Adjudicator slams pension funds for delaying payments

Two retirement funds, the Municipal Employees Pension Fund and the Mineworkers Provident Fund, have been censured by the Pension Funds Adjudicator, Muvhango Lukhaimane, for unreasonably delaying or withholding payments to members or beneficiaries, with the principal officer of the former being referred to the Registrar of Pension Funds for investigation.
In the first case, in May 2016 Ms N lodged a complaint against the Municipal Employees Pension Fund, Akani Retirement Fund Administrators and the City of Tshwane Metropolitan Municipality. She had become eligible for a withdrawal benefit on July 31, 2015, when she left the employ of the municipality. No benefit had been paid to that date despite her submitting the required forms. Ms N said in her complaint that it appeared the municipality had mislaid the forms, because the forms had to be resubmitted.
In its response to the complaint, the fund simply said that Ms N’s file was before the board of management for approval. The municipality failed to respond.
The adjudicator, in her determination, said the delay in the payment of Ms N’s benefit was unreasonably long and there was no justification for it.
“The pension fund states that the claim is awaiting the approval of the board of management. However, this is not a reasonable justification for the delay ... That the fund’s principal executive officer can sign off responses like this to this tribunal leads this tribunal to question her fitness to discharge her duties,” Lukhaimane said.
She said the Tshwane municipality had also failed Ms N. “It is essential for the employer to complete a withdrawal notification form indicating the cause of the termination of employment. This, in turn, allows the fund to determine which benefit is payable.
“In the absence a response from the [municipality], this tribunal concludes that the third respondent failed to comply with its duty of good faith in terms of assisting Ms N to claim her withdrawal benefit within a reasonable period following her exit from service.”
Lukhaimane ordered the fund to pay the benefit immediately, and said she was referring the determination to the Registrar of Pension Funds with a request that it consider an enquiry into whether the principal executive officer is fit and proper to serve as such in terms of the Act.

The Pension Funds Act states that a pension fund has 12 months within which to identify the dependants of the deceased, allocate and pay a death benefit. To punish the Mineworkers Provident Fund for its unjustified delay in finalising such a matter, the adjudicator imposed “compensatory damages” of 10 percent over and above the death benefit.
In May 2016, almost two years after the death of his brother, Mr MM complained to the adjudicator that the fund had not paid out his brother’s death benefit. The brother, Mr JM, an employee of Harmony Gold Mining Company, died on August 11, 2014.  
In responding to the complaint, the fund appeared confused about whether the benefit had been paid and how much had been paid. It was eventually established that R244 073 was owing to Mr JM’s beneficiaries.
In her determination, Lukhaimane said boards of pension funds had 12 months to identify the dependants of deceased members and allocate and pay death benefits. In this case, the board had failed to investigate the matter within the prescribed period in terms of the Pension Funds Act.
Lukhaimane said Mr JM’s beneficiaries had been prejudiced in that they had been denied access to benefits that may have become available to them if the investigation had been completed in time.
She ordered the fund’s board to complete its investigation and equitably distribute the benefit among Mr JM’s beneficiaries, without further delay.
She also imposed a punitive additional payment of 10 percent of the benefit as compensation to the beneficiaries for the fund’s delay in completing its investigations.


Absa response to widow raises more questions than it answers

A rural KwaZulu-Natal Midlands widow who has been fighting for access to her late husband’s provident fund for the past three years, was told that if she wants to know where the cash is, she must get a court order.

Noseweek first wrote about the case of Mandisa Happy Dlamini in November 2015 (“Absa accused of being ‘shameless liars’”, nose193). Ever since her husband Bernard died in May 2013, she has been in an endless battle with Absa Consultants and Actuaries (ACA), who manage the Private Security Sector Provident Fund (PSSPF), to pay out her late husband’s death benefit. All in vain. In July 2013 Dlamini, who had been unemployed and pregnant with Bernard’s child at the time of his death, asked her former employer Gail Meyer, an estate agent from Durban, for help.

It was only in October 2015, after Noseweek had contacted Absa Consultants, as well as Vunani Benefit, which claims to trace beneficiaries (generally unsuccessfully), and the PSS Provident Fund trustees, that Dlamini received a hurried payment of R51,184 into her bank account – but without any written or telephonic explanation.

On 21 January this year, after constant pestering, Meyer received a “Death Benefit Notice” explaining the October 2015 payment to Dlamini.

Apart from the awkwardly late condolence message, it raised more questions than it answered. The reckoning said that the provident fund, to which Bernard had contributed for 12 years, amounted to R118,940, of which 35% or R53,564 would go to Mandisa  and a further 10% would be payable to Bernard’s stepson. It made no mention of what would be payable to the newborn son, or anyone else – Bernard had two other children from other relationships.

