Tribunal sends Dutch-based South African’s R789,949 retirement dispute back to adjudicator

The Financial Services Tribunal has set aside a ruling that blocked a Dutch-based South African from accessing his retirement annuity of R789,949.64, finding that the Pension Funds Adjudicator failed to properly weigh key evidence about his tax residency. The tribunal has remitted the complaint to the adjudicator for reconsideration.

How the dispute began

The member, Barend Christoffel du Plessis, joined the Discovery Investment Retirement Annuity Fund in October 2014 after a transfer of just over R514,000 from the Du Pont Pension Fund. His member share stood at R789,949.64 in July 2025. He has not made further contributions to the investment.

Evidence of life abroad and withdrawal attempts

Du Plessis has lived outside South Africa since 2004 or 2005, acquired Dutch citizenship in August 2011, was registered in the Netherlands and had spent time in China and worked in Denmark. The tribunal noted he has not maintained a South African bank account for about two decades.

In November 2023 he submitted a claim for a pre-retirement withdrawal, selecting

“emigration”

as the reason. The fund asked for further documents and closed the case after the information was not provided. He made a second attempt 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 that month.

Documents requested and adjudicator’s dismissal

In January 2025 the administrator said additional documents were required, including 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 he ceased to be a South African tax resident.

Du Plessis complained that some documents were no longer available or could not reasonably be obtained because he had lived outside South Africa for two decades. The fund maintained the documents were necessary to obtain a SARS tax directive and argued the evidence did not establish uninterrupted non-residence for at least three years. The adjudicator dismissed the complaint in February 2026, finding the evidence did not show the required uninterrupted three‑year period of non-residence.

Tribunal identifies legal and evidential gaps

The tribunal found the central legal question which part of the statutory definition of “resident” in the Income Tax Act applied and when du Plessis ceased to be a South African resident had not been properly decided. It explained that ordinary residence is the primary test under the Income Tax Act and that ordinary residence is a factual question distinct from citizenship, domicile or emigration. The tribunal also noted the double taxation agreement between South Africa and the Netherlands could be relevant.

While the Dutch population register extract showed registration at an address in Veldhoven and contained historical residence information for the Netherlands and China, the tribunal said that document alone did not establish whether he remained ordinarily resident in South Africa. It nonetheless found the evidence should have been assessed collectively rather than rejected for not matching the fund’s checklist.

Shortcomings in the adjudicator’s reasoning and fund’s approach

The tribunal criticised both the fund and the adjudicator for focusing largely on documents proving physical movement in and out of South Africa and for failing to identify which statutory test for residence they were applying. It said affidavit evidence about intention, mode of life and personal connections can be relevant to ordinary residence and should not be disregarded without proper consideration.

The tribunal also criticised the fund’s continued demand for proof of a South African blocked rand bank account, noting that the formal emigration regime linked to that requirement ceased to apply for these purposes from 1 March 2021. The adjudicator’s written determination was found to lack adequate reasons, to have not engaged properly with the meaning of “resident” and to have failed to analyse key documents such as the Dutch population register extract and the Danish tax assessment.

Remitted for reconsideration

The tribunal set aside the adjudicator’s February 2026 determination but did not order payment of the retirement annuity. It said it did not have the power to substitute its own decision and therefore remitted the complaint to the adjudicator. The adjudicator must now address the basis on which du Plessis claims he ceased being a South African resident, specify the date of the alleged cessation and properly evaluate the evidence supporting his claim.

Key facts

• Member share: R789,949.64 (July 2025)
• Joined fund: October 2014
• Transferred from Du Pont Pension Fund: over R514,000
• Attempted withdrawals: November 2023 and November 2024
• Administrator requested further documents: January 2025
• Adjudicator dismissed complaint: February 2026