As of this month, the Pension Funds Adjudicator has had a mandate to make decisions that take into account principles of equity. Members and beneficiaries of retirement funds should take comfort in knowing that the adjudicator can look beyond the legal clauses of a contract to decide what would be a fair outcome. The adjudicator, Muvhango Lukhaimane, believes we all have a sense of what is fair, but her colleagues in the legal profession regard fairness as a slippery concept that cannot be applied in the highly regulated retirement industry. At the recent Pension Lawyers Association's conference, advocate Pieter van den Berg said chaos would ensue if equity could be applied generally. In his view the adjudicator will not be able to make rulings that conflict with the law, the rules of a fund, the regulations, the constitution or common law. Only if there was a lacuna in the law (a gap in the law, or a particular situation for which there is no applicable law), will the adjudicator b...
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