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  The Protection and Enforcement of Socio-economic Rights in South Africa

This research is a result of being sensitized to the tenets of the development of constitutional law and constitutionalism,after paticipating in two valuable conferences on constitutional law

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Isbn:1-934502-02-2
print:$200
ebook:$250

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This research is a result of being sensitized to the tenets of the development of constitutional law and constitutionalism,after paticipating in two valuable conferences on constitutional law
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Contents
Forewords
Part I Social Security and Law
1. The Environmental Rights Entered in the Constitutions:
A Critique
Hlako Choma 1
2. Limitation of Religious Freedom to Conform to the
Standards of an Open and Democratic Society
Hlako Choma, Pat Mabaso 31
3. The Impact of Mining Rights on the Local Communities in
Limpopo Province, South Africa: A Comparative Study
Hlako Choma 55
4. A Review of Developments and Changes in the Worlds
Constitutions
Hlako Choma 84
5. The Law and Its Interpretation Do Play a Role in the
Elimination of Enophobia: A South African Case Study
Hlako Choma 106
6. Constitutional Enforcement of Socio-economic Rights:
South African Case Study
Hlako Choma 121
7. The Importance of Alternative Dispute Resolution
in South Africa
Lufuno Tokyo Nenondwe 150
8. The Death of Irene Grootboom without Accessing
Adequate Housing is a Symbol of Poor Service Delivery
in South Africa
Lufuno Tokyo Nenondwe 157
9. Best Interests of the Child in Custody Disputes in Terms of the
Childrens Act, 38 of 2005 and the South African
Constitution Act, 108 of 1996
Lufuno Tokyo Nenondwe 161
10. Modes of Payment of Death Benefit Proceeds
Lufuno Tokyo Nenondwe 174
11. The Expression of Cultural and Religious Practice:
A Constitutional Test
Hlako Choma 195
12. Head of Department et al and Hoerskool Ermelo et al
Judgment: A Critique
Hlako Choma 205
Part II Pension Law
1. The Clean Break Principle in Terms of the Pension
Funds Amendment
Lufuno Tokyo Nenondwe 215
2. Time-barring and Prescription in Terms of the Pension Funds
Amendment Act, 11 of 2007 a Totally Exclusion to the Poor
Lufuno Tokyo Nenondwe 224
3. Recent Supreme Court of Appeal Judgements
on Retirement Law
Lufuno Tokyo Nenondwe 231
4. Bargaining Council Funds vs Sectoral Funds
Lufuno Tokyo Nenondwe 234
5. The Creation of Beneficiary Funds in Terms of Section
15(2) (a) of the Financial Services General Laws
Amendment Act 22 of 2008
Lufuno Tokyo Nenondwe 237
6. Beneficiary Funds
Lufuno Tokyo Nenondwe 243
7. Cohabitation versus Section 37C of the Pension
Funds Act, 24 of 1956
Lufuno Tokyo Nenondwe 247
8. Disability Complaints: Pension Funds Adjudicator
v the Superannuation Complaints Tribunal
Lufuno Tokyo Nenondwe 257
9. The Social Security and Retirement Reform Proposal of 2004
and 2007: A Critique
Lufuno Tokyo Nenondwe, Hlako Choma 266
10. A Critical Analysis of the Adjudication Tribunals in the
Pension Funds Industry and Their Role in Society
Lufuno Tokyo Nenondwe, Hlako Choma 287

