The Financial Services Tribunal has set aside a ruling that blocked a Dutch-based South African from accessing his retirement annuity benefit of almost R790,00 finding that the Pension Funds Adjudicator had failed to properly consider key evidence concerning his tax residency.
The tribunal ordered that the complaint by Barend Christoffel du Plessis be sent back to the adjudicator for reconsideration after finding serious shortcomings in the way his claim for an early withdrawal was assessed.
Du Plessis’s member share in the Discovery Investment Retirement Annuity Fund stood at over R789,949.64 in July 2025. He joined the fund in October 2014 after over R514,000 was transferred from the Du Pont Pension Fund, with no further contributions made to the investment.
The man has lived outside South Africa since 2004 or 2005, acquired Dutch citizenship in 2011, had been registered in the Netherlands, spent a period in China, worked in Denmark and had not maintained a SA bank account for about two decades.
Dispute over withdrawal
The dispute arose from Du Plessis’s attempt to withdraw his retirement annuity before reaching retirement age on the basis that he had ceased to be a South African resident.
Born in Queenstown, Du Plessis acquired Dutch citizenship in August 2011 and provided a residential address in Veldhoven in the Netherlands.
In November 2023, he submitted a claim for a pre-retirement withdrawal, selecting “emigration” as the reason. The fund subsequently requested additional documentation but closed the withdrawal case after the outstanding information was not received.
He tried again in November 2024, submitting an affidavit, a Dutch population register extract, a certified copy of his Netherlands passport and a Danish annual tax assessment.
His attorneys forwarded the documents to the fund later that month.
Demands on documents
In January 2025, the administrator informed Du Plessis that several documents were still required.
These included a certificate of residence from the tax authority in his country of residence, a passport showing his date of departure from South Africa, proof of a South African blocked rand bank account and confirmation from SARS of the date on which he ceased to be a South African tax resident.
Du Plessis subsequently complained to the adjudicator, arguing that he had been trying to withdraw his benefit since 2023 and that the fund had failed to properly consider the evidence he had supplied.
He also argued that some of the documents demanded by the fund were no longer available or could not reasonably be obtained because he hasn’t lived in South Africa in two decades.
The fund, however, maintained that the documentation was necessary to obtain a SARS tax directive for members who had ceased to be South African residents.
It argued that the evidence provided by Du Plessis did not establish that he had been a non-resident for an uninterrupted period of at least three years.
Adjudicator rejects complaint
The adjudicator dismissed Du Plessis’s complaint in February 2026.
The adjudicator found that although Du Plessis had provided a copy of his passport, he had not supplied sufficient proof that he had been non-resident for an uninterrupted period of three years or longer.
However, the tribunal identified an important inconsistency in the adjudicator’s determination.
While the reasons stated that Du Plessis should provide the required information and that the fund should then apply for a tax directive and pay his withdrawal benefit, the formal order simply dismissed his complaint.
Du Plessis then approached the tribunal, arguing that the adjudicator had failed to properly consider evidence relating to his non-residency and had placed too much emphasis on the absence of historical passport records.
He also submitted a supplementary affidavit explaining why his South African passport was unavailable, together with an English translation of the Dutch population register extract.
Addressing legal question
The tribunal found that the central legal issue had never been properly determined.
It said the provisions of the Income Tax Act governing the withdrawal of a retirement annuity after cessation of South African residence turned on the meaning of “resident”.
However, neither the fund nor the adjudicator had properly identified which part of the statutory definition applied to Du Plessis or established the date on which he allegedly ceased to be a South African resident.
The tribunal explained that ordinary residence is the primary test under the Income Tax Act, while the physical presence test applies only in certain circumstances.
It stressed that ordinary residence is a factual question and is not the same as citizenship, domicile or emigration.
The tribunal also noted that the double taxation agreement between South Africa and the Netherlands could potentially affect the determination of residence.
Living outside SA
The tribunal found that the evidence submitted by Du Plessis had not been properly assessed.
His Dutch population register extract showed that he had been registered at an address in Veldhoven and contained historical information about his residence in the Netherlands and China.
The tribunal regarded the extract as an official foreign public document with substantial evidential value regarding his registration and address abroad.
However, it stressed that the document did not, by itself, establish whether Du Plessis remained ordinarily resident in South Africa.
The tribunal also considered his Netherlands passport and Danish tax assessment.
Although neither document conclusively established the required period of South African non-residence, the tribunal found that the evidence had to be considered collectively rather than simply rejected because it did not correspond with the fund’s checklist.
Taken together, the evidence indicated that Du Plessis had lived outside SA for two decades and has not maintained a South African bank account since he left.
Prove entitlement to funds
Despite criticising the way his evidence had been handled, the tribunal did not find that Du Plessis had already discharged the onus of proving his entitlement to the benefit.
Among the issues identified was uncertainty about the date on which he left South Africa.
His complaint form stated that he had left approximately 25 years earlier, while the Dutch records showed an address in Veldhoven from 2004 and his affidavits referred to approximately 2005.
There was also no SARS confirmation of his non-resident tax status, no proof of a formal declaration of cessation of residence and no certificate of residence from the Netherlands tax authority.
However, the Tribunal said these shortcomings did not mean that the Adjudicator’s determination could stand.
Fund criticised for heavy document checklist
The tribunal found that the fund had failed to identify which statutory test it was applying and had instead focused largely on documents proving physical movement in and out of South Africa.
According to the Tribunal, this approach addressed only part of the legal inquiry.
It also found that the fund had failed to adequately explain why the documents submitted by Du Plessis were insufficient and had not properly considered his affidavits.
The Tribunal said affidavit evidence could be relevant when determining ordinary residence because the issue involves a person’s intention, mode of life and personal connections.
While such evidence might ultimately prove insufficient, it could not simply be disregarded without considering its contents.
The tribunal also criticised the continued demand for proof of a South African blocked rand bank account.
It found that this requirement was linked to the formal emigration regime that had ceased to apply for these purposes from 1 March 2021.
Adjudicator’s reasons found inadequate
The tribunal further found that the Adjudicator’s determination lacked adequate reasons.
It said the decision did not properly engage with the meaning of “resident”, identify the applicable test or specify the date on which Du Plessis was alleged to have ceased being a South African resident.
The documentary evidence was also not properly evaluated.
The Tribunal noted that the Dutch population register extract, which was central to Du Plessis’s case, was not analysed in the determination, while the Danish tax assessment was not analysed at all.
Complaint sent back to adjudicator
Although the tribunal set aside the adjudicator’s ruling, it stopped short of ordering payment of the R789,949.64 retirement annuity benefit.
It said it did not have the power to substitute its own decision for that of the adjudicator in the circumstances.
The tribunal ultimately found that the key inquiry into Du Plessis’s tax residency had never been properly conducted by the fund or the Adjudicator.
It therefore set aside the adjudicator’s February 2026 determination and remitted Du Plessis’s complaint to the adjudicator for reconsideration.
The reconsideration will have to address the basis on which Du Plessis claims he ceased being a South African resident, the date of the alleged cessation and the evidence supporting his claim.
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