Dear reader

In this newsletter we comment on the global investment markets; we provide guidelines to trustees on applying due diligence to SPV's and UIM's, we conclude on discussions at a recent RFIN breakfast session with regard to tax and benefits, we report on the latest with regard to SIH reporting and unlisted investments, we introduce you to Günter Pfeifer, we report on staff movements at RFS and we provide a number of links to interesting and relevant articles in various news media.

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Regards

Tilman Friedrich

Tilman Friedrich's Industry Forum

Benchtest Monthly 10.2014

In October the average prudential balanced portfolio returned 0.12% (Sep: 0.25%). Top performer is Prudential (0.91%); while Allan Gray (-1.50%) takes the bottom spot. For the 3 month period Stanlib takes top spot, outperforming the 'average' by roughly 1.1%. On the other end of the scale EMH Prescient underperformed the 'average' by 0.9%.

Our graph of the day below depicts the R: US$ exchange rate as the blue line, the scale shown on the right hand of the graph, overlaid by the SA Allshare index as red line, its scale shown on the left side of the graph. This graph shows a few interesting trends. Firstly it shows a close correlation between a weakening Rand and a growing Allshare index.


The trend lines overlaid on the two lines run virtually parallel. This means in broad terms the Rand has been weakening virtually at the same rate as the rate of growth of the SA Allshare index, over the period of over 27 years. A foreign investor on the trend line would thus have had no return on his investment in the SA Allshare index other than dividends (averaging 3% over the past 27 years). Bringing inflation into this picture, from a foreign investor perspective US inflation averaged 2.8% p.a. over the past 27 years), his return over this 27 year period would have been very close to zero. Not exactly a convincing investment case for a US investor.

Of course, right now a foreigner who invested in March 1987 would have had the index return him 6% per annum in US$, had he sold his investment in October 2014, and this excludes dividends. Based on the trend lines, the Rand is significantly undervalued while the Allshare index is significantly over valued right now, however the investor would currently receive more US$ for his investment in the SA Allshare index then he would if both indices were to return to their trend line. For both foreign and local investors this indicates that it should be a good time to exchange an investment in the Allshare index with an offshore investment.

Read our full commentary, find out how these and other developments impact on our investment views and download Benchtest 10.2014, here...

Service or product provider due diligence and SPV's

The purpose of a due diligence assessment is to consider the key risks presented by a product or a service provider. These risks can be classified into the following broad categories:

• Poor performance
• Risk or performance volatility not in line with expectations
• Operational failure of service/product provider
• Financial failure of service/product provider
• Regulatory non-compliance of service/product provider
• Fraud by service/product provider

Areas that need to be addressed through a due diligence assessment of the SPV and of the UIM should cover the following areas:

• Regulatory compliance
• Governance structures
• Financial soundness
• Operational reliability
• Investment management

Regulatory compliance

Regulation 28 directs that funds shall invest a minimum of 1.75%, and a maximum of 3.5%, of the market value of its investments in unlisted investments in accordance with regulation 29. Regulation 29 is a globally unique framework for unlisted investments by pension funds. It defines the new concepts of 'special purpose vehicle' (SPV) and 'unlisted investment manager' (UIM) and directs that an SPV must be managed by an UIM. For these entities, the regulation prescribes the requirements for registration, management, ownership, powers, restrictions and duties, reporting and manner of operation.

Regulatory compliance requires that:

• Both, the SPV and the UIM are registered by Namfisa before any capital is committed;
• Both, the SPV and the UIM remain registered while holding capital of the fund;
• The fund has entered into a subscription agreement with the SPV setting out the committed capital and the draw-down period afforded to the SPV, subject to this being limited to 24 months;
• The fund maintains an investment of no less than 1.75% and no more than 3.5% of the market value of its investments in the SPV/s throughout;
• Where the investment initially comprises only of a commitment of capital, the capital is actually drawn down within 24 months or is committed to another SPV prior to the expiry of this period.

If any of the afore going conditions cannot be met through circumstances considered out of the control of the trustees at any point in time, an application for extension or exemption is made to and granted by Namfisa.

