Authored by Patrick Bracher.
A provident fund applied to the Financial Services Tribunal for reconsideration of a R15 000 administrative penalty imposed upon it in terms of section 37 of the Pension Funds Act for late submission of its annual financial statements. The reconsideration action was dismissed.
It was not disputed that the Fund failed to submit its 2023 annual financial statements by an extended deadline date whereafter the notice of intention to impose the penalty was issued.
Section 15(1) of the Pension Funds Act requires every registered fund to furnish the FSCA with prescribed audited financial statements within six months after the end of each financial year. The Tribunal dismissed the Fund’s complaint that the FSCA acted unfairly by communicating the penalty decision to a person who was no longer employed by the Fund. Evidence showed that the decision had come to the Fund’s attention, hence the application itself. The real question before the Tribunal was not whether the FSCA’s communication was flawless. The question was whether the process leading to the decision was procedurally unfair or otherwise provided a basis for interfering with the decision. The record showed that the penalty had been communicated and the Fund had been afforded the opportunity to make representations, which it did. The Fund therefore was aware of the proposed enforcement action and afforded a meaningful opportunity to present its version.
The explanation that the late submission of the annual financial statement was occasioned by governance and administrative difficulties did not excuse the non-compliance. Those explanations had been placed before the FSCA and were considered before the decision was taken. In those circumstances, the Tribunal was unable to conclude that the FSCA acted unlawfully or improperly in imposing an administrative penalty of R15 000. The application for reconsideration was dismissed.