Eventually Dlamini wrote a pleading letter to the PSSPF chairman Robert Dube on 9 May 2016:

 “Mrs Meyer told me that when she asked you about [the payments] you said the balance was paid to Bernard’s mom and his other two children from other girlfriends. This is not true. My mother-in-law received no money and there is no proof of payment to the other children. Had it not been for Mrs Meyer’s help, I would have received nothing. You must please tell me how the money was divided. I believe I have a right to know, being Bernard’s wife when he died”.

She got no reply.

Then out of the blue on 5 June this year ACA fund manager Beverly Phillips informed Meyer that the money for Mandisa’s baby boy would now be paid into a trust; set up by Bophelo Life which would collect fees along the way for this service.

“On receipt of the birth certificate (which is outstanding), his portion (21%) will be transferred to the Trust Fund to set up the Trust,” said Phillips.

Meyer had already sent Vunani and ACA the birth certificate in October 2015. They, again, seemed to have lost the documents.

 “ACA are a bunch of liars. How many more people like Mandisa are being treated like this? I have power of attorney, means of communication and a lawyer, working pro bono, but it has been a battle to get this far. It makes no sense to set up a trust for such a small amount (about R25,000) and it is bizarre that despite all our communications, this is the first time we have heard of such a trust. Surely Mrs Dlamini can be trusted to use the money in her child’s best interests,” said Meyer.

Fund chairman Dube told Noseweek that the only way Mandisa would know who had got what, was if she were to obtain a court order compelling them to release the trustees’ resolution. He assured Noseweek that no funds had been deducted by the bank or Vunani “from a slice of [Mandisa’s] benefit”. But PSSPF did skim off R1,175 in “fees”.

Meyer has since asked an attorney to pursue the court order. Meanwhile ACA was served a 120-day termination notice by the PSSPF in May. The fund said its reason was that they had “not been entirely satisfied with the service”.  Who would have thought?

Sent several questions by Noseweek, Zintle Letlaka, replying for ACA, said: “Absa acknowledges termination of its contract to the Private Security Sector Provident Fund (PSSPF). Absa will continue to fulfil its contractual obligations to PSSPF until the end of the notice period. Bound by client confidentiality, Absa will not comment further on the matter.”

How much the SA road fund pays out for the average accident claim

The Road Accident Fund (RAF), the public entity which compensates people injured in road accidents in South Africa, has reported a 46% rise in revenue for the 2015/16 financial year, to R33.2 billion.
This, it said, is despite having to cope with a legacy plagued by complex and legalistic hurdles, spiralling costs, insufficient funding to pay claims, and long standing insolvency.
A spiralling deficit of R143 billion directly related to the provision for outstanding claims on hand and still to be received, meant that liabilities exceeded assets by R145 billion, RAF said.
The fund said that claims liabilities increased by 33% to R154 billion from R116 billion in the previous financial year.
It said that the average value of a claim paid increased by 24% from R114,969 to R143,127, while claims processing improved by 15% to R32.3 billion.
The RAF said that the average claimant legal and other costs paid per claim increased by 33% from R90,563 to R120,385.
It added that the average RAF legal and other costs paid per claim increased by 32% from R21,564 to R28,476.
Additional highlights of the work conducted in 2015/16 include the following:
  • A total of 188,864 new claims were received and 188,759 were finalised. In comparison: 173,174 claims were registered and 183,933 finalised in 2014/15; 147,168 and 240,783 respectively in 2013/14; and 150,312 and 162,130 in 2012/13.
  • Despite an increase in new claims being received the RAF managed to attend to all of these and still reduce the balance of open and unfinalised claims slightly to 217,000 claims, with a noticeable reduction in older claims remaining open.
  • During the year under review, the RAF finalised an average of 715 claims each working day of the year compared to 697 in the previous year.
  • Total revenue increased by 48% to R33,2 billion from R22,7 billion in the previous financial year as a result of a 50 cent per litre increase in the RAF Fuel Levy and minimal increase in the volume of fuel sold over the previous year.
  • Total expenditure for the year, excluding the increase in the provision for outstanding claims, increased by R4.3 billion to R34.2 billion (2014/15: R29.7 billion) as a result of improved productivity in claims settlements and higher claims costs.
  • Claims expenditure – excluding the provision for claims incurred – of R32.3 billion accounted for 94% of total expenses, with the balance being made up of employee costs, i.e. R1.28 billion (4%) and administration and other costs, i.e. R618 million (2%).
  • Effective financial management saw larger sums of money managed in an effective manner with an improvement in internal controls and unqualified audit opinion obtained.
  • 13,4% of overall expenditure went to legal fees, from a high of 29% five years ago. The RAF would still prefer that this money is spent on taking care of car crash victims, rehabilitation and other post-crash care expenses.
  • A total of R424 million worth of fraudulent claims were identified before payment was made and 391 people were arrested with 231 convicted for fraud against the RAF.
The accident fund said that of the individual claim payments/settlements made per category:
  • R1.2 billion was paid in medical costs;
  • R120 million was spent on funeral costs;
  • R6.6 billion was spent on legal and other expert costs;
  • R8.7 billion was paid in general damages – primarily to persons not seriously injured; and
  • R16.4 billion was paid for loss of earnings and support for those who qualified.
The RAF said that while the extra R10 billion revenue boost alleviated some of its immediate challenges, it does not solve the reality that the Fund is still short of sufficient cash to honour all finalized claims and this is exacerbated by the fact that the fuel levy remains flat at 154 c/l of fuel sold in 2016.
Beyond the money, the value of the fund’s claim payments has touched lives, evidenced by the fact that over 8,414 funeral claims were paid by the RAF in the year under review (in the context of 14,000 road fatalities per annum).
“Reducing the frequency, severity and impact of accidents remains the Fund’s highest priority, as the estimated cost of road crashes to South Africa’s economy remains staggeringly high at an estimated R306 billion per annum,” it said.


