gencor [2001] 2 BPLR 1668 (PFA), because of delays in the section 14 process and stock-market movements, the amount actually transferred was much less than anticipated. The Adjudicator felt that there may perhaps be a higher duty imposed by section 7C (2) (a) in situations of transfer. The sentiments of the Adjudicator were that, pending transfer, trustees are obliged to obtain advice regarding investments, apply their minds and make wise decisions regarding member’s money, taking the advice of experts when required, while constantly ensuring that member’s investments are protected, even from market forces if changes are forecast (Swanepoel, 2013: 109).
(ii) In the event of splitting of a fund
When a fund is split, there will always be a transfer of business. This transfer will also always be dealt with in terms of section 14 (Swanepoel, 2013: 109). Prudence should prevail amongst the trustees when dealing with a fund split and potential changes in member’s investments.
(iii) In the event of termination or reduction of contributions to a fund by an employer
In employer-sponsored pension funds, the rules often allow for participating employers to terminate the fund or to require a reduction in its contractual contribution to the fund with effect from a future date. When an employer chooses to withdraw its contributions to a fund, there is very little trustees can do about it and the employer is usually able to prevail, resulting in an amendment to the fund rules where necessary. Trustees are obliged to notify members in accordance with PF 86 and the trustees may find themselves at cross purposes with the employer. Employee-members can then take action in terms of the Labour Relations Act, which will not be examined, here (Swanepoel 2013).
Anton Swanepoel (2013) writes that, in terms of section 13A (4) of the Pension Funds Act, the contributions to a fund cannot be reduced retrospectively to a date before the date on which the trustees resolved to amend the rules accordingly (2013).
(iv) In the event of increase of contributions of members
The Rules of a fund may provide for the increase in contributions as a result of increases in the cost of risk insurance and administration costs. PF86 dictates that members should be given two months’ notice of an increase in contributions (Swanepoel 2013: 110).
(v) In the event of withdrawal of an employer who participates in a fund
The withdrawal of a participating employer from a fund, in which more than one employer participates, will constitute a partial liquidation, in terms of section 28 of the Pension Funds Act. As a result, those assets of the fund attributable to the members connected to the participating employer who is withdrawing, will be subject to the liquidation procedures, with which trustees must be acquainted.
The provisions of section 14 may however be applicable (instead of section 28) if the withdrawing group and their benefits are transferred to another fund in which their employer participates. In such a case, no payment may be made to a member (Swanepoel 2013:110).
The duty to act with care is stated expressly in section 7C (2) (b) of the Act. It reads as follows:
“(2) In pursuing its object the board shall –
(b) act with due care, diligence and good faith;
(c) avoid conflicts of interest;
(d) act with impartiality in respect of all members and beneficiaries.”
The trustees have a fiduciary duty to take greater care in managing the assets of the fund than they would in managing their own assets or money. This is greater than a mere duty to act in good faith and encompasses the obligation to exercise proper care and diligence when making decisions.
The common law fiduciary duties of trustees were summarized as follows in the Mouton Committee report:
Trustees are expected to act with due care: The standard of care required is greater than the standard that the reasonable person would exercise, the report states. The duty is to act with diligence, which is defined as ‘carefully’ and ‘thoroughly’. The report re-iterates the need for trustees to be acquainted with ‘all relevant legal aspects pertaining to the position as [sic] trustee.’
A common law requirement arising from generally accepted protocol at meetings is that each meeting of trustees should follow a carefully worked out agenda which will reinforce the discipline required to ensure the above standard of care when matters relevant to the fund’s administration and management are being considered.
The Mouton Report also sets out a principle that was eventually codified under section 7D(c ) of the Act, by stating that the trustees must keep members fully acquainted with matters relevant to their status such as changes to benefit structures, legislation and their rights and obligations thereto.
The pre-cursor to section 7C (2)(b) also makes an appearance in the report, where it states (at paragraph (b) page 438) that it is a duty of the trustees of retirement funds to act in good faith. It must be noted that there are no degrees of good faith. A breach of good faith no matter how minor, means that the trustee’s action is mala fides or in bad faith. One can only act in good faith or with mala fides. There is no in-between.
