Edcon Pension Fund v Financial Services Board of Appeal and Another (349/07) [2008] ZASCA 65; [2008] 4 All SA 39 (SCA); 2008 (5) SA 511 (SCA) (29 May 2008)

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Edcon Pension Fund v Financial Services Board of Appeal and Another (349/07) [2008] ZASCA 65; [2008] 4 All SA 39 (SCA); 2008 (5) SA 511 (SCA) (29 May 2008)

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REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case
number:
349/07
Reportable
In the matter between:
EDCON
PENSION FUND
...
APPELLANT
and
THE
FINANCIAL SERVICES BOARD
OF
APPEAL
...
FIRST
RESPONDENT
THE DEPUTY REGISTRAR
OF PENSION FUNDS
...
SECOND RESPONDENT
CORAM
:
SCOTT, FARLAM, NAVSA, MTHIYANE JJA et MHLANTLA AJA
HEARD
:
20 MAY 2008
DELIVERED
:
29 MAY 2008
SUMMARY:
Pensions –
whether right to bring transfer application under s 14 of
Pension
Funds Act 24 of 1956
accrued to appellant before Act 39 of 2001 came
into operation.
Neutral
citation: This judgment may be referred to as
Edcon
Pension Fund v The Fianancial Services Board of Appeal and Another
(349/07)
[2008] ZASCA 65
(29 May 2008).
__________________________________________________
JUDGMENT
__________________________________________________
FARLAM JA
Introduction
[1] This is an appeal
against a decision of Preller J, sitting in the Pretoria High Court,
in which he dismissed a review application
against a decision of the
first respondent, the Financial Services Board of Appeal.
[2] The appellant, the
Edcon Pension Fund, is a pension fund organization registered as a
pension fund in terms of the
Pension Funds Act 24 of 1956
, as amended
(to which I shall refer in what follows as ‘the Act’). The first
appellant is the Board of Appeal constituted in
terms of s 26 of the
Financial Services Board Act 97 of 1990, which heard and dismissed an
appeal from a decision taken by the second
respondent, the Deputy
Registrar of Pension Funds, to reject certain transfer applications
submitted to him in terms of s 14 of the
Act. The second respondent’s
decision to reject the transfer applications was based on his view
that they were incompatible with
the provisions of the Pension Funds
Second Amendment Act 39 of 2001 (which I shall call in what follows
‘the surplus legislation’).
[3] The appellant does
not dispute that the transfer applications are incompatible with the
provisions of the surplus legislation
but contends that it had
acquired a vested right to have the applications determined in
accordance with the provisions of the Act
as they were before the
surplus legislation came into effect.
Facts
[4] Before I summarise
the arguments advanced before us by the appellant and the second
respondent it is necessary to summarise the
main facts.
[5] On 7 July 1997 the
fund was closed to new entrants and its members were offered the
opportunity of transferring to certain provident
funds which had been
established by the employer. Thereafter the fund embarked upon an
exercise which involved a restructuring and
distribution of the
surplus in the fund. This exercise, which started before the advent
of the surplus legislation, was designed
and implemented in
accordance with the legal position at that time. The restructuring
part of the exercise involved the transfer
of members to the
provident funds and the outsourcing of the benefits payable by the
fund to pensioners. Transferring members, pensioners
and certain
members were offered benefit enhancements funded out of the surplus
but were required to renounce their employer post-retirement
medical
aid benefits. Former members who had already transferred to the
provident funds were also offered the opportunity of renouncing
their
post-retirement medical aid benefits in exchange for an enhanced
benefit. In order to match an enhancement which former members
who
had already transferred to the provident funds had received when the
transfer occurred transferring members and pensioners were
also
offered an additional 25 per cent enhancement. It was thereafter
envisaged that the balancing surplus would be transferred to
the
Edcon Provident Fund for specified uses by the employer.
[6] In order to give
effect to the restructuring certain amendments to its rules were
adopted by the fund and submitted to the Registrar’s
office on 7
December 2000 for approval in terms of s 12 of the Act. The Registrar
was not happy with the amendments, primarily because
they had not
been adopted pursuant to a negotiated settlement. In May 2001 at a
meeting at the Registrar’s office it was agreed
that the fund would
enter into a negotiated agreement concerning the distribution of the
surplus with all stakeholders and that certain
consequential
amendments would be made and that the amendments, as modified in the
light of the negotiated agreement, would be resubmitted
for approval.