Creditors and your pension money

CAPE TOWN – In this advice column Deidre Phillips from Bowmans answers questions from a reader about creditors’ access to retirement funds.
Q: I have three questions. 
Firstly, will creditors have access to your retirement fund savings if you take it all as a lump sum?
If you do take a lump sum, is an employer obligated to inform your creditors that you are now in possession of a sizable amount of money?
And if an employer has a garnishee court order against it in terms of which it is required to make deductions from an employee’s salary, what happens if the employee resigns before the debt is settled? Will the order fall away or must the debt be settled by requesting that the fund deduct the outstanding debt from the member’s withdrawal benefit and pay the amount over to the creditor?

A: Section 37A of the Pension Funds Act protects a member’s retirement fund benefits from his or her creditors. This is subject only to certain limited deductions, which include:
  • Deductions in terms of the Income Tax Act (i.e. tax payable to SARS on the benefits that are paid by the fund to the member)
  • Deductions in terms of a maintenance order granted in terms of the Maintenance Act
  • Deductions in respect of a home loan granted by the fund to the member or a home loan guarantee furnished by the fund to a third party (such as a bank) in respect of a loan granted to the member in terms of the Act
  • Deductions in relation to a share of a member’s “pension interest” awarded to a former spouse in terms of a divorce order
  • Deductions of any amount due by the member to his or her employer in respect of compensation for any damage caused to the employer in respect of theft, dishonesty, fraud or misconduct by the member and in respect of which the member has (i) in writing admitted liability to the employer; or (ii) judgment has been obtained against the member in any court.

It is important to note, however, that once a benefit has been paid to a member by a fund it loses the special protection provided by the Act. This is so because the benefit is no longer due by the fund.
So to answer the first question, no amount can be attached or claimed in the fund before it is paid to the member. However, once a retirement benefit is taken as a lump sum then as soon as the member receives payment of that lump sum, his or her creditors can lay claim to it.
If the retirement benefit is rather paid as a monthly pension, then the only amount that can be attached by creditors is the monthly amount once it is paid to the member. The balance remaining in the fund stays protected.
To answer your second question, an employer has no obligation in terms of the Act to notify a member’s creditor that the member has received his or her retirement benefit.
Finally, when it comes to garnishee court orders, the obligation on the employer to deduct from the employee’s salary and to make payment to the creditor will fall away when the employee resigns. This is because there is no longer any salary from which to deduct.
Note that section 65J(8) of the Magistrates’ Courts Act, 1944 provides that when the judgment debtor (the employee) leaves employment before the debt is settled in full, then the employee must advise the judgment creditor in writing of the name and address of his new employer. The judgment creditor may then cause a certified copy of the garnishee order to be served on the new employer.
It is not uncommon for garnishee orders to also place an obligation on the (previous) employer to notify the judgment creditor that the employee has left service. However, the fact that an employee had resigned and may become due a withdrawal benefit from a fund does not automatically translate into the fund being obliged to deduct the outstanding debt owed to the creditor from the member’s withdrawal benefit. Such a deduction will be unlawful and contrary to section 37A of the Act.
Deidre Phillips is senior associate in the Banking and Financial services regulatory team at Bowmans.
If you have any questions you would like answered by financial planning or financial services regulatory law experts, please send them to editor@moneyweb.co.za.