Our decision to embark on the research of this book was not easier
considering the fact that the authors were busy with various tasks during the
year 2009. This book contains a collection of articles on social security and
pension law. The reasons to embark on this great research are that pension
law as a subject is not offered in the majority of law schools around the
world. This makes the law graduates to have little understanding of this
subject. Pension law as a subject involves various spheres of law including,
among others, Tax Law, Constitutional Law, Social Security Law, Law
of Delict, Administrative Law and Insurance Law. Modern pension funds
owe their existence largely to the industrial revolution and the social and
technological advances that have since taken place. Although pensions
had been paid in one form or another for hundreds of years prior to these
advances, particularly in Europe, employees tended to work throughout their
lives, and in infirmity were cared for by their extended family unit or by the
local community. The industrial revolution saw a major change in the nature
of society and the start of mass urbanization. Industrial employers took over
2
the role of work and sustenance provider, the village and family unit was
gradually broken down. As time went on, employers needed to strive for
business efficiency and productivity which led to a shorter effective working
life. It was not too long before the more socially conscious employers
recognized a need to make provision for those employees who had given
them good service but had become too old to keep up with the physical
pressures of work in a factory. Later, as competition among employers for
skilled employees became a factor, those socially conscious employers who
were known to provide some form of provision for their retired employees
were able to attract better and more qualified employees. The provision of
basic pensions began to expand as a means of attracting and retaining good
employees. In the early days, development in South Africa tended to follow
that in the United Kingdom. Pensions were initially paid out of current
earnings, but as their coverage widened and were increasingly demanded
by long-serving skilled employees. Prudent employers started to look for
ways of pre-funding these expectations. It is interesting to note that the
internationally recognized normal retirement age of 65 was first introduced
in Germany. Around the early 1920s, governments also saw the advantage
of encouraging more formal arrangements as society became more
dependent on savings made during employment, as a means of survival in
old age, rather than reliance on the family or community unit. They also
realized, however, that some form of control over how pensions were being
provided was necessary. With the introduction of tax incentives to encourage
the growth of savings for old age, governments used their respective tax
legislation to establish rules regulating pension benefits. This resulted in a
3
rapid increase in the number of employers providing properly funded and
secure pension benefits. Funds were set up either as private arrangements
where the employer employed his own staff to manage the fund and invest
its assets, or alternatively employers often purchased life insurance policies
in the names of individual employees. In that way, it removed the risk of
the pension not being available should something untoward happen to
the employer. Group insured arrangements, where one master policy was
issued to provide the benefits for all the employees of an employer were
only introduced in the early 1950s. In 1956, the South African Government
introduced what is generally recognized to be the worlds first ever Pension
Funds Act (the Act) designed specifically to regulate the business of
pension funds. The late 1950s and the 1960s saw incredible economic
growth among First World countries. The emergence of giant multinational
corporations employing thousands of people. The growth in pension funds
during this period, and the improvement in the benefits they provided,
mirrored this increase in employment and prosperity. Since then, with the
incredible advances in information technology and the growth of available
investment vehicles, including the opening of international investment
channels, pension funds have become highly sophisticated. This has led to a
proliferation of new types of funds, including umbrella funds administered
by professional sponsors and open to voluntary participation by any
employer, on behalf of its employees, and preservation funds which cater
for the parking of the retirement funding assets of individual members
until they retire or decide to transfer them to another fund. Currently, society
world-wide, is on the move again, and employment patterns are changing
4
even more rapidly. Naturally, with changes in social patterns and working
conditions come changes in retirement provision, and it is likely that we
will see the effects of these changes sooner rather than later in pension
funds. It may be submitted that the pension fund spawned by the industrial
revolution gives way to something quite different, and is discarded into the
history books. Meantime, attempts are being made by the South African
Government, among others, to catch up with current social change and the
ever increasing demands of consumer protection and good governance, by
re-writing the Act in terms of todays needs for tomorrows society. There is
a recent discussion which has been put into discussion papers titled social
security and retirement reform. At this time, it is not clear when this reform
will be translated into the Act of parliament. Initially the deadline was 2010
but this can no longer been met since the Bill has not yet been formulated.
Finally, we have drawn a lot of inspirations from a number of
professionals in the pension funds industry and the legal fraternity in
general. Naleem Jeram, former Deputy Pension Funds Adjudicator,
Lisa Shrobree, former senior Assistant Adjudicator, Karin Mackenzie,
former Senior Assistant Adjudicator, Makhubalo Ndaba, Senior Assistant
Adjudicator, Prof. O Mireku, Dean of the Faculty of Management of
Sciences and Law, University of Limpopo, Prof. Melvin Mbao, Dean of
the Faculty of Law, North-West University (Mafikeng Campus). They are
acknowledged with appreciations for their words of encouragement.
Dedication
I (Hlako Choma) thank God, who gave me the vision and passion to
write and publish this book. To all those wonderful contributions that led
5
to the successful completion of this book, I heartily acknowledge with
appreciations.Thanks to my daughter, Nthabiseng Choma and my son,
Hlako Junior Choma, who are the source of inspiration, motivation and
support. A special word of appreciation goes to my lovely wife, Noxolo,
whose unceasing love, encouragement and prayerful support has given birth
to this book.
I (Lufuno Nevondwe) dedicate this work to my family including my
wife Phumudzo Tshirangwana, my mother Masindi Ethel Nevondwe,
my late father, Jackson Temudzani Nevondwe and my child Murendeni
Professor Nevondwe. They all have been my key allies and co-compatriots
and have motivated me to have courage to continue and work hard in this
book. They provided me with immeasurable physical, moral and spiritual
support, without which the possibility of completion of this work would
have been far too remote.