|In this newsletter:
Benchtest 05.2020, chairperson affidavit impractical and more...
Unsuspension of operation of laws suspended during lockdown
If you have missed Proclamation no. 16 issued under the State of Emergency that suspends the operation of certain provisions in a number of laws, such as prescribed periods for certain legal processes, and provisions of the Labour Act relating to dismissal of employees, reduction of salary and forced leave, find the gazette here...
Find the proclamation in terms of which the operation of certain clauses of a number of laws were suspended here...
Find the proclamation revoking the suspension of the operation of certain clauses of a number of laws were suspended here...
NEF challenges the suspension of the Labour Act
The NEF sent out a circular on 3 June, wherein it informed its members “...about the current situation with regard to the litigation against the relaxation of the Labour Act as per the labour directives that were applicable to Stage 2 of the National State of Emergency and published in the Government Gazette (refer to preceding topic ‘Unsuspension of operation of laws suspended during lockdown’).
The legal team spent the entire day on Friday, 29 May at the High Court, presenting the case on behalf of NEF, as first applicant, and an additional five applicants representing businesses in the Tourism, Construction, Aviation, Transport and Printing sectors. The judges reserved judgement for 23 June 2020.
This still leaves employers who took labour decisions in contravention of the Stage 2 directives in an unsure position until judgement is known.
I also attach Proclamation 22, published 1 June 2020. The interpretation is that the Labour Act (Act 11 of 2007) as amended, is again fully applicable with effect from today.
The litigation came at great cost. Although some members have already contributed and in spite of us being in the process of lobbying to individual business owners for contributions, any further contributions towards the trust fund for legal expenses will be greatly appreciated...”
FIM Bill passes National Council
After its 3rd reading in the National Council, the FIM Bill was passed with amendments on 18 June. These amendments will now have to be considered by Parliament and may or may not be adopted by it. The amendments relate to typographical corrections only.
Pension fund governance - a toolbox for trustees
Registered service providers
If you want to find out whether your service providers are registered, or whether you need to establish directly from NAMFISA because the service provider does not appear on the list, use this link...
Check out our retirement calculator
In ‘Tilman Friedrich’s industry forum’ we present:
In ‘News from RFS’ we draw attention to ‘Important administrative circulars issued by RFS’ since the previous newsletter.
In ‘News from NAMFISA’ read about:
In ‘Legal snippets’ read about –
...make a point of reading what our clients say about us in the ‘Compliments’ section. It should give you a good appreciation of who and what we are!
As always, your comment is welcome, so open a new mail and drop us a note!
Chairperson affidavit is impractical and inappropriate
RFS issued the following fund administration related circulars to its clients over the last four months. Should any client have missed any of these circulars, please get in touch with your client manager:
!Kharos Benefit Solutions - a new HR and payroll company launched
A new payroll company, !Kharos Benefit Solutions (Pty) Ltd, recently opened its doors for business, offering payroll and HR management solutions to small and medium-size employers for whom the maintenance of an in-house function is not cost-effective or viable. The backbone of the range of services offered by the company is the Symplexity software, a modular, web-based human resources and payroll software solution originating in South Africa. The name is the Damara/Nama word for our own Welwitschia or Tweebladkanniedood.
The company is jointly owned by RFS and Logos Consulting and is headed up by Harold Mbuende. Harold started his career at PWC in 2001, serving in various positions in tax and payroll administration and consulting. While with PWC, he obtained certificates in Value Added Tax and Income Tax from Unisa. He established its immigration department as manager of that department and was also involved in the establishment of its human resources department, progressing to the position of Manager: Human Resource Services, Immigration Services and Expatriate Services. He left PWC in 2013 to join Air Namibia in the position of Manager: Human Capital Administration and was later assigned additional responsibilities as Acting General Manager: Human Capital Management and Corporate Services. Harold is supported in the back-office by Mrs Lizette Fourie, who was seconded to !Kharos from Retirement Fund Solutions.