Concourt confirms your rights on issuing of EAOs

Emoluments attachment orders (EAOs), colloquially known as “garnishee orders” – have been abused by unscrupulous credit providers for years. As a result, countless debtors have been denied many of their constitutional rights, including their right to access justice, and have found themselves in debt bondage because of the many EAOs against them.
But a decision by the Constitutional Court this week will put a stop to the abuses, because it confirms key orders contained in an important High Court judgment that addresses problems with the law governing the issuing of EAOs, the Magistrates Court Act (MCA). This week’s Constitutional Court judgment also changes sections of the MCA that were unconstitutional, Odette Geldenhuys, a
senior associate at law firm Webber Wentzel and the attorney for the applicants in the matter, says.

The Constitutional Court judgment follows an application from the Western Cape High Court to confirm an order of constitutional invalidity – in other words, the highest court in the country was asked to confirm a judgment that declared aspects of a law to be “constitutionally invalid”.
The Western Cape judgment was handed down by Judge Siraj Desai in July last year following an application by the University of Stellenbosch Legal Aid Clinic (Uslac) brought in the public interest. Uslac’s clients are mostly impoverished farm and general workers, many of whom are battling to survive because of EAOs.

Judge Desai’s judgment, which was widely hailed as a victory for the poor, found that the EAOs against Uslac’s clients were obtained unlawfully and that sections of the MCA were inconsistent with the constitution and hence invalid.
Instead of confirming his order of constitutional invalidity, which would have necessitated having Parliament amend the MCA, the Constitutional Court made changes to the relevant sections of the Act, and confirmed other orders made by Judge Desai.
“The effect of the order is that, with immediate effect, no EAO may be issued by a clerk of the court; it can only be granted by a magistrate if the magistrate is satisfied that it is just and equitable that the EAO be issued and that the amount is appropriate,” Geldenhuys says.
Furthermore, an EAO cannot be issued by a magistrate in a far-off jurisdiction; it can be issued only by a magistrate in the jurisdiction where the debtor lives or works.
Each of these effects of the judgment – which applies to EAOs issued from now on (not retrospectively) – protects you in the following ways if a creditor seeks to obtain an EAO against you:
1. Judicial oversight
An EAO can be issued by a magistrate only. It cannot be issued by a clerk of the court, which is what commonly happens. The Constitutional Court judgment says that this case is a prime example of why judicial oversight (the scrutiny of a magistrate or judge) over the execution process is required.
An EAO is “clearly burdensome”, the judgment says. “It severely constricts the autonomy of the debtor to decide how [he or] she will pay off the debt. It is also inflexible, as it does not adapt to the debtor’s changing circumstances from week to week. It goes directly off a debtor’s wages – and these wages will often form the means for the debtor’s day-to-day survival. These are all important considerations to be borne in mind when deciding whether an EAO should be granted. What is more, a debtor’s personal circumstances may well have changed in the interim between when a judgment debt is entered and ordered to be paid in instalments and when an EAO is sought. It is, therefore, crucial that these considerations are taken into account at the time the EAO is sought.”
2. Jurisdiction
An EAO must be issued in the same jurisdiction as the judgment debtor; in other words, where the debtor lives or works. This is to ensure that the debtor is able to place his or her circumstances before the court, and in so doing can exercise his or her right to access justice.
You can no longer agree to a credit provider applying to a magistrate in a jurisdiction other than where you live or work for an EAO to be issued against you. If you are forced to give such consent, it will automatically be invalid.
3. Appropriate
The EAO must be of an amount that is “appropriate”, the Constitutional Court judgment says. One of Uslac’s clients earned R2 420 a month and had an EAO of R1 194, leaving him with a net income of R1 263.
The judgment says a court that determines a request for the issuing of an EAO should be guided by certain factors: it must take into account the nature of the debtor’s income and the amount the debtor needs for upkeep and to support dependants. “The validity of an EAO depends on whether the debtor has sufficient residual income to support herself and her dependants. Thus such an order may only apply to funds that are in excess of the amount she needs for the maintenance of herself and her dependants.”
Geldenhuys says the judgment strikes a fine balance between the rights of debtors and the rights of creditors. “The judgment says that the EAO granted by the court must be ‘just and equitable’ and the amount must be ‘appropriate’.
“The choice of words here is very important. ‘Just and equitable’ requires the magistrate to consider the situation of both the credit provider and the debtor in deciding whether to grant an EAO. Requiring that the amount to be paid in terms of the EAO be ‘appropriate’ signals that the amount must not only be affordable for the debtor, it must also be fitting in relation to the outstanding debt.”
A magistrate in the Western Cape says that although he does not expect the judgment to stem the use of EAOs, it will take longer to issue these orders because of the application process and, consequently, they will be more costly for the creditor, and eventually for the debtor.
“Attorneys will have to put in more work when bringing these applications. Before bringing the application, they will have to have a good sense of the debtor’s income and expenses so that they know what the debtor can afford to pay in instalments,” he says.
• An emoluments attachment order, often called a “garnishee order”, is a court order to attach a debtor’s salary and deduct from it instalments that are paid by the debtor’s employer to the debtor’s creditor in settlement of a judgment debt.
• Execution is a process of enforcing a court order. Depending on the nature of the order granted, execution may be against the person or the property of the judgment debtor.



