Retirement Funds Act, 2005
Act 5 of 2005
- Assented to on 26 November 2005
- Commenced on 1 November 2006
- [This is the version of this document from 1 November 2006.]
- [Note: The original publication document is not available and this content could not be verified.]
Part I – Preliminary
1. Short titleThis Act may be cited as the Retirement Funds Act, 2005.
2. InterpretationIn this Act, unless the context otherwise requires—“actuary” means any fellow of an institute, faculty, society or chapter of actuaries approved by the Registrar;“Adjudicator” means the Retirement Funds Adjudicator appointed in terms of section 45 of this Act;“annuity” means a series of equivalent payments payable either monthly, quarterly, bi-annually or annually;“association” means any association of people;“auditor” means a person who is registered as an auditor in terms of the Accountants Act, 1985;“complainant” means—(a)any person who is, or who claims to be—(i)a member or former member of a fund;(ii)a beneficiary or former beneficiary of a fund;(iii)an employer who participates in a fund;(b)any group of persons referred to in (a)(i), (ii) or (iii);(c)a management board of a fund or a member thereof; or(d)any person who has an interest in a complaint;“complaint” means a complaint of a complainant relating to the administration of a fund, the investment of its assets or the interpretation and application of its rules, and alleging—(a)that a decision of the fund or any person purportedly taken in terms of the rules was in excess of the powers of that fund or person, or an improper exercise of its powers;(b)that the interest of the complainant has or will be prejudiced as a result of the administration of the fund by any person, whether by act or omission;(c)that a dispute of fact or law has arisen between the fund or any person and the complainant; or(d)that an employer who participates in the fund has not fulfilled its duties in terms of the rules of the fund;but shall not include a complaint which does not relate to a specific complaint;“consolidate” for the purposes of this Act means the incorporation of all alterations, rescissions or additions to a fund’s rules into a bound set of rules of the fund and which rules have then been approved and endorsed by the Registrar;“Court” means the High Court of Swaziland having jurisdiction;“dependant” means in relation to a member—(a)a person in respect of whom the member is legally liable for maintenance;(b)a person in respect of whom the member is not legally liable for maintenance if such person—(i)was in the opinion of the management board dependent on the member for maintenance;(ii)is the spouse of the member and shall include a spouse as a result of any customary or religious union;(iii)is a child of the member and shall include a posthumous child, an adopted child and an illegitimate child;(iv)a person in respect of whom the member would have become legally liable for maintenance, had the member not died;“employer” means—(a)in the context of retirement funds referred to in paragraph (a) of the definition of retirement funds, a person representing the person or group of persons whose employees are members of the retirement fund or a person representing the governing body of an organisation whose employees are members of the retirement fund; or(b)in the context of retirement funds referred to in paragraph (b) of the definition of retirement funds, a person representing a business carrying on the business of a retirement fund;“financial year” in relation to any person, means the 12 months, or such other period as approved by the Registrar, preceding a set day of the month in each calendar year as at which the person’s financial statements are drawn;“fund” means a retirement fund as contemplated in this Act;“insurance and retirement benefit trust fund” means the fund established in terms of the Insurance Act, 2005;“insurer” means a person registered in terms of the Insurance Act, 2005;“life annuity” means for purposes of this Act an annuity payable during the lifetime of an individual or during the joint lifetime of an individual and any dependant nominated by the individual;“management board” means the body as contemplated in section 8 of this Act which has been entrusted with control over the retirement fund;“market value” means the value of a fund’s assets as determined in terms of the Regulations;“member” means any person whose membership of the fund has been established in terms of the rules of the fund and has not yet been terminated in terms of the provisions of the rules and shall include a person entitled to or receiving a benefit under the rules of the fund;“Minister” means the Minister responsible for Finance;“officer” in relation to a fund means any member of the management board, any manager, principal officer, treasurer, clerk or employee and shall exclude any person appointed as auditor in terms of section 21 or any person appointed as valuator in terms of section 22 of this Act;“pension” means an