Pension fund adjudicator, John Murphy, says he will think carefully about cancelling the rules of a fund because they may constitute unfair discrimination.
Any cancellation of a rule could place "substantial additional financial obligations" on pension funds.
And he says great care will have to be taken on issues such as claims for part of a surplus by members who resign from a fund rather than retire from a fund.
In a recent case Murphy was asked to make a decision that the same rules should apply to retirement as to early withdrawal from the fund (voluntary early retirement or resignation) and to set aside rules that did not treat both cases equally as unfair discrimination.
He says to cancel a rule as being unfairly discriminatory, he would need "to be convinced that the rules unfairly discriminate on arbitrary grounds or are contrary to public policy in some other way.
"It does not follow from the fact that the rules allow for differential treatment that they are unfairly discriminatory or contrary to public policy."
The complaint dealt with the entitlement to benefits of a member of the Johannesburg Municipal Pension Fund who argued that he was entitled to full benefits if he should buy back pensionable years and then retire early.
He stated that the rules regulating early withdrawal from the pension fund were unfair because they discriminated against those people who took early retirement.
Murphy said if he could be persuaded that such differential treatment constituted unfair discrimination he could rely on the Constitution for support.
But he declined to uphold the interpretation of the rules as requested by the complainant because he was not presented with the "necessary and appropriate evidence".
"Any determination into the constitutional validity of legislation usually will require some evidence of the purpose and effect of the law that is being challenged.
"When dealing with a pension fund rule granting specific entitlements to benefits, evidence on the manner and effect of an interpretation is absolutely essential."
Before he can order the rule to be made less discriminatory, Murphy says he needs to know what the financial consequences would be.
He also requires a complainant pleading discrimination and requesting particular relief, which the complainant had not done.
The complaint would have to be supported by evidence showing that payment of benefits to members in a different way is prejudicial.
In support of his argument that he was entitled to full benefits in terms of the rules of his pension fund if he should buy back pensionable years and then retire early, the complainant said that retirement referred not only to compulsory retirement, but to voluntary retirement.
Murphy said that the complainant based his argument entirely on the mistaken assumption that a resignation and retirement are treated in the same way in terms of the rules of the fund.