Governance

Regulation 29 prescribes the governance structures of an SPV and a UIM.  Once, and for as long as, an SPV and the UIM are registered, the trustees can accept that Namfisa has ascertained that sound governance structures are in place for these entities. Sound governance measures, however further require that:

• Regular investment reporting is received from the UIM on the investments of the SPV;
• The investment reports received do not evidently indicate a divergence of the SPV from the initial intentions and investment framework, on the basis of which the trustees selected the SPV;
• Adequate professional indemnity and fidelity cover is maintained by the SPV and UIM;
• Acceptable provision for liquidity is offered by the SPV;
• Proposed fee structures are reasonable;
• Any costs directly borne by the SPV are acceptable;
• Subscription agreement is acceptable and sound;
• Management agreement between UIM and SPV is acceptable and sound;
• SPV management is appropriately qualified and experienced to maintain due care, skill and diligence.

Financial Soundness

Regulation 29 establishes the SPV as a separate legal entity, namely either as a public company, a private company or a trust. The UIM also must be constituted as a public company or as a private company. SPV's will in many cases be established with a fixed investment term due to the nature of the underlying investments, where investment returns will largely only be realised once the SPV exits the investment. The investment process entails funds to first commit capital, Only then will the UIM start to invest. Once the capital has been committed, the investing fund has no further influence on the investment decisions of the UIM.

The risk of the investing fund lies in the capabilities of the UIM to choose projects and investment objects that will produce fair risk adjusted returns and in the SPV not managing the relationship with due care and skill to ascertain that the investing funds' capital is managed diligently by the UIM.
The investing fund's concern about financial soundness should primarily be focused on selecting the right SPV/s and the UIM/s in terms of the UIM/s investment capabilities and the SPV's capabilities to monitor the UIM.
When choosing an SPV and its UIM, sound governance in this regard requires that:

• The financial position of the UIM is satisfactory;
• Assets under management of the UIM provide acceptable comfort of its sustainability;
• Client base of UIM is diversified and provides acceptable comfort of its sustainability.

Operational Reliability

As elaborated in the discussion on 'financial soundness' above, once a fund has committed capital to an SPV, its fortunes are in the hands of the SPV and its UIM. The investing fund's concern should in this regard thus also be about selecting the right SPV/s and the UIM/s in terms of the UIM/s investment capabilities and the SPV's capabilities to monitor the UIM.
When choosing an SPV and its UIM, sound governance in this regard requires that:

• Transparent and comprehensible reporting is provided regularly;
• The UIM has appropriate skills to manage the business of the SPV in terms of accounting, valuation of investments, formulation and administration of agreements;
• The UIM has appropriate systems to manage the SPV;
• Operational policies of the UIM are sustainable and support the retention of key staff.

Investment Management

As elaborated in the discussion on 'financial soundness' above, once a fund has committed capital to an SPV, its fortunes are in the hands of the SPV and its UIM. The investing fund's concern should in this regard thus also be about selecting the right SPV/s and the UIM/s in terms of the UIM/s investment capabilities and the SPV's capabilities to monitor the UIM.
When choosing an SPV and its UIM, sound governance in this regard requires that:

• Proposed investment projects and investment objects of UIM are acceptable;
• Investment track record of UIM is acceptable;
• Investment plan of SPV is acceptable;
• Investment staff of UIM is appropriately qualified and experienced.

Having provided an extensive process and checklist, good governance dictates that the attention trustees apply to unlisted investments should be commensurate with the attention they apply to the 'conventional' investments of their fund.
 

RFIN breakfast session on tax issues affecting pension funds

The Retirement Funds Institute recently hosted a breakfast session at Hotel Thüringer Hof. The main speakers at the session were Ms Nadine du Preez from the legal department of Inland Revenue and Ms Gerda Brand from Deloitte. From the discussions and comments we have recorded the following relevant conclusions.

1. Tax debts and section 37A prohibition to deduct from benefit:
   1. The Income Tax Act overrules the Pension Funds Act as a matter of principle and not because it is a younger act;
   2. Despite the fact that the Income Tax Act distinguishes between a tax debt (s 83(2)) and income tax, the definition of income tax covers all taxes referred to in the Income Tax Act;
   3. The reference in s 37A to the prohibition to deduct any debt is to be read as being any debt other than income tax.  
       