annuity payable under any law or under the rules of a pension fund, provident fund or retirement annuity fund;“person” shall include a juristic person;“principal officer” means the person referred to in section 11 of this Act;“Registrar” means the Registrar of retirement funds referred to in section 4 of this Act;“Regulations” means the Regulations made in terms of this Act;“retirement fund” means—(a)any plan, fund or programme established for the purpose of providing an arrangement established with the purpose of providing annuities and or lump sum benefits for its members on their retirement or for the dependants of such members on the death of such members;(b)retirement benefits to individuals. The term includes but is not limited to any pension fund, provident fund or retirement annuity fund, as defined in the Income Tax Act, as amended from time to time; or(c)a business carried on with the purpose of providing annuities and/or lump sum benefits for its members on their retirement or to the dependants of such members on the death of such members;“rules” means the rules referred to in section 13 of this Act and which have been approved and endorsed by the Registrar in terms of section 13 of this Act;“subsidiary” for purposes of this Act, means an associated organisation in which a person has an ownership interest exceeding at least 15% of that organisation;“this Act” includes the Regulations and the forms and directives emanating from those Regulations;“total interest” means—(a)in the case of a retirement fund where the member’s benefit on retirement is a series of equivalent payment’s which is or has been determined by a formula taking into account one or more of age, salary, length of service or otherwise, the value of the member’s benefit determined by the fund’s appointed valuator or the value determined on a basis supplied by the fund’s appointed valuator:Provided that the method of valuing the member’s benefit shall be consistent with the basis used by the valuator to establish the fund’s liabilities for purposes of this Act;(b)in the case of a retirement fund where a separate account is kept of each member’s share of the fund for retirement purposes, and which account is made up of an accumulation of contributions and investment returns thereon, the total amount of the member’s account and any other amount which the member may become entitled to from the fund;“trustee” means a member of a management board;“valuator” means an actuary who has been appointed in terms of section 22 of this Act.
Part II – Introductory provisions and registration of retirement funds
3. Prohibition of unregistered retirement funds
4. Registrar of retirement funds and Retirement Funds Board
5. Registration of retirement funds
6. Cancellation or suspension of registration
7. Retirement fund businessA retirement fund may not carry on any other business other than the business of a retirement fund, where the business of a retirement shall be taken to mean the purpose of the retirement fund as implied by the definition of “retirement fund” in terms of section 2 of this Act.
Part III – Management of a retirement fund
8. Management board of a retirement fund
9. Duties of the management boardThe management board shall ensure that—
10. Fiduciary responsibilities of the management boardThe management board shall ensure that the interest of members is protected at all times by—
11. Principal officer of a retirement fund
12. Duties of the principal officerThe principal officer shall be responsible for—
13. Rules of a retirement fund
14. Amendment of rules
15. Registered office of a retirement fund
16. Contributions due to a retirement fund
17. Retirement fund bank accounts
Part IV – Statutory obligations of a retirement fund
18. Retirement fund assets
19. Retirement fund investments
20. Financial statements
21. Appointment, powers and duties of auditor
22. Appointment, powers and duties of valuator
23. Actuarial valuations
24. Amalgamation and transfer
25. Impaired financial soundness of a retirement fund
Part V – Exemption from certain provisions of Part IV of this Act
26. Registrar’s authority and allowable exemptions
27. Exemption from the provisions of section 21
28. Alternative obligations for funds granted exemption in terms of section 27
29. Exemption from the provision of sections 22 and 23 of the Act
30. Alternative obligation for funds that have been granted exemptions in terms of section 29
Part VI – Statutory restrictions on the disposal of retirement fund benefits
31. Retirement benefits not reducible, transferable or executable
32. Allowable deductions from retirement benefits
33. Death of a retirement fund member
34. Insolvency of a retirement fund memberNotwithstanding anything to the contrary contained in any law on the insolvency of a person, any benefit which arose as a result of that person’s membership of a retirement fund shall not be considered as forming part of the estate of that person and may not be attached or appropriated by any person.
