In the recent decision of NN and OB Transport CC and Others v Transport Sector Retirement Fund and Others, the Financial Services Tribunal dismissed the employer's application for reconsideration of a Pension Funds Adjudicator's determination. At the heart of the dismissal was not only a lack of merit in the underlying dispute, but a critical procedural failure: the reconsideration application was filed late, and the Tribunal refused to grant condonation.
This decision provides a timely reminder that procedural compliance, particularly with statutory deadlines, is not a mere technicality, but it is foundational to the finality and integrity of pension fund dispute resolution.
Background
The dispute arose from the employer's failure to pay pension fund contributions to the Transport Sector Retirement Fund ("the Fund") in breach of Section 13A of the Pension Funds Act ("the PFA"). The Fund lodged a complaint with the Pension Funds Adjudicator, who ruled in its favour and ordered, inter alia, that the employer submits outstanding schedules and pays all arrear contributions with interest.
Instead of complying, the employer sought to challenge the Adjudicator's decision by applying for reconsideration before the Financial Services Tribunal ("the Tribunal"). However, the application was lodged outside the statutory period prescribed under Section 230 of the Financial Sector Regulation Act, 2017. In terms of this provision, a party who seeks to challenge a decision must file a reconsideration application within 30 days of receiving the reasons for the decision, if reasons were requested, or otherwise within 60 days of being notified of the decision. Should the party fail to comply with this deadline, the said party must apply for condonation and satisfy the Tribunal that there is good cause for the delay. Consequently, the applicants were required to seek condonation.
The Tribunal's Approach to Condonation
The Tribunal reaffirmed that an application for condonation must be succinct and will only be granted where good cause has been shown. The enquiry into good cause involves an assessment that may include, among other considerations, the degree of lateness, the explanation provided, prospects of success, and the applicant must provide a full explanation that accounts for the entire period of the delay. Good cause must ultimately be assessed holistically and on the facts.
In this matter, the Tribunal found the explanation for the delay to be inadequate. The applicants failed to provide a full, detailed account that covered the entire period of delay. The Tribunal concluded that the explanation lacked the necessary specificity and substance to meet the threshold of good cause.
Furthermore, the Tribunal held that the application also lacked reasonable prospects of success. The statutory obligations to pay pension contributions, submit records, and provide prescribed information to a Fund, are unequivocal and peremptory under Section 13A of the PFA. These obligations rest squarely with the employer, and adherence to them is essential for the effective and efficient functioning of the Fund. The applicants failed to advance any tenable basis for the Tribunal to interfere with the Adjudicator's findings on the merits.
In the result, the Tribunal concluded that condonation could not be granted, as the applicants had failed to demonstrate good cause.
The Tribunal's approach underscores several procedural and substantive insights:
- Adherence to timelines: The timeframe for lodging a reconsideration application must be observed. Parties and their representatives should diarise the relevant deadlines and act promptly and diligently to avoid unnecessary procedural hurdles.
- Condonation demands specificity: A successful condonation application requires a full, persuasive explanation that accounts for the entire period of delay, supported by credible facts and timelines. Vague or generalised justifications will not suffice.
- Merits still matter: Even where some explanation is offered, the Tribunal will assess whether the applicant has any reasonable prospects of success. Without a persuasive legal basis for challenging the Adjudicator's ruling, condonation is unlikely to be granted.
- Upholding governance and deterrence: The decision affirms that parties who fail to meet their obligations and then attempt to delay accountability, will face firm resistance. It also sends a signal that the Tribunal will not allow its processes to be used to obstruct enforcement.
Conclusion
The Tribunal's refusal to condone the late application for reconsideration underscores a broader principle: there is a distinct pension fund litigation legal framework, and those who ignore it do so at their peril.
As pension funds continue to tighten governance and pursue defaulting employers, this decision serves as a precedent that may well discourage frivolous delays and reinforce the integrity of the retirement fund enforcement framework.
See more here for further discussion on condonations relating to financial services.
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