2. Transfers to another approved fund upon retirement from a fund:
   1. Inland Revenue's position currently is that a tax directive must be obtained before an amount is transferred from a fund to another approved fund. The reason is that such an amount has accrued to the member and is 'gross income' in the first instance, but is then exempted from tax in terms of s 16.1(z).
   2. By deduction, any amount that is not 'gross income' does not require that a tax directive is requested before payment is affected. Critical in the determination of whether or not an amount has accrued to a person  and is 'gross income', is to determine whether the person has an unconditional entitlement to the amount
   
   Our view:
   Where a member is required or allowed to purchase a pension outside the fund from which he/she retires, the rules of the fund would prescribe that 2/3rds has to be transferred to purchase a pension from another approved fund. The member clearly has no unconditional entitlement to the benefit. Consequently the benefit has not accrued to the member, the amount does not constitute 'gross income and there is no need to obtain a tax directive.
    
3. Income Tax Rulings:
   1. An Income Tax ruling only applies to the party to whom it is issued and is only relevant to a situation mirroring that spelt out in the request for the ruling.
   2. The party to whom a ruling was issued must comply with this ruling in all situations mirroring that described in the ruling. 
       
4. LAAN ruling regarding the transfer of capital from an approved fund to an insurer to purchase an untied annuity. This ruling requires that -
   • the rules of the transferor fund must specifically provide for such a transaction;
   • that the annuity must be compulsory, non-commutable and payable for and on the lifetime of the retiring member;
   • the annuity may not be transferred, assigned, reduced, hypothecated or attached by creditors as contemplated by the provisions of Section 37A and 37B of the Pension Funds Act.
   
   Unfortunately no clarity was provided in particular -
   1. whether such transfer is consistent with the Pension Funds Act, in view of the fact that rules cannot overrule the Act;
   2. by whom and in which manner the above conditions imposed by Inland Revenue in the ruling must be enforced and policed.
       
5. Tax directives do not need to be requested on amounts that have not accrued to a pension fund member and that do not constitute gross income or that are tax exempt.
   1. The following amounts are tax exempt and no directive needs to be obtained:
      1. Pension fund retirement commutation;
      2. Pension fund lump-sum benefit where no portion of it would be taxable as less than 49% is paid in cash;
      3. Pension fund lump-sum ill-health benefit.
   2. In the case of a death benefit from a pension fund:
      1. The estate of the deceased had no entitlement and therefore the benefit has not accrued to the estate.
      2. Once the trustees have resolved how to distribute the benefit, the payment of a benefit to a beneficiary in terms of such resolution constitutes an unconditional entitlement of the beneficiary, whether this is paid to the beneficiary, a guardian of the beneficiary or a trust for the benefit of the beneficiary. Before such an amount is paid out, a tax directive must be obtained. No arrears tax owed by the deceased can be deducted from such payment but only tax owed by the beneficiary.
         However, if the trustees in terms of the rules of the fund resolve to pay the benefit to an insurer to provide an annuity to the beneficiary, going by the ruling to LAAN, the benefit does not accrue to the member. No tax directive has to be obtained for such transaction.

Death benefits, housing loans and income tax

In the preceding topic we have set out our conclusions with regard to a number of tax issues that have presented challenges to fund administrators in the past.

In this topic we will analyse the situation where a pension fund member, who has a pension backed housing loan from a bank, and has tax arrears, passes away.

The first question to be answered is what is the 'benefit' in terms of the Pension Funds Act and what is the 'benefit' in terms of the Income Tax Act.
Considering the Pension Funds Act first, the rules would typically quantify the death benefit, but the rules are subject to the Pension Funds Act. As pointed out in the preceding topic, income tax can be deducted in terms of Section 37A while section 37D makes provision for other deductions such as a housing loan guarantee given by the fund to a bank. The beneficiary's or beneficiaries' 'entitlement' (per Oxford English Dictionary definition of 'benefit') is not the amount quantified as the death benefit but rather that amount quantified in the rules, less all deductions allowed in terms of the Pension Funds Act.