Garnishee ruling to benefit millions

“A LANDMARK decision which will have a lasting 
positive effect on the lives of millions of South Africans, most especially the poor.”
This is how Western Cape High Court Judge Siraj Desai described a ruling handed down in the Constitutional Court yesterday.

The ruling means that with immediate effect, no garnishee orders – also known as emolument attachment orders (EAOs) – can be issued without oversight by a magistrate.
Judge Desai’s ruling ensured that employers in the Western Cape would be exempt from enforcing garnishee orders against employees obtained in another 
jurisdiction or outside the province.

Commenting on the 
Concourt ruling yesterday, he said: “Lots of hard work went into drafting the judgment – and to think when I made it last year the DA laughed 
at me.”
The Concourt ruled yesterday that aspects of the enforcement of garnishee orders are unconstitutional.
Garnishee orders can now be granted only by a judge or a magistrate. They also need to be granted in the jurisdiction of the debtor, and the debtor must be warned via registered letter that they have 10 days to pay the debt if they want to avoid its granting.
These orders give creditors the right to debit the wages of indebted individuals.
The ruling has been welcomed across the board as it will ensure that the collection of unpaid debt is more just 
and equitable.
Minister of Justice and Correctional Services Michael Masutha welcomed the “landmark” judgment yesterday.
“We welcome today’s (Tuesday’s) Constitutional Court judgment on issuing of the garnishee order. The judgment will ensure just and fair 
services to ordinary people, especially the poor,” Masutha said.
He said the department would make sure all the 
concerns raised in the judgment are immediately attended to. “Our people must receive qualitative justice services,” said Masutha.
He explained the judgment was consistent with the Courts of Law Amendment Bill, which was introduced by the department in Parliament in May.
Credit Ombud Nicky Lala-Mohan said the judgment set a solid ground for future garnisheeing.
“What the Concourt did was that it confirmed the ruling of the judge in Cape Town (Desai).
“Certain aspects of the emolument orders are unconstitutional,” he said.
Lala-Mohan said there had been an abuse of workers, with many unaware of the correct process to follow.
“This case goes a long way in curbing abuse. A lot of attention has been gained because of this case.
“Now you will have a proper manner in which emolument attachments will be dealt with.”
He also said lenders were still entitled to collect their debt, but need to follow the correct procedure.
Stellenbosch University’s Legal Aid Clinic paralegal adviser, Mathilda Rosslee, said: “I am so happy with what has transpired. The judgment is really overwhelming.
“It just confirmed that it was what we are trying to protect and the constitutional right.”
The clinic had taken the matter to court, but it was opposed by debt collector 
Flemix & Associated Incorporated Attorneys.
Judge Raymond Zondo ruled that the amount to be deducted needed to be appropriate, and that the order would only be for future EAOs.
Rosslee, who has been fighting this battle since 2012, said workers found themselves in situations were the majority of their salaries had been deducted without their consent or understanding of the amount.
“Our average client is illiterate, with some of them not being schooled at all. Some cannot even read English.
“They (debt collectors) give them papers to sign that an agent has sent them. What the workers are actually signing is Section 129, together with consent and justification.
“So this has become a problem. We needed to protect these consumers,” she said.
The matter was dismissed with costs.