On 14 June 2001 the negotiated agreement was submitted to the
Registrar’s office, together with further draft amended
rules for
advance approval. On 18 June 2001 the Registrar’s office advised
that it could not approve rules in advance but that
it could not see
anything untoward in principle in the draft rules.
[7] During August 2001
the amended rule amendments, which gave effect to the negotiated
settlement, were submitted to the Registrar’s
office, together with
certificates from the actuary of the fund and the trustees stating
that they regarded the distribution as reasonable.
[8] No response regarding
the amendments was received from the Registrar’s office before 7
December 2001, when the surplus legislation
came into effect.
Subsequently, in March 2002, the Registrar’s office advised the
fund that in view of the surplus legislation
it was obliged to reject
all applications for rule amendments that failed to give effect to
the reasonable expectations of members
and former members arising
from the surplus legislation. The fund was further advised that it
had to retain a contingency reserve
sufficient to address any claims
that were likely to arise as a result of the surplus legislation. A
further set of amendments was
then drafted and submitted by the fund
on 6 June 2002 so as to comply with the Registrar’s further
demands. Eight days later the
Registrar’s office issued a circular
stating that rule amendments and transfer applications submitted
before 7 December 2001, (when,
it will be remembered, the surplus
legislation came into operation), would be considered in the light of
the legal position as it
was when they were submitted. Applicants
whose applications were submitted before 7 December 2001 but were
rejected after that date
because of non-compliance with the surplus
legislation were invited to resubmit applications.
[9] The fund responded to
this invitation and to certain other advice it received from the
Registrar’s office and requested the
Registrar to consider the rule
amendments it had submitted in August 2001. As a result these
amendments, which provided that they
were effective from 1 September
2001, were registered. In terms of s 12 of the Act they were deemed
to have come into effect on the
date stated, ie, over three months
before the surplus legislation came into operation.
[10] After the rule
amendments were registered the fund implemented what the chairman of
its trustees called in the founding affidavit
‘an extensive
communication exercise’ to advise stakeholders about the rule
amendments and steps were taken to begin implementing
the scheme.
[11] On or about 17
February 2003 each of the members was provided with what was
described as ‘an option’, either to remain a
member of the fund
or to transfer to one of the provident funds, effective from 1 March
2003. Those members who elected to transfer
were to receive a 25 per
cent enhancement to their actuarial reserve values, but were to
forfeit their entitlements to have their
post-retirement medical aid
contributions, as well as other medical costs, subsidised by the
employer. 155 active members were communicated
with, of whom 29
elected to remain members of the fund, 35 did not reply (and thus by
default also remained members of the fund),
87 accepted the offer to
transfer to one of the provident funds, and there were what were
described as four ‘exits’ from the
fund. Pensioners of the fund
were also given options in respect of future payments and funding of
their pensions, either to remain
pensioners of the fund and thus
continue to receive their monthly pension payments from the fund and
to receive their post-retirement
medical aid contribution subsidy
from the employer, or to purchase annuities in their own names with
an enhancement to their pensioner
liabilities of 25 per cent and to
agree to discharge their former employer from its post-retirement
medical aid contribution subsidy
liability. From 1 March to 1 May
2003 560 pensioners appear to have elected to choose the second
alternative.
[12] On 4 June 2003 the
fund submitted the relevant transfer applications to the Registrar’s
office for approval in terms of s 14
of the Act.
[13] On 13 August 2003
the Registrar’s office wrote a letter to Alexander Forbes Financial
Services, the fund’s consultants, stating
that the Registrar could
at that stage only approve the transfer of 100 per cent of Member’s
accrued liabilities and that any surplus
in the fund should be dealt
with in terms of the surplus legislation.
[14] On 14 August 2003,
the chairman of the fund’s trustees sent a letter to the
Registrar’s office in which he stated that he
had been informed by
the fund’s consultants of the decision to decline to approve the s
14 applications. After expressing his concern
and frustration at this
outcome, given the long and protracted negotiations and dealings the
fund had entered into with the Registrar’s
office in relation to
the transfer applications, he requested a formal response from the
Registrar.
[15] The second
respondent’s reply to this letter was sent to the appellant on 28
August 2003. It reads as follows:
‘
Amendment No 14 to the Rules of the
Edcon Pension Fund and Amendment No 1 to the Rules of the Edcon
Provident Fund were, as you state
in your letter, registered by this
office on 10 September 2002, i.e. after the commencement of the
Pension Funds Second Amendment Act, 39 of 2001
, on 7 December 2001.
