The Retirement Funds Institute of NAMIBIA (RFIN) hosted a meeting on 11 November 2021 between its members and NAMFISA. The meeting was called following a letter sent to NAMFISA under RFIN’s banner, to address various matters relating to NAMFISA declining applications by various funds to register or amend rules. Since the beginning of 2021, NAMFISA has been declining most of the rules submitted to it, especially by umbrella pension funds. The reasons mostly cited for the declines have mainly been due to NAMFISA regarding the rules as not being compliant with certain sections of the Pension Funds Act. The main sections under question were:
- Perceived non-compliance with Section 11 (d) of Pension Funds Act (The rules of a fund shall contain provision regarding the conditions under which any member or other person may become entitled to any benefit and the nature and extent of any such benefit)
- Perceived inconsistencies with Section 5 (1) (a) of PFA (fund trustees perceived to be abdicating decision making)
- Perceived non-compliance with Section 10 of PFA (Act prohibits Funds from carrying on any business other than the business of a pension Fund)
The above sections of the Pension Funds Act have been used by NAMFISA to argue that the benefits usually insured with insurance companies (such as benefits upon the death of a member or disablement benefits) should not be provided subject to insurer terms and conditions. It is to be noted that since time in memory, such benefits have been provided by pension funds subject to insurer terms and conditions. The rules referred to such terms and conditions and the insurance policy with terms was provided to the pension fund.
At the meeting of 11 November, NAMFISA was represented by its CEO - Mr Kenneth Matomola, deputy CEO - Ms Erna Motinga, General Manager: Pension Funds & Friendly Societies – Ms Lovisa Namandje-Indongo, and various NAMFISA legal representatives.
What follows below are selected points as noted from the meeting.
Mr Sydwill Scholtz of RFIN opened the meeting and introduced in the issues that needed to be discussed and requiring feedback from NAMFISA. After allowing statements from industry representatives, he invited Mr Matomola to respond to the issues raised.
Mr Matomola subsequently took the floor and stated the following points in summary:
- He humbly admitted that there was a supervisory oversight on the part of NAMFISA. The oversight led to them approving rules since time in memory and permitting a practice in the industry that the law was strictly clear about. He assumed full responsibility on behalf of NAMFISA and extended his apology.
- He indicated that going forward, the recently promulgated Financial Institutions and Markets Act (FIMA), which is expected to come into operation from 1 October 2022, is a lot clearer on the matters and did not expect the problem to be perpetuated.
- The predicament that NAMFISA currently finds itself in as Regulator, is to consider what to do with all the funds that are sitting with rules approved on the incorrect basis. He invited suggestions from anyone to guide the Registrar on what to do, but otherwise indicated that they are currently busy applying their minds to the matter. NAMFISA will inform the industry soonest regarding the matter.
- Mr Matomola made it clear that NAMFISA will not approve any further rules on the same wrong basis that has been overlooked in the past. They will not condone or perpetuate the wrong any longer, despite appreciating the business implications and dilemma those affected by this decision will be faced with. Mr Matomola referred to a previous NAMFISA Appeals Board ruling and inferred that NAMFISA may be found wanting should they further perpetuate their wrong, especially after learning about it.
After allowing for comments and questions, Mr Matomola admitted and agreed that the insurable benefits provided to members over the years, played a significant economic and social role and filled a huge void. Mr. Matomola called on industry bodies such as RFIN (mainly representing pension funds) and NASIA (representing insurance companies amongst others), to suggest relevant amendments to the soon to be published Standards and Regulations to FIMA. NAMFISA is not against the provision of these insurable benefits being provided as before but would like it to be in a manner that ensures that NAMFISA’s concerns are addressed, members are not impacted negatively in any way and that industry can continue to carry on business successfully as has been the case up to now.
The legal representative from NAMFISA was adamant that the Pension Funds Act’s sections referred to as Section 11(d) above, was reduced to a Standard under FIMA and was all that required a revision. Some of the industry experts however suspect that new law itself (FIMA) may also have to be amended in addition to the Standards.
Asked when NAMFISA will inform the industry and implored to do so rather urgently, Mr Matomola responded that the legacy issue is enjoying his urgent attention, however it is challenging, and he needs to ensure that he deals with the predicament in a way that does not adversely affect entitled members and beneficiaries.
Informed about the fact that the Registrar continues to approve rules of some funds, whilst declining that of other funds on the same basis, Mr. Matamola accepted full accountability for further inconsistencies and undertook to ensure it does not repeat itself.
The meeting was conducted in a conducive, constructive, and professional manner. RFIN and NASIA were tasked to constitute committees to provide their proposals for relevant amendments to deal with this matter as soon as possible.
At the time of writing, the industry had not yet received the communication from NAMFISA on how funds currently using incorrectly worded rules would be dealt with.
Important notice and disclaimer
This article summarises the understanding, observation and notes of the author and lays no claim on accuracy, correctness or completeness. Retirement Fund Solutions Namibia (Pty) Ltd does not accept any liability for the content of this contribution and no decision should be taken on the basis of the information contained herein before having confirmed the detail with the relevant party. Any views expressed herein are those of the author and not necessarily those of Retirement Fund Solutions.