Retirement funds governance promises peace of mind

The recent changes made to South Africa’s Tax Administration Amendment Act, specifically governing retirement savings and reform, make perfect sense.
Explaining the newly implemented laws, Nicholson says there are three types of retirement funds, namely Pension fund, Provident fund and a Retirement annuity that are categorised in terms of tax deductibility.

From March 2016, it will move under one umbrella and together with both employee and employer contributions be allowed a 27,5 % maximum deductibility and capped at a maximum of R350, 000.00 per annum across all three funds.

Furthermore, all members of provident funds who are under age of 55 and whose retirement savings, as reduced by their “vested right” amount, is more than R247, 500.00 will be required to buy pensions / annuities using at least two-thirds of this amount.

The reason behind the legislative changes is to address the issue of active employees saving enough for their retirement.

The active employment population simply does not save enough through their work lifetime to retire comfortably and to sustain themselves with sufficient income even if they have spent years contributing. One of the reasons is that they withdraw during their work life instead of preserving funds.

While CRS Legislation acknowledges that the changes have received a mixed response from the broader public, it is important to remember only the provident fund contributions made after 1 March 2016, plus investment growth thereon, for members younger than 55 years old will be subject to the new rules.

The R247 500 (which is referred to in the industry as the de minimis amount) applies to each fund as a separate entity (i.e. per fund). The concept of pensionable salary in terms of tax purposes has fallen away and will now be based on the member’s taxable income or gross employment income. Also, the funds will still base the actual contribution on a pensionable base as registered in the Rules of the particular funds.

Impact on the pocket

The mixed response to these changes in the market have been exacerbated by misunderstanding by some employees and scepticism over what will happen to net salaries, as well as condemnation by trade unions.

The immediate implication of the legislation for people at large is exclusively around preservation.

Prior to the newly implement legislation with a provident fund one could access 100% of capital in cash or annuity with full flexibility.

The reality is that any provident fund member will now be able to deduct their contribution so they may increase their take home slightly and at retirement they will now have to purchase annuity with up to two thirds of the contributions they have made post 2016.

Her advice is split between those with funds currently in place and those just starting the journey. For the former group, their money is safe and nothing has changed other than one will now have to use the funds for what it was intended for. Those in the latter group will have an opportunity to be part of the ‘new generation’ and fully embrace the concepts of preservation and auto-saving.

Nicolette Nicholson is the Head of CRS Legislation.

Non-compliance with prescribed mode of acceptance

It is trite law that, as a general rule, no special formalities are required for the conclusion of an enforceable agreement save for those required by law or imposed by the contracting parties.
The courts are increasingly faced with disputes on whether an agreement exists in circumstances where the parties fail to comply with a prescribed mode of acceptance. (See Lepogo Construction (Pty) Ltd v The Govan Mbeki Municipality [2015] 1 All SA 153 (SCA) and Bosch Munitech (Pty) Limited v Govan Mbeki Municipality [2015] 4 All SA 674 (GP).

In the Bosch case, the ultimate question was whether the formalities for the acceptance of the offer were complied with in a manner resulting in a binding agreement between the parties in accordance with the prescripts of the tender process and the tender documents. The tender documents required the respondent to indicate acceptance of the offer by signing the acceptance part of the form and returning one copy of the document to the applicant before the end of the period of validity stated in the tender data, “whereupon the tenderer becomes the party named as the contractor in terms of the conditions of contract identified in the contract data”. The respondent, however, did not sign the acceptance part of the form nor did it return a copy thereof, duly signed to the applicant before the end of the period of validity.

The provisions of the tender documents were clear and unambiguous in that an offer had to be made and accepted in accordance with its formalities, and notice of acceptance had to be given within the specified validity period. Any deviations had to be recorded in the schedule of deviations, failing which they would be invalid. Moreover, the tender documentation expressly provided that the contract would only come into effect “on the date when the tenderer receives one fully completed original copy of this document, including the schedule of deviations”. The applicant deviated from the proper tender process and did so at its own peril.

The court held that where the mode of acceptance in a proposed contract is stipulated, it is that mode that must be followed before a contract is concluded. Non-compliance with formalities imposed by one of the parties results in the nullity of the contract. Where a contract is not concluded between the parties because of non-compliance with the prescribed mode of acceptance, no contractual civil obligation (vinculum juris) exists and the parties may not assert the contractual remedies available under the flawed agreement. Performance rendered in terms of a formally defective agreement is regarded as having been made without legal ground (sine causa), and such performance is recoverable by means of an enrichment action and not by contractual remedies.

Non-compliance with prescribed formalities, whether imposed by the parties or by statute, results in the nullity of the transaction.

Thabile Fuhrmann and Vincent Manko, Dispute Resolution practice and services, Cliffe Dekker Hofmeyr.

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