These amendments were registered at
the request of the Fund, as evidenced by an e-mail dated 2 September
2002. A copy is attached
as Annexure A. The request followed a letter
dated 28 August 2002 in which Rule Amendment 14 as submitted under
cover of a letter
dated 6 June 2002, was formally rejected. In spite
of this, the Registrar agreed to reconsider registration of Amendment
No 14 as
submitted prior to 7 December 2001, but never formally
rejected. A copy of this letter is attached as Annexure B.
It is clear that the officials
concerned did everything possible to be helpful and to comply with
the requests of the Fund.
Registration of these rule amendments
did not guarantee approval of the applications submitted thereafter
in terms of section 14 of
the Act. Unfortunately, in view of the
amendment of the
Pension Funds Act, it
was not possible to approve
the subsequent transfer applications, as these applications provided
for an apportionment of surplus,
after 7 December 2001, in a manner
not consistent with the Act as it was not reasonable and equitable to
all stakeholders.
Whilst I appreciate that the Fund, as
stated in your letter, communicated often with the Registrar’s
office and endeavoured to make
full and transparent disclosure
regarding the intention, basis and consequence of the reconstruction
of the Fund, the Registrar now
finds himself in the invidious
position that he is not empowered to approve the section 14
applications due to the amendment of the
Act with effect from 7
December 2001.
This was explained at a meeting held
on 11 August 2003 at 16:30.
A letter was sent to Alexander Forbes
Financial Services on 13 August 2003, informing them that the
Registrar can at this stage only
approve the transfer of 100% of
Member’s accrued liabilities and that any surplus in the Fund
should be dealt with in terms of
the Act as amended. This was not a
formal rejection of the section 14 applications, but rather an
opportunity to amend the application
and get the 100% of accrued
liabilities approved.
The Registrar does not have
discretionary powers in this matter. The section 14 applications for
transfer as submitted can therefore
not be approved whilst the
transfers include the transfer of surplus.’
[16] On 15 September
2003, the appellant lodged an appeal to the first respondent against
the refusal to approve the transfers. In
the formal reasons furnished
by the second respondent pursuant to Regulation 4 of the Regulations
issued under s 26(2) of Act 97
of 1990 the following points were
made:
(a) the rule amendments
submitted before the surplus legislation came into operation had to
be considered in accordance with the legal
position then prevailing;
(b) by registering the
amendments the Registrar did not undertake to approve the s 14
applications;
(c) the s 14 applications
were only submitted on 4 June 2003, after the surplus legislation
came into force, and they had to be considered
in accordance with the
surplus legislation; and
(d) the benefits accruing
to members were not automatically enhanced by the registration of the
amendments. ‘Enhancement would only
take place on a case by case
basis if and when a member of the fund agreed to transfer to another
fund. After 7 December 2001 such
ad
hoc
enhancement
from surplus was no longer possible.’
[17] On 7 December 2004
the first respondent handed down its written decision dated 14
November 2004, dismissing the fund’s appeal.
In its reasons it
found,
inter
alia,
that
the second respondent had not erred in applying the provisions of the
surplus legislation to the transfer applications and (as
it was put
in the reasons) ‘in finding that the benefit enhancements did not
vest before 7 December 2001 . . . [and] that the transfer
applications were not reasonable and equitable to all stakeholders’.
[18] The fund then
launched an application in the Pretoria High Court for an order
reviewing and setting aside the first respondent’s
decision,
relying on a number of grounds set out in s 6 of the Promotion of
Access to Justice Act 3 of 2000, (commonly known as ‘PAJA’),
inter
alia,
that
the decision was materially influenced by an error of law (section
6(2)(d) of PAJA) and that the decision was taken because relevant
considerations were not taken into account (s 6(2)(e)(iii) of PAJA).
Judgment of court a
quo
[19] With the approval of
counsel for the parties Preller J in the Court
a
quo,
approached
the matter on the basis that if the case could be distinguished from
the majority judgment of this court in
Chairman,
Board of Tariffs and Trade v Volkswagen of South Africa (Pty) Ltd
[2000] ZASCA 84
;
2001
(2) SA 372
(SCA) (which I shall call in what follows ‘the
Volkswagen
decision’), the
application should fail but that if the majority decision in that
case could not be distinguished then the application
had to succeed.
In the result the learned judge came to the conclusion (for reasons
which will appear presently) that the
Volkswagen
decision was
distinguishable and he dismissed the application.