The board of directors of the company comprises of
Not only do we boast a dynamic team of industry experts with extensive experience but our offering is complimented by a cutting edge 21st Century futuristic Payroll & HR business software solution for the sole purpose of propelling your business beyond the current generation...”
!Kharos Benefit Solutions welcomes its first clients
!Kharos Benefit Solutions (Pty) Ltd is proud to announce its first appointments and extends a hearty welcome to these two new clients with the sincere with that this may be the beginning of a long mutually satisfying and beneficial relationship:
Consumer Credit Policy out for comment
NAMFISA circulated a new Consumer Credit Policy for comments on or before 31 July.
The ‘Executive Summary’ of the policy explains the purpose of the envisaged consolidated consumer credit legislation as follows “The regulatory and supervisory framework on contracts covering credit in Namibia is characterized by lack of a robust legislation that is effective in protecting consumers of credit against unfair market conduct. This is because the only credit extension subjected to market conduct supervision, although not with broad-based consumer protection principles is one extended by the banking and microlending institutions. Moreover, credit extended by these institutions is regulated through separate Acts, namely the Credit Agreements Act, 1980 (Act No.75 of 1980), the Usury Act, 1968 (Act No.73 of 1968), the Banking Institutions Act, 1998 (Act No. 2 of 1998) and Microlending Act, 2018 (Act No. 7 of 2018). On the contrary, credit extended by retailers, for example, is not supervised against unfair market conduct, although it is also a financial service instrument, resulting in fragmented regulation and supervision of consumer credit.
In recent years, a shallow and narrow scope of consumer protection on market conduct in the financial sector has stimulated a debate among public policy makers. The debate focused on a need for a broad-based financial consumer protection drive in the country. In this respect, the Minister of Finance under whom the Policy and subsequent Act will fall tasked the two financial sector regulators, (NAMFISA and Bank of Namibia) to enhance supervisory and regulatory oversight functions on credit agreements with natural and juristic persons. The gravity of the problem is amplified by the already high and increasing levels of household debt averaging above 85 percent of disposable income between 2013 and 2018, caused amongst others, by the poor business market conduct such as inadequate due diligence on affordability assessments...”
Suspension of requirement for chairperson affidavit
NAMFISA issued PF/PI/DIR/01/2020 “Suspension of Part of Paragraph 5.1 of Directive PI/PF/DIR/05/2015” on 4 June 2020.
The requirement that the principal officer of a fund must submit a signed affidavit by the chairperson of the board together with an application for registration of a rule amendment that may negatively affect members’ benefits (e.g. reduction of contributions) as per PI/PF/DIR/05/2015 is temporarily suspended. Instead, the board may by written resolution delegate the authority to attest such affidavit to the principal officer or any member of the board as per amended prescribed form.
Pension funds industry meeting postponed
The industry meeting set for 15 July has been postponed and the new date and time will be communicated accordingly.
Retirement funds and Covid-19: legal perspective on tricky questions – Part 1
Summary notes by Andreen Moncur, BA (Law)
SA based Pension Lawyers’ Association (PLA) held a webinar that illuminated a few interesting legal questions the answers to which were provided by prominent SA legal experts and have some relevance to Namibia.
Retirement funds: other interesting questions and answers – Part 2
By Andreen Moncur BA (Law)
In our dealings with NAMFISA we are regularly facing challenges posed by NAMFISA. Some of these we have put to Andreen Moncur. The questions and Andreen’s considered opinion on these are set out below.
Can a death benefit be paid in instalments?
Since the quantum of the benefit due to the dependant in urgent need can only be determined upon expiry of the 12 month period following date of death of the member, in my opinion the only manner in which the trustees can reasonably meet their obligation is to make one or more interim payments to the dependants of a portion of the full benefit that would be allocated to him or her in the event of no other dependants being identified subsequently and up to expiry of the 12 month period.
There are advantages and disadvantages to both.
We have let our children and grandchildren down...”