would need to exist, the court in Tek explained the implications of that rule in the following way: During the continuance of the fund the employer is certainly accorded a ‘[21] good deal of say by rule 19.5.2 but there are limits to it. The limitations imposed seem to me to be designed to ensure that the objects of the fund are realized. Why else would the trustees have to play a role by making appropriate recommendations and the power of the employer be made subject to the limitations of the Pension Funds Act and the Registrar’s practice? It is difficult to reconcile those provisions with any suggestion that the employer is free to take a decision which is solely in its own interests but not that of the fund and its members. If it had been intended to confer upon the employer an unfettered power to do what it liked with an identified surplus, I would have expected the framers of the rules to say so clearly and unambiguously. In so far as it was contended in the pre-litigation correspondence that any surplus within the control of the employer “lies company” in the sense that the employer has uninhibited access to it, I consider the contention to be wrong. [22] That does not mean that the employer can derive no benefit whatsoever from the existence of a surplus. A recommendation by trustees that a surplus be retained to counter a perceived risk of future adverse volatility in the investment environment, if accepted by the employer, will benefit the employer in as much as it will not be liable to make contributions to the fund for so long as the surplus exists. But that be a fortuitous and incidental advantage flowing from a recommendation made by the trustees in the interests of the fund and its members. In so recommending the trustees would not be acting in breach of their fiduciary duties nor would they be acting ultra vires. Nor would the employer be acting in bad faith towards its employees in accepting the recommendation.’ As was also pointed out by the court in in the case of a defined benefit Tek, fund such as the present, the employer’s obligation to contribute arises only when the need arises as is determined by the fund’s actuary. In the case of a surplus,
would need to exist, the court in Tek explained the implications of that rule in the following way: ‘[21] During the continuance of the fund the employer is certainly accorded a good deal of say by rule 19.5.2 but there are limits to it. The limitations imposed seem to me to be designed to ensure that the objects of the fund are realized. Why else would the trustees have to play a role by making appropriate recommendations and the power of the employer be made subject to the limitations of the Pension Funds Act and the Registrar’s practice? It is difficult to reconcile those provisions with any suggestion that the employer is free to take a decision which is solely in its own interests but not that of the fund and its members. If it had been intended to confer upon the employer an unfettered power to do what it liked with an identified surplus, I would have expected the framers of the rules to say so clearly and unambiguously. In so far as it was contended in the pre-litigation correspondence that any surplus “lies within the control of the employer company” in the sense that the employer has uninhibited access to it, I consider the contention to be wrong. [22] That does not mean that the employer can derive no benefit whatsoever from the existence of a surplus. A recommendation by trustees that a surplus be retained to counter a perceived risk of future adverse volatility in the investment environment, if accepted by the employer, will benefit the employer in as much as it will not be liable to make contributions to the fund for so long as the surplus exists. But that be a fortuitous and incidental advantage flowing from a recommendation made by the trustees in the interests of the fund and its members. In so recommending the trustees would not be acting in breach of their fiduciary duties nor would they be acting ultra vires. Nor would the employer be acting in bad faith towards its employees in accepting the recommendation.’ As was also pointed out by the court in Tek, in the case of a defined benefit fund such as the present, the employer’s obligation to contribute arises only when the need arises as is determined by the fund’s actuary. In the case of a surplus,
Rosing%20Urainium%20v%20Former%20Members%20of%20Rossing%20Pension%20Fund%20(SA%2030%20and%2032%20-%202016)[2017]%20NASC%20(30%20June%202017).docx