Relevant statutory
provisions and summary of the Volkswagen decision
[20] Before I summarise
the submissions of counsel for the appellant it will be appropriate
to set out the relevant portions of sections
12 and 14 of the Act as
well as the facts and the reasons for the majority judgment in the
Volkswagen
decision.
[21] Sections 12 and 14
of the Act, as far as material, provide as follows:
’
12 (1) A registered fund may, in
the manner directed by its rules, alter or rescind any rule or make
any additional rule, but no such
alteration, rescission or addition
shall be valid─
(a)
if
it purports to effect any right of a creditor of the fund, other than
a member or shareholder thereof; or
(b)
unless
it has been approved by the registrar and registered as provided in
subsection (4).
(2) Within 60 days from the date of
passing of a resolution for the alteration or rescission of any rule
or for the adoption of any
additional rule, a copy of such resolution
shall be transmitted by the principal officer to the registrar,
together with the particulars
prescribed by regulation.
(3) If any such alteration, rescission
or addition may affect the financial condition of the fund, the
principal officer shall also
transmit to the registrar a certificate
by the valuator or, if no valuator has been employed, a statement by
the fund, as to its
financial soundness, having regard to the rates
of contributions by employers and, if the fund is not in a sound
financial condition,
what arrangements will be made to bring the fund
in a sound financial condition.
(4) If the registrar finds that any
such alteration, rescission or addition is not inconsistent with this
Act, and is satisfied that
it is financially sound, he shall register
the alteration, rescission or addition and return a copy of the
resolution to the principal
officer with the date of registration
endorsed thereon, and such alteration, rescission or addition, as the
case may be, shall take
effect as from the date determined by the
fund concerned or, if no date has been so determined, as from the
said date of registration.
. . .
14 (1) No transaction involving the
amalgamation of any business carried on by a registered fund with any
business carried on by any
other person (irrespective of whether that
other person is or is not a registered fund), or the transfer of any
business from a registered
fund to any other person, or the transfer
of any business from any other person to a registered fund shall be
of any force or effect
unless─
(a)
the
scheme for the proposed transaction, including a copy of every
actuarial or other statement taken into account for the purposes
of
the scheme, has been submitted to the registrar;
(b)
the
registrar has been furnished with such additional particulars or such
a special report by a valuator, as he may deem necessary
for the
purposes of this subsection;
(c)
the
registrar is satisfied that the scheme referred to in paragraph
(a)
is reasonable and equitable
and accords full recognition─
(i) to the rights and reasonable
benefit expectations of the members transferring in terms of the
rules of a fund where such rights
and reasonable benefit expectations
relate to service prior to the date of transfer;
(ii) to any additional benefits in
respect of service prior to the date of transfer, the payment of
which has become established practice;
and
(iii) to the payment of minimum
benefits referred to in section 14A,
and that the proposed transactions
would not render any fund which is a party thereto and which will
continue to exist if the proposed
transaction is completed, unable to
meet the requirements of this Act or to remain in a sound financial
condition or, in the case
of a fund which is not in a sound financial
condition, to attain such a condition within a period of time deemed
by the registrar
to be satisfactory;
(d)
the
registrar has been furnished with such evidence as he may require
that the provisions of the said scheme and the provisions, in
so far
as they are applicable, of the rules of every registered fund which
is a party to the transaction, have been carried out or
that adequate
arrangements have been made to carry out such provisions at such
times as may be required by the said scheme;
(e)
the
registrar has forwarded a certificate to the principal officer of
every such fund to the effect that all the requirements of this
subsection have been satisfied.
. . .’
[22] The
Volkswagen
decision
concerned an application for a rebate on excise duty payable on motor
vehicles manufactured in the Republic, for which provision
was made
in s 75 of that Act. In terms of that section a motor vehicle
manufacturer was allowed to claim a rebate on excise duty
for the
purpose of the Export Incentive Scheme for the Motor Industry (Phase
VI). The calculation of the amount of the rebate depended
on the
extent of the manufacturer’s foreign currency earnings, which in
turn depended on the volume of its exports of locally manufactured
vehicles and component parts.
[23] Because the rebate
was subject to a ceiling a manufacturer’s earnings above the
ceiling would have been of no value to it.