Considering the Income Tax Act, the benefit is the amount before any income tax deduction. If the deceased pension fund member had a loan at the date of death and this loan is redeemed from the pension fund benefit payable in consequence of the death of the member, the deceased would have become unconditionally entitled to that portion of the pension fund benefit. Consequently, income tax would have to be determined on the loan amount that was redeemed as being the net after tax amount on which tax is to be determined. No further payments will be made to the deceased and his/her estate. As the result Inland Revenue cannot deduct any arrear tax owed by the deceased from the balance of the benefit after deduction of PAYE in respect of the housing loan redeemed.

Conclusion:

The benefit available for distribution to beneficiaries in terms of the rules thus comprises of the death benefit as quantified in the rules less PAYE on any housing loan balance redeemed and less the amount paid to the bank to redeem the housing loan. Any redeemed housing loan balance, is a taxable benefit in the hands of the deceased as the deceased became unconditionally entitled to this benefit. The deceased is however, not entitled to any other benefit and no tax owed by the deceased can be levied against the balance of the benefit and this applies to both pension as well as provident funds. Once the trustees have allocated the available capital to a beneficiary or beneficiaries and the fund is to pay the allocated amounts, these allocated amounts become taxable in the hands of the beneficiary. In this regard is to be noted that Inland Revenue ruled that a maximum of 34% of these amounts (from a pension fund, as opposed to 66.7% in case of a provident fund) are taxable, the balance being tax free.

Meet the team that will lead RFS into the future

On the occasion of our 15 year anniversary function the company's management team was introduced to the public. In the next few newsletters we will introduce the team. In this issue, meet Günter Pfeifer, Director Operations.



Günter joined our team in February 2009, to assume responsibility for the Benchmark Retirement Fund. Günter distinguished himself with a cum laude in his final year of Bachelor of Commerce (Accountancy) studies, after which he qualified as a chartered accountant. After completing his articles with Deloittes, he was seconded to their Stuttgart office in Germany for 1 year. He left the audit profession in August 1999 as audit manager, to join Fedsure as portfolio manager. He left Fedsure's successor Channel Life in the position of financial manager early 2003 to join De Beers Marine. Through De Beers Marine he completed the De Beers Program For Management Development at Gordon Institute for Business Science, and the Advanced Development Program at the London Business School. Since he took on the responsibility for the Benchmark Retirement Fund the assets of the fund grew from just under N$ 400 million to just over N$ 1.5 billion.

RFS awards N$5,000 bursary

Lahja Hailulu from Rand Merchant Bank won the NS 5,000 bursary offered at the RFIN Expo and the Annual Member Meeting. Ms Hailulu said she is very grateful for the opportunity and will use the amount to fund a part of her daughter's school fees in 2015. Pictured FLTR: Günter Pfeifer (RFS Director of Operations), Lahja Hailulu (RMB), Tilman Friedrich (RFS Managing Director).

RFS Staff movements

We would like to extend a hearty welcome to Leande de Bruyn who joined us at the beginning of June 2014 from Mediclinic where she was HR officer. Leande matriculated at Academia Secondary School in 2005. She joined Alexander Forbes directly after school and gained some fund administration experience over a period of 3 years. She resigned in 2009 to join Mediclinic as a hospital secretary and was transferred to the HR department in 2011. Leande adopted her new home, and found her feet in fund administration, very quickly and is now responsible for a large portfolio of employers participating in the Benchmark Retirement Fund. We look forward to enjoying Leande's company for many years to come!

Unfortunately we will also see Whitney de la Harpe, a member of our Benchmark team, leave us at the end of November to look after her family on a full-time basis. We wish Whitney all the best for the future!

News from Namfisa

Statement of Investment Holdings - October update

All principal officers have received the latest version of the statement of investment holdings report from Namfisa on Monday 3 November. The format of this report has changed once again. The due date for submission of the reports for each quarter of 2014 remains 28 February 2015.

Principal officers are urged to arrange that the completed report from their asset consultant is forwarded to them on or before 16 January 2015 (first 3 quarters) and 6 February 2015 (quarter 4).

Funds are reminded that an investment held in a fund policy issued by a long-term insurance company is deemed not to be an asset of the fund and does not have to be reported on by the fund.

RFS is aiming to complete the 'Internal Asset Allocation' section for the first 3 quarters of 2014 and submit these to our clients by not later than Friday 30 January 2015 and for the last quarter of 2014 by not later than 13 February 2015, provided of course the fund has arranged with its asset managers to provide the required information to us by not later than 16 January 2015 (first 3 quarters) and 6 February (quarter 4).