Part VII – Inspection, judicial intervention and winding up
35. Registrar’s powers of inspection
36. Inspector’s reportThe inspector shall prepare a report for the Registrar on the entire business of the retirement fund and the report shall include—
37. Registrar’s course of action
38. Appointment of an interim administrator
39. Powers and duties of the interim administrator
40. Voluntary liquidation of a retirement fund
41. Judicial winding up of a retirement fund
42. Special provisions relating to liquidation of funds
Part VIII – Consideration and adjudication of complaints
43. Submission and consideration of complaints
44. Establishment of office of Retirement Funds Adjudicator
45. Appointment of Adjudicator
46. Main object of AdjudicatorThe main object of the Adjudicator shall be to dispose of complaints lodged in terms of section 43 of this Act in a procedurally fair, economical and expeditious manner.
47. Disposal of complaints
48. Opportunity to commentWhere the Adjudicator intends to conduct an investigation into a complaint he or she shall afford the fund or person against whom the allegations contained in the complaint are made, the opportunity to comment on the allegations.
49. Parties to complaintThe parties to a complaint shall be—
50. Jurisdiction and prescription
51. Time limit for lodging of complaints
52. Procedure for conducting investigation
53. Legal representationNo party shall be entitled to legal representation at proceedings before the Adjudicator except where the Adjudicator has given permission for the parties to obtain legal representation or where the Adjudicator has requested the parties to obtain legal representation.
54. Record of proceedings
55. Statement by Adjudicator regarding determinationAfter the Adjudicator has completed an investigation, he or she shall send a statement containing his or her determination and the reasons therefor, signed by him, to all parties concerned as well as to the clerk or Registrar of the court which would have had jurisdiction had the matter been heard by a court.
56. Interest on amount awardedWhere a determination consists of an obligation to pay an amount of money, the debt shall bear interest as from the date and at the rate determined by the Adjudicator.
57. Enforceability of determination
58. Access to court
59. Powers of AdjudicatorThe Adjudicator may with the concurrence of the Registrar—
60. Expenses of the Adjudicator
61. Remuneration and terms and conditions of employment of Adjudicator and employees
62. Report of AdjudicatorThe Adjudicator shall each year within six months after the end of his or her financial year, submit a report to the Minister on his activities during the financial year.
63. Offences and penaltiesA person who—
64. Limitation of liabilityThe Adjudicator, or any of his or her employees, shall not be liable in respect of anything done or omitted to be done in good faith in the exercise of a power or the performance of the duty conferred or imposed by or under this Act.
65. LiquidationThe Office of the Adjudicator shall not be placed in liquidation except by Act of Parliament.
Part XI – General provisions[Please note: Part numbering as in original.]
66. Administrators, custodians and investment managers
69. Power to make Regulations
70. Registrar’s decisions may be made an order of CourtIf the Registrar makes any decision not inconsistent with this Act, he may if authority is not granted elsewhere in this Act, apply to the Court to make his decision an order of the Court.
71. Registrar may extend certain period
72. Adherence to the provisions of the Act shall not constitute an offenceA person who has, in good faith, supplied information to the Registrar or the Retirement Funds Board in accordance with the provisions of this Act shall not be guilty of an offence according to any law or shall not be subject to any form of sanction according to any code of practice or ethics or shall not be in breach of any agreement.
73. Application of this ActThis Act shall apply to retirement funds, pension funds, provident funds, and any other fund, institution, or organisation that the Registrar, in consideration of the objects of this Act has ordered to report to him.
74. Funds established under the Public Service Pensions Order, 1993
History of this document
01 November 2006 this version
26 November 2005
Cited documents 0
Documents citing this one 4
- Dlamini and Others v Registrar Of Insurance And Retirement Funds and Others (539 of 2012)  SZHC 102 (30 April 2012)
- Khumalo and Others v Auditor General and Others (132 of 2013)  SZHC 56 (6 March 2013)
- Maseko v Central Bank Of Swaziland And Others (42 of 2012)  SZSC 64 (30 November 2012)