A fairly obvious duty, which, it seems, has its roots in the English common law of trusts, is that trustees are to hold assets for the benefit of the fund and its members. Only members and their beneficiaries benefit from the fund’s assets. Trustees are to ensure that beneficiaries are rightfully entitled to the benefit they receive. Trustees may not have any personal interest or potential personal gain in or from dealing with the trust property. The constitutional right of the member of the fund, and the beneficiaries, to just administrative action must also be foremost in the minds of trustees (Swanepoel 2013:119).
Trustees must avoid situations which place them in a compromising positions (section 7C (2)(c ) of the Act) and give rise to a conflict of interest. These usually extend to decisions relating to money and investments of the fund which would affect the trustees’ own pension fund or personal financial transactions with the fund. Trustees are expected to be impartial when fulfilling the role of trustee and no person or persons should be unduly favoured above another person or persons. Thus a trustee may not make any profit during his term of administration, but s/he may be remunerated if the rules permit it and, in particular, s/he may not benefit herself/himself as a member (because some trustees are elected from the body of members) at the expense of other beneficiaries and members. The common law requires a trustee to account for, and to pay to the fund, any profit that the trustee may have derived in his/her capacity as a trustee of the fund.
The Financial Institutions (Protection of Funds) Act, 2001 also touches on this subject. In terms of section 3 of this Act, trustees who actively take part in the decision to buy and sell shares in companies in which they have a financial interest, have a duty to disclose any potentially conflicting interests that they may have. A popular practice for trustees in such a position is to disclose their personal share holdings for the consideration of the other trustees from time to time, in order to disclose their interests. In the event of personal account trading by employees of financial institutions, PF Circular 106 of the Registrar of Pension Funds requires certain internal control procedures to be applied.
Lastly, section 7C (2) (d) of the Act requires trustees to be impartial in respect of all members and beneficiaries. The common law fiduciary duties were summarized as follows in the Mouton Report:
“Having established that trustees of retirement funds should hold knowledge of constitutional issues that affect their governance of the fund, the constitutional right of the members of the fund not to be discriminated against must be recognized by trustees. They are obliged to act impartially in their dealings with members and this means that all members must receive equal and objective treatment from any singular trustee or from the board of trustees acting as a collective.” Put another way, a trustee may not discriminate or act against the interests of one member to the benefit of others, or to the detriment of any single member or group of members.
The common law duty of trustees to act with impartiality in respect of all members is embodied as a right in section 9(4) of the Bill of Rights.
At this juncture, it is appropriate to mention the requirement that a retirement fund be governed properly by the ‘governors’ of the fund, being the board of trustees.
On 11 June 2007 the Registrar of Pension Funds issued PF Circular 130 in which it sets out general guidelines for the good governance of funds, to be followed by the trustees of retirement funds. It is expected that PF130 will be adjusted in the near future and elevated to a Directive as the Registrar has indicated that this will happen.
Responsibility for the good governance of the fund rests firmly on the shoulders of the trustees and the principal officer. It is therefore the duty of the trustees and principal officer (who is not necessarily a member of the board of trustees) to adhere to the principles of good governance, which include ensuring that the benefits provided for members in terms of the rules of the fund are delivered to them, that members receive maximum benefit out of their membership of the fund and that the associated investment risks are minimised while these diametrically opposed goals are kept in equilibrium and, lastly, that the costs arising out of the administration of the fund as well as the mechanism behind the provision of benefits are accessible, identifiable, quantifiable and able to be explained.
There are twelve principles of governance contained in PF130. Very briefly, the principles prescribe that the board is responsible and accountable to the members for the administration of the fund including the investment of fund assets. Board members should act jointly and the roles of the chairperson and principal officer are set out in PF130. Conflicts of interest should be avoided and the Code of Conduct of the board adhered to. The composition of the board should be such that opposing interests of the company and the fund do not reside in one person. The board may establish sub-committees for the board with designated or specific functions, which amount to supervisory responsibilities only. However, this may only be exercised if it is authorised by the rules. Effectively, this amounts to a delegation of the board’s responsibilities.
A third principle set out in the circular is that board members should undergo an orientation programme and receive good training around risk management, investments, retirement fund structure, the legal and compliance issues that go along with administration of the fund, tax, actuarial matters, and reform proposals for retirement funds.
Boards of trustees are also to be subjected to performance appraisals on an annual basis and the board should take action against trustees who shirk their responsibilities or act in contravention of the fund rules or the fund’s Code of Conduct.
