Reflections on transformative pension adjudication
Authors Mtendeweka Mhango, Ntombizozuko Dyani-Mhango
Affiliations: Adjunct Professor, Nelson Mandela School of Law, University of Fort Hare; Associate Professor, School of Law, University of the Witwatersrand
Source: Industrial Law Journal, Volume 38 Issue 4, 2017, p. 2173 – 2200
This article examines the concept of transformative adjudication and whether the judiciary and the pensions fund adjudicator have engaged in such adjudication in relation to the jurisdictional challenges faced by the pension funds adjudicator. Whereas legislative amendment of the Pension Funds Act has been the traditional means used to solve the major jurisdictional problems faced by the adjudicator, we argue that through transformative adjudication South Africa can overcome these jurisdictional difficulties. We highlight a few decisions that are progressive and others that are regressive in advancing transformation. We observe that there is an emerging pension jurisprudence that has had a positive practical effect in broadly constructing the adjudicator’s jurisdiction thereby helping to transform South Africa’s pension funds industry. We argue that the adjudicator has an obligation to expand on this jurisprudential trend.