This should give you sufficient time to our clients to submit the report and the declarations on each sheet to Namfisa before the due date.
Should any of these dates no longer be feasible we suggest that clients consider applying to Namfisa for extension.

Unlisted investments - October update

To date only Omaanda Capital was registered as Unlisted Investment Manager (UIM). No special purpose vehicle was registered yet that is accessible to private pension funds. We suggest that until at least 3 SPV's have been registered, funds should not take any decision on where to invest.

Considering the process that funds will have to follow to achieve compliance by 30 June 2015, it would now already appear very difficult if not impossible, to meet any reasonable implementation schedule, even if 3 Special Purpose Vehicles were already approved to invest in now.

Some asset managers whose clients invest in their unit trusts have expressed their desire to assist their clients by employing their unit trusts to invest in an SPV on behalf of their clients, for their clients to comply in this manner. However, there are a few legal impediments that prevent this route to be followed and it is highly unlikely that these impediments will be removed by the regulator within any reasonable time frame.

On this basis we suggest that funds apply now for further extension to at least end of September 2015. In the meantime funds should consider the process to follow in achieving compliance through a direct investment in an SPV/s.

News from the market

NMG loses local manager

Kobus Crous, long-time manager of Jacques Malan, later NMG Namibia operation will leave NMG at the end of November to take up new challenges.

Together we have been serving a significant portfolio of pension funds in Namibia.

We are sorry to see Kobus leaving as partnering service provider and wish him all the best in his future endeavours. At the same time we look forward to continue serving our mutual clients in the same way they have become used to over the past number of years, to their expectation and satisfaction.

National Pension Fund goes to the board

The Economist carried the above headline above on 7 November which provides the latest state of affairs with regard to the mooted implementation of a National Pension Fund.

Read the full article by Ogone Tlhage in the Namibia Economist, here...

Media snippets
(for stakeholders of the retirement funds industry)

Dividends play a vital role for investors

In this article the author makes the point that companies which reliably grow their dividends, tend to outperform over time. He cites an investment of R 100,000 in Clicks in 1996 that would have bought 25,641 shares and would have earned a dividend of R 1,840 in the first year. The same number of shares would have earned a dividend of N$ 43,000 in 2013. This is an annual growth in income of 20.4% over a time when inflation average 6.1%.

Download the article by Brian Vambe in Sanlam's Funds on Friday, here...

Will my retirement capital last if I draw 4%

This article reports on a study done by Michael Summerton of Allan Gray on 84 rolling 30 year periods. It concludes that "If you can manage by initially drawing 4% of your retirement capital without suffering major lifestyle adjustment, increase the rand value of your withdrawals only by inflation, and maintain a suitable asset allocation over time your money has an excellent chance of outliving you."

Read the article by Ingé Lampbrecht in Moneyweb of 19 October here...

Section 37D deductions and payment to an employer

This article reports on cases dealt with by the SA Adjudicator where the employer wanted the fund to deduct from a member's benefit in terms of section 37D, on the grounds provided for in this section. This section defines the following preconditions for an employer claiming against a member's pension benefit:

• There must be a written admission by the member that he owes the employer money as the result of his theft, fraud, dishonesty or misconduct; or
• The employer must have obtained judgement against the member for theft, fraud, dishonesty or misconduct and for the member to compensated the employer for the loss or damage caused;

The first case is that of Complainant vs Protea Technology Retirement Fund, NBC Administration Services (Pty) Ltd and Protea Technology (Pty) Ltd.  In this case the employee retired and accepted another job with a competing employer during his notice period. The employer labelled this breach of the restraint of trade as amounting to misconduct. The Adjudicator acknowledged an earlier court ruling that the member was in breach of his restraint of trade clause in his employment contract. However the adjudicator found that a breach of restraint of trade is not misconduct and cannot justify withholding payment of a withdrawal benefit.

In another case, S vs Corporate Selection Retirement Fund, S accepted employment with another employer while still in service of the previous employer. The employer argued that this had caused loss and damage and opened a case against the member. The Adjudicator concluded that S's conduct constituted a breach of contract but not theft, fraud dishonest or misconduct.