Constitutional Court to rule on forced wage deductions

ALMOST 2-million emolument attachment orders could be affected by a Constitutional Court judgment due to be delivered on Tuesday.
The ground-breaking case was originally heard in the High Court in Cape Town in February 2015, and it challenges the constitutionality of the process of granting emolument attachment orders in the context of unsecured lending.
The case was brought to court by the University of Stellenbosch’s Legal Aid Clinic and others against the minister of justice and correctional services and others.
In March 2015, the Constitutional Court heard an appeal against the high court’s judgment during which the highest court was urged to declare sections of the Magistrates’ Act unconstitutional. The Legal Aid Clinic also urged the Constitutional Court to set aside all emolument attachment orders issued in the wrong jurisdiction or signed off by a clerk of the court instead of a magistrate.
Clark Gardner, CEO of Summit Financial Partners, estimates that there are as many as 2.5-million emolument attachment orders in existence, and about 1.9-million of them could fall foul of a Constitutional Court ruling if it finds in favour of the Legal Aid Clinic.
The case goes to the heart of the unsecured lending industry, which has relied heavily on access to emolument attachment orders to enforce the payment of loans that were often made recklessly.
Although unsecured lending has tapered off in the wake of the slowdown in economic activity, supporters of the Legal Aid Clinic’s move say changes must be made before the inevitable pick-up in unsecured lending activity. There is also the possibility that Tuesday’s judgment will apply to emolument attachment orders that have already been issued.
In response to the persistent demands for change, the portfolio committee on justice and correctional services is looking at proposed amendments to the Courts of Law Act that are aimed at preventing much of the abuse around garnishee orders.
In his July 2015 ruling in the case, Judge Siraj Desai declared that all 15 of the emolument attachment orders in the case had been issued unlawfully, invalidly and were of no force and effect.
Desai slated debt-collecting law firm Flemix and Associates for shopping around for magistrate’s courts that would sign off on emolument attachment orders regardless of how far this was done from the residence or place of work of the debtor.
This made it almost impossible for debtors to challenge the terms of the order.
The judge also hit out against the practice of using clerks to issue emolument attachment orders rather than magistrates, which meant there was no judicial oversight of the process.



How to check if a speeding fine is legal in South Africa

If you were caught speeding using a handheld speed trap device, there are requirements which should be met for the fine to be legal.

There is always a degree of uncertainty regarding speed traps and speed cameras in South Africa, including when you can be fined and where it is legal to trap drivers.
The growing list of technologies used in South Africa to enforce speed limits further complicates matters.
Here are answers to some of the common questions regarding the legality of speeding fines, with a focus on hand-operated speed trap devices.
The answers are courtesy of the AA’s Legal Advice portal, which contains information regarding road use in South Africa.

When you can be fined for speeding

The simple answer is that if you exceed the speed limit, you can be fined.
10km/h leeway of the speed limit may be applied before issuing a ticket for speeding. However, this is a guideline and does not have to be applied.
“It is important to remember that once a prosecution for speeding is initiated, the charge will start from 1km/h over the posted speed limit,” said the AA.

The minimum allowable distance between two speed traps

There is no minimum allowable distance between two speed traps.

Driving into a zone with a lower speed limit

When you are driving into a zone with a slower speed limit – example: from 120km/h into an 80km/h zone – there is a 300m grace distance.
The Prosecution Guidelines state that no prosecution may be instituted where the speed measurement was taken within 300 metres of the commencement of the speed limit zone, except with permission from the Director of Public Prosecutions.
The guidelines are operational guidelines only and non-compliance does not influence the accuracy of measurement results.
The decision on whether to prosecute remains at the discretion of the prosecutor.

A speed trap on the bottom of a hill

A manned speed trap where offenders are stopped at the roadside may be set up anywhere.
Fixed speed traps, where a photograph is taken, must have authorisation from the office of the Director of Public Prosecutions for installation.
This authority is motivated by improving traffic safety through reducing the speed to the speed limit in that area, regardless of location.

Handheld speed trap requirements

The prominent guidelines, provided by the AA, regarding handheld speed traps are:
  • A valid calibration certificate and the operator’s certificate must be available at all times.
  • A driver shall be afforded the opportunity to view the speed reading and the two certificates.
  • The speed measurement equipment (SME) must be mounted on a firm and stable surface. If it is mounted in or on a vehicle, the vehicle must be stabilised.
The following is in terms of the prosecuting guidelines for speed measurement equipment and traffic light violation-monitoring equipment.
Site Selection
When selecting a site for a speed measurement exercise, the following must be adhered to:
  • Site selection must be done during daytime for day and nighttime operation.
  • There shall be no large, stationary, or metal objects within a radius of 50m in front of the radar SME.
  • There shall be no metal road signs or vertical flat surfaces within 15 degrees on either side of the aiming direction, within a distance of 200m of the antenna.
  • The equipment may only be used where there is a clear view within 45 degrees of the direction of aim over a distance of 600m.
  • There shall be no high-tension cables within a radius of 100m of the antenna.
  • There shall be no discharge type lamps in operation within 45 degrees of the direction of aim within 100m of the antenna.
Speed measuring equipment
  • Equipment modified or permanently set that no signals are received and processed from vehicles more than 300m away may be used on straight roads.
  • Equipment not modified shall be used where rises and bends in the road take all vehicles further than 300m out of the measuring area of the SME.
Guidelines for prosecution with regard to speed measurements by laser equipment
When selecting a site for a speed measurement exercise, the operator must have a clear and uninterrupted view of the road and the vehicle measured for the duration of the measurement.

