Two distinct but complementary regulatory developments have reshaped the enforcement of retirement fund contribution obligations in South Africa. The first is already in effect; the second is presently open for public comment ahead of its formal introduction to Parliament.
On 8 January 2026, the Minister of Employment and Labour withdrew the variation notice published in Government Gazette No. 25846 of 24 December 2003. That notice had excluded contributions payable to benefit funds regulated under the Pension Funds Act, 1956 (the Pension Funds Act) from the application of section 34A of the Basic Conditions of Employment Act, 1997 (BCEA). Labour Inspectors are now empowered to enforce section 34A, which requires employers to pay employee contributions to a benefit fund within seven days of deduction, together with the employer's contributions within seven days of the end of the month. This enforcement power is already operative and does not depend on the proposed amendments set out in the Employment Laws Amendment Bill, 2025 (the Bill).
The Bill, which proposes to insert new sections 62B and 77B into the BCEA, has not yet commenced. If enacted in their current form, these provisions will expand the enforcement framework by empowering the Labour Court, the Commission for Conciliation, Mediation and Arbitration (CCMA) and bargaining councils to issue mandatory orders and will regulate the jurisdictional interplay between these forums and the Pension Funds Adjudicator.
Section 62B provides that an employer's failure to pay contributions to a benefit fund on behalf of an employee must be treated in the same manner as a failure to pay any amount owing to an employee, except that the employer must be directed to make payment to the fund, not to the employee.
The practical effect is that non-payment of benefit fund contributions will attract the same enforcement consequences as non-payment of wages or other statutory entitlements.
Upon enactment, retirement funds will benefit from multiple concurrent enforcement channels, compliance orders, Labour Court orders, CCMA awards and bargaining council determinations, each directing payment of outstanding contributions together with interest prescribed under section 13A of the Pension Funds Act. Notably, section 13A(8) imposes personal liability on, among others, directors regularly involved in the management of a company's financial affairs.
A significant unresolved question concerns the misalignment of due dates for employee contributions under the two statutes. Both section 34A of the BCEA and section 13A of the Pension Funds Act require employer contributions to be paid within seven days after the end of the month. However, the provisions differ in relation to employee contributions. Section 34A requires these to be paid within seven days of deduction, whereas section 13A requires payment within seven days after the end of the month for which contributions are due. Given the variation in payroll dates and pay frequencies across employers, this discrepancy creates material compliance risk.
An employer who complies with one statute may inadvertently breach the other, particularly where payroll is processed on a non-monthly basis, such as for weekly wage earners. Uncertainty arises regarding the date from which interest accrues under section 13A(7) and the standard Labour Inspectors will apply when assessing compliance. Employers remunerating on a weekly or fortnightly basis face additional burdens, as section 34A may require multiple payments within a single month. These challenges could be further compounded if the Bill become law, as multiple forums may interpret the obligations differently. Legislative clarification or regulatory guidance is required.
Section 77B regulates the jurisdiction of the Labour Court, the CCMA and bargaining councils over complaints concerning an employer's failure to pay contributions to a fund regulated under the Pension Funds Act, regardless of whether the obligation arises under statute, collective agreement or contract of employment.
Where a contribution is found to be outstanding, the adjudicating body must direct payment to the fund within a specified period, together with prescribed interest. Jurisdiction is excluded if the Pension Funds Adjudicator has already issued a determination under section 30M of the Pension Funds Act, or if another tribunal or court of competent jurisdiction has adjudicated the matter.
The Bill also proposed to amend Schedule 3 to the BCEA, so that sections 62B and 77B apply immediately upon commencement to all unresolved disputes, irrespective of when they were referred.
With the historical exclusion of Pension Funds Act contributions from Labour Inspector oversight removed, the enforcement landscape has been fundamentally recast.
Employers are now subject to enforcement action for any failure to pay contributions timeously. If the proposed amendments to the BCEA are enacted, the enforcement framework will be further strengthened by multiple concurrent forums, each empowered to compel payment of outstanding contributions with interest. Employers are therefore advised to ensure strict compliance with all contribution obligations and to seek legal advice promptly where any dispute has been referred or is contemplated.
The Bill is currently open for public comment, with submissions due by 28 March 2026. The misalignment between the due dates prescribed by the BCEA and the Pension Funds Act and the resulting compliance difficulties, particularly for employers with non-monthly payroll cycles, is precisely the kind of technical concern that warrants engagement at this pre-parliamentary stage.
For assistance with submitting comments on the proposed amendments, or understanding the impact of the current enforcement regime, employers and retirement funds can contact Webber Wentzel.