The circular also lists requirements for oversight responsibilities by the board, and advocates clear identification and designation of persons who are responsible for the operational aspects of the fund.
A sixth principle that is prescribed is that the board may approach experts for advice in the areas relating to retirement funds where they lack expertise. The board should appoint expert advisers itself and only make use of people who carry the appropriate professional qualification.
With regard to risk management, each fund should have a “house view” with regard to risk management – this should be a policy adopted by the fund with regard to the investments made on behalf of members and would include the identification and handling of the risks facing the fund after it has been properly assessed and the implementation of processes to reduce the impact of such risks. This must be properly communicated to the members of the fund.
Related to the above, the board should have an investment policy statement or IPS which must be reviewed annually and communicated clearly to all members. More information relating to communication with members will be discussed later. The IPS should contain information about the fund’s investment advisers, who the custodians of the investments are and all the details of such investment related to, amongst others, the view of the asset managers at the investments houses where funds invest their money as well as fund investment performance in comparison to the benchmarks set by the fund and the asset managers, and so on.
A communication policy should also be established in terms of PF130. In terms of such policy, the trustees should be obliged to communicate at least the bare minimum fund information to members and beneficiaries and other stakeholders. The communication should be informative, transparent, fair and display accountability.
The members should also be placed in a position to assess the credibility and trustworthiness of the fund administration and the delivery of benefits and the board of trustees is responsible for communication of all the relevant aspects of the operation and investment performance of the fund to the members.
The relationship between the board and an employer and sponsor should be characterised by independence and co operation by the board. There is no employer-employee relationship between the board and the employer.
The last significant principle mentioned in PF130 is that the board should ensure that there is compliance with legislation and the rules of any regulatory authority, and that any queries from such authority must be dealt with thoroughly and expeditiously (Rajah 2007).
Duties of the board also extend to minimum communication and disclosure requirements, mentioned above. The requirements for proper disclosure can be broken up into a duty to provide generic information, the duty to provide fund-specific information on request and the duty to disclose benefit options. The duty to provide generic information relates to the fund’s duty and, therefore, the trustees’ duty to provide members with information relating to the contributions, the benefit formulae, the level of cover and the names of trustees and so on. The duty to disclose benefit options relates to the duty of the trustees to provide information to the member when the member is required to assess a matter and make a decision or an election. Where decisions are to be made by members that would affect the conditions of his retirement or the investment value at retirement or retrenchment, resignation or any withdrawal from the fund, this should be communicated to that member in clear and unambiguous language. The duty of the trustees also extends to notifying members when funds are to be restructured, which will result in the changing of the benefit structure and the potential impact of such restructuring on those members. Furthermore, funds should make available mechanisms for assisting members who have to make decisions and choices relating to their benefit or their investment. Members must be provided with adequate information to enable them to assess and make an informed decision, having all the relevant detail at their disposal (Willemse 2013: 366 - 367).
The Pension Funds Act does not provide any penalties to trustees that do not comply with Section 7C and 7D of the Pension Funds Act. However, common law may take effect and a spectrum of penalties may be applied. Some of these penalties may range from the trustees being held liable in their personal capacity for any loss or damage caused to a member by their irresponsible or improper conduct, and having to return any financial gain which resulted for the fund out of such conduct. In terms of the Financial Institution (Protection of Funds) Act, a trustee may be imprisoned for up to 15 years should that trustee be found guilty of a criminal offence in terms of this Act. Should the trustees act fraudulently or negligently, they may be held liable in their personal capacities for damages suffered by the fund itself (Swanepoel 2013: 114 ; 121).
Reform of retirement funds in South Africa may introduce some of the following principles relevant to trustees and the governance of funds:
The weight attached to the importance of the functions of the trustees in a retirement fund will be increased and the status of the circular which currently addresses these duties, PF130, will be elevated to a directive.
Trustee appointments will be monitored by the Financial Services Board (FSB) and trustees will be obliged to meet ‘fit and proper’ requirements.
The trustee toolkit, currently available on the FSB website, may become compulsory for trustees to complete.
These ideas were promoted by the Minister of Finance in the 2013 Budget Speech, but it remains to be seen which of these principles and provisions will indeed be adopted.