What you may ask when you are pulled over for speeding

Justice Project South Africa chairman Howard Dembosky said you may ask to see the calibration certificate for the speed measuring equipment used.
You may also ask to see the operator’s certificate for the person operating the device.
A motorist may also ask to see the officer’s appointment certificate as a peace officer.
Dembovsky said should you choose to request these certificates, you must remain polite at all times.
“If any one of them is not produced, don’t get into an argument about it, simply note it for your defence,” said Dembovsky.

Claims backlog 
big concern

HEALTH Minister Aaron Motsoaledi has blocked the tabling of the financials of the Compensation Fund in Parliament because he wanted to clean up the backlog of 100 000 cases of unpaid claims to injured workers.
Motsoaledi said in a letter to Parliament some of the unpaid claims date back to almost 20 years ago.

The backlog in the processing of claims to injured miners and other workers has led to delays in finalising and collating information on the state of the Compensation 
He said a lot of work was being done to fix the state of the fund. An actuarial valuation of the fund is under way. Motsoaledi said the valuation report was expected in mid-August.
The auditor-general has also started his work in auditing the fund.
The minister said the previous financials of the Compensation Fund had adverse opinions from the auditor-general owing to missing beneficiary files and the auditor-general not accepting the previous actuarial valuation of the fund.
Unpaid claims to thousands of workers is one of the serious problems affecting the miners and other workers in the country.
The Registrar of Pension Funds said last year there was R20 billion sitting in the coffers of pension funds for unclaimed benefits.
The Financial Services Board (FSB) said in a report last year about 3.5 million people were owed the R20bn in unclaimed benefits.
It said one of the problems was that companies and pension funds did not provide information to the workers that they were entitled to benefits if they retire, were dismissed or retrenched.
It said there was poor monitoring on the administration of the pension funds by the boards.
The FSB said in a recent review it found there was R5.2bn in unclaimed benefits in the mining industry. This constituted a total of 200 000 miners.
The FSB said workers had to be cautious when claiming their
benefits, and not do so through intermediaries.


Ex-miners still to claim R30bn

Most ex-mineworkers aren’t aware that there’s a mountain of funds that they are entitled to.

About R30 billion is waiting to be claimed by miners, the majority of whom are ex-mineworkers, Deputy Minister of Mineral Resources Godfrey Oliphant has announced.
He said several ex-miners, who were partly employed under the legacy of the migrant labour system, had accessed funds.
“These are substantial sums that would do a lot to rejuvenate rural economies and labour-sending areas where the mineworkers come from – within South Africa and in neighbouring countries,” he told the media during a press briefing in Pretoria on Friday. Since 2013, about 14 000 former mineworkers received compensation benefits amounting to R40 million, and 8 000 received Unemployment Insurance Fund benefits amounting to R14 million.
One of the reasons for unclaimed funds, however, was that the majority of miners were living in rural areas and were unaware they were able to claim benefits from the labour and health departments.
In some cases they were aware of the fund, but many did not have proof of address and some only had a postal box address.
Migrant workers had also returned to their countries, such as Zimbabwe, Botswana and Mozambique.
Oliphant said in May last year that Health Minister Aaron Motsoaledi, trade unions and the Chamber of Mines launched an operation to pay out R1.5 billion to about 103 000 ex-mineworkers with unclaimed compensation benefits.
– denisew@citizen.co.za


Mines minister still hopes to have benefits laws streamlined this fiscal year

LEGISLATION providing for the merger of statutes that provide benefits for occupational diseases may be in force by March 2017.
Various government departments are working with mining houses to create a master database of former mineworkers who are owed billions of rand in unclaimed benefits, Mineral Resources Deputy Minister Godfrey Oliphant said on Friday.
She said it was still hoped that legislation to address a problematic compensation system for mineworkers would be in force by the end of the 2016-17 financial year.
Benefits for occupational lung diseases are among the provisions of this legislation.
The Department of Health has already developed a database covering the health records of to an estimated 700,000 mineworkers.
“To enrich the database we have started discussions with the Chamber of Mineworker to (include) 500,000 current mineworkers,” Oliphant said at a briefing in Pretoria on Friday.
“Currently there are R30bn in unclaimed benefits. A substantial portion is for mineworkers partly due to the legacy of the migrant system,” Oliphant said.
Former mineworkers or their families are still owed between R7bn and R10bn in unclaimed benefits across Southern African countries, with previous efforts to integrate compensation systems hampered by a lack of a reliable database, Oliphant said.
Since the end of apartheid, various attempts have been made to integrate compensation systems in SA, and work continues on a single system covering all benefits including provident and pension funds.
This forms part of a broader goal of a comprehensive system of social protection for employment, including the informal sector, by 2030.
A legislative framework is being developed to merge the Occupational Diseases in Mines and Works Act (ODMWA) and the Compensation for Occupational Diseases and Injuries Act (COIDA) to meet mineworkers’ longstanding grievances about inferior benefits, and access to benefits.
ODMWA falls under the Department of Health, while COIDA is better known as the Compensation Fund and falls under the Department of Labour. ODMWA benefits for mineworkers have been seen as inferior, dating back to 1912, and levies under that act only cover income replacement and not administrative costs.
At the same time, the migrant nature of the mining sector has hampered attempts to reach mineworkers both in SA and in neighbouring countries, with Financial Services Board CEO Dube Tshidi saying that before 1996 employers held all the data for provident and pension funds, and much of the information was unreliable.
Even the families of mineworkers did not always know where their family member had worked, said Tshidi.
The departments of health, labour and mineral resources are undertaking roadshows and have formed a steering committee with several agencies to fast-track payments of benefits.