In the third case of K vs Oasis Crescent Retirement Fund. In this case the employee failed to observe a condition of an agreement with the employer to remain in service for at least 3 years after his interest free home loan from the employer has been fully repaid. The employer intended to recover the backdated interest from the member's pension fund benefit. The member argued however, that the loan was not granted by the employer but by a wholly-owned subsidiary of the employer. The Adjudicator found that S 37D requires the fund to have provided a guarantee to a third party that granted the loan.  Because not such guarantee was provide the fund acted unlawfully in withholding the complainant's withdrawal benefit.

Read the full article by Pho Komongoe, legal adviser Alexander Forbes Financial Services, in Pensions World June 2014, here...

Media snippets
(for investors and business)

Directors and reckless conduct: disregarding standards of care

"There has hardly been a day that goes by where the media headlines grip the attention of citizens, announcing yet another case of poor governance practices, or a director engaging in reckless business conduct."

In this article reference is made to the Deepwater Horizon oil spill disaster of 2010 and how this was cause reckless conduct. Closer to home an investigation is currently underway into alleged reckless and negligent trading by the board of African Bank.

"For companies to avoid reckless conduct, it is important that they recognise the early warning signs which if left unchecked, could cause substantial harm to the company and its stakeholders. There are generally four traits -- as general indicators -- that may indicate a propensity for reckless conduct.  They are:

1. lack of due concern for consequences
   • individuals who 'shrug off' the potential consequences (or cost) resulting from a failed decision are more prone to reckless conduct than those who carefully consider and show due concern for the potential outcome of their decisions
2. impulsive behaviour
   • individuals who make decisions quickly without doing the necessary research are more prone to recklessness than those who are more disciplined during the decision-making process
   • individuals who have a propensity for engaging in reckless conduct are more likely not to follow a plan and will act impulsively without keeping in mind the bigger picture
3. spirit of denial
   • individuals who make light of the potential for failure (or choose to deny failure) are more prone to reckless conduct
   • individuals who make excuses for why a decision did not succeed (instead of facing the reality of their choices) indicates a potential for reckless conduct
4. sensation-seeking behaviour
   • individuals who engage in sensation-seeking behaviour in their everyday lives and who thrive on high-stakes decision-making and chaotic atmospheres may indicate a propensity for reckless decision-making."

This is another must read for anybody who serves on a board of directors (or trustees for that matter). Download the article by Terrance M Booysen in InsuranceGateway here...

Ten stupid rules that drive great employees away

In this article the author makes the statement "the more policies, the less passion you'll get from the team, the less passion the less exciting the team's performance will be. The less exciting the performance, the lower the profits will be." Here are the 10 stupid rules:

1. Attendance policies: salaried people don't need attendance policies.
2. Frequent flyer policies: those miles are theirs, not their employer's.
3. Dress code rules: rather talk to an employee face-to-face. Sticky human topics are part of the job.
4. Bell curve performance reviews: these only encourage the hiring and retention of so-so employees, or worse.
5. Bereavement leave policies: don't write policies towards people you wish you hadn't hired. Trust your employees and they'll trust you back.
6. Approvals for everything: Trust people you chose to hire to do simple things without written approval from a manager, like ordering a new stapler.
7. Disciplinary rules: if someone makes a mistake one can have a conversation about it to establish what went wrong, probation or a written warning will do no good.
8. Feedback mechanisms: most employees would be happy to tell you face to face what is right and what is wrong; you just have to ask them and do not need a survey for this.
9. Hiring processes: write simple, comprehensible job descriptions, treat applicants like valued collaborators and make the interview process fast and friendly.
10. Forced ranking: stack ranking is not deserved by your staff, all people are unique and whole in themselves.

Read this useful advice by Liz Ryan, CEO of Human Workplace in LinkedIn, here...

And finally...

"Wealth consists not in having great possessions, but in having few wants."
~ Epictetus

Tilman Friedrich is a qualified chartered accountant and a Namibian Certified Financial Planner ® practitioner, specialising in the pensions field. Tilman is co-founder, shareholder and managing director of RFS, retired chairperson, now trustee, of the Benchmark Retirement Fund.