Former mineworkers owed billions of rands

JOHANNESBURG (miningweekly.com) – A substantial sum – between R7-billion and R10-billion – of an estimated R30-billion in unclaimed benefits is believed to be due to South Africa’s former mineworkers.

The Department of Mineral Resources (DMR) is working to deliver single-compensation legislation by March and an integrated institution to manage financial benefits and compensation support matters after a years-long uphill battle.

“We now have a picture of the nature of the problem,” the Department of Planning, Monitoring and Evaluation (DPME) director-general Tshediso Matona said at amedia briefing in Pretoria on Friday.
Updating the public on work that is being undertaken to mitigate social protection matters, Mineral ResourcesDeputy Minister Godfrey Oliphant said mineworkers, former mineworkers and their families faced an uphill battle in accessing their social protection benefits and, in many cases, were not even aware of the financial benefits due to them.
“The majority of [former] mineworkers are in rural villages and have little knowledge about their benefits. Where they have knowledge, it is virtually impossible to access their benefits owing to multiple barriers,” he said.
A pilot project, undertaken in the Eastern Cape during July as part of the Special Presidential Package for the Revitalisation of Distressed Mining Communities initiative, highlighted the need for improved integration between the various programmes, such as support programmes for duefinancial benefits and occupational health and diseases compensation.
The DPME and the Financial Services Board gathered the records, including old pay slips, Chamber of Mines (CoM) industry numbers, old 'dompas' identity numbers, provident and pension fund letters and old Teba mining company cards, of all the former mineworkers in the Eastern Cape to track and trace any potential benefits due, some of which dated back to the 1970s.
“We need to do more to improve the access of workers and [former] workers to their funds that they contributed to over their working lives,” said Matona.
Since 2013, about 14 000 former mineworkers had received compensation benefits amounting to R40-million and 8 000 had received Unemployment Insurance Fund benefits amounting to R14-million.
A May 2015 partnership, Operation Ku-Riha, between the departments of Health and Mineral Resources, trade unions and the CoM, aims to pay out some R1.5-billion in unclaimed compensation benefits to about 103 000 former mineworkers.
“While progress has been slow owing to setting up the tracking and tracing system, since February 2016, we have paid 1 443 claimants approximately R56-million and R3-million has gone to neighbouring countries,” Oliphant noted.
However, a lack of a database made tracking and tracing former mineworkers difficult, and as a result, an integrated and uniform workers’ compensation system is currently being developed with the support of the Department ofHealth (DoH) and the Department of Labour.
The DoH has subsequently developed a database of former mineworkers that covers both the demographic details and medical records of the former mineworkers.
“This database covers 700 000 claimant records and will assist all agencies across government to track and trace persons with unclaimed benefits. To enrich the database, we have started discussions with the CoM to cover the current workforce of 500 000 mineworkers,” he explained.
Meanwhile, mobile outreach activities are under way to deploy mobile one-stop facilities comprising claims management, a health clinic for medical assessments and amobile bank, funded by the World Bank, CoM and the GoldWorking Group, besides others.
“This new approach to piloting services closer to the [former] mineworkers has improved service delivery,” Oliphant said, adding that efforts were under way to add rehabilitation services for injured mineworkers to enable the provision of a fully integrated service covering occupational disease and injuries.
The one-stop service centres have been used by about 6 000 former mineworkers, with 4 000 referrals to the head office in Johannesburg since being opened in April 2014.
Further mobile outreach activities are planned for Bizana, Lusisiki, four other districts in the Eastern Cape, Welkom, in the Free State, and in BotswanaLesothoMozambique andSwaziland over the next four months