To cater for this a note
was enacted to the relevant rebate item in Schedule 6 to the Customs
and Excise Act, which permitted a customs
and excise warehouse, such
as Volkswagen of SA (Pty) Ltd, (which I shall call ‘Volkswagen’
in what follows) the first respondent
in the case, to cede ‘any
specific amount of foreign currency earnings in respect of motor
vehicles exported by such warehouse,
as specified in a certificate
issued by the Director-General: Trade and Industry, on recommendation
of the Board on Tariffs and Trade,
to other customs and excise
manufacturing warehouses . . ..’ The note was repealed with effect
from 1 September 1995. Prior to
the repeal Volkswagen had applied for
and been granted a rebate in respect of vehicles manufactured and
exported by it. It also applied
for and was granted certificates
permitting cessions of excess earnings. It was unable, however, to
take advantage of the full extent
of the rebates to which it was
entitled due to an erroneous method required by the Commissioner of
Customs and Excise in calculating
the surplus. After the repeal of
the note Volkswagen requested permission from the Commissioner to
extract exports previously included
in its quarterly accounts and to
cede them to another motor manufacturer for inclusion in its accounts
for the same quarters. It
accordingly sought permission to cede,
notwithstanding the repeal of the relevant note, that part of its
foreign currency earnings
which it had previously been obliged to
commit to its own account because of the Commissioner’s insistence
on the employment of
an erroneous method to calculate the surplus.
The Commissioner conceded the correctness of Volkswagen’s
standpoint and granted
permission for the cession. In terms of the
repealed note the cession could only take place after the
Director-General had issued
the relevant certificate upon the
recommendation of the Board on Tariffs and Trade, which resolved not
to make a recommendation,
as it was of the view that in doing so it
would be required to exercise powers in terms of legislation that was
no longer applicable.
The majority in this court (Nienaber JA, with
whom Smalberger JA and Mthiyane AJA concurred) held that the right to
approach the
Board for a recommendation in respect of the additional
surplus had accrued to Volkswagen before the note was repealed, and
that
the Board’s view that it was no longer empowered to make
recommendations to the Director-General in terms of the repealed note
was not correct.
A
ppellant’s
submissions
[24] Counsel for the
appellant in this case relied on the principle that an applicant has
a right to have his or her application determined
in accordance with
the law as it was prior to the amendment or repeal of the law in
terms of which the application is brought where
the applicant has
taken sufficient steps prior to the commencement of the amending or
repealing law to assert the right relied on.
It was contended that a
right to have the s 14 applications considered in the light of the
legal position as it was before the surplus
legislation came into
operation accrued to the appellant in this case. It was submitted
that the fund had taken sufficient steps
to satisfy the test for the
accrual of the right contended for as laid down in a series of
decisions of this court, culminating in
the
Volkswagen
decision.
The facts in that case, so it was argued, were closely analogous to
those in the present matter and there is no legitimate
basis for
distinguishing between them.
[25] Counsel for the
appellant also advanced an alternative contention to the effect that
the second respondent erred in finding that
no vested right to a
benefit enhancement could be said to have accrued to the members
before 7 December 2001. In this regard it was
pointed out that the
rule amendments which were registered must be deemed to have taken
effect from 1 September 2001. This was in
accordance with the express
wording of the rule amendments, which specifically stated that they
were to take effect on 1 September
2001, and s 12 (4) of the Act,
which provides that an amendment to existing rules may take effect
‘as from the date determined
by the fund concerned or, if no date
has been so determined, as from the . . . date of registration.’
[26] Counsel submitted
further that the elections which had to be made by members as to
whether to opt for the benefit enhancements
provided for in the rule
amendments must by the same fiction of law be deemed to have been
made within a period calculated to have
commenced on 1 September
2001, notwithstanding that they were in fact exercised after
registration of the amended rule in September
2002. Such elections as
were made by members were, so it was argued, accordingly, for
purposes of the law, deemed to have been made
prior to the
commencement of the surplus legislation. Accordingly, so the argument
proceeded, the members acquired a vested right
in terms of a duly
registered rule to receive payments of the enhancements therein
promised and the s 14 applications did not in
these circumstances
facilitate the distribution of a surplus but catered for the payment
of accrued liabilities.
Second respondent’s
submissions
[27] Counsel for the
second respondent submitted that Preller J had correctly
distinguished the facts of the present case from those
in the
Volkswagen
case.
They drew attention to the fact that it took the appellant
approximately nine months, after the rule amendments were approved,
to submit the transfer applications and submitted that it was not
possible to find that if the rule amendments had been approved
in
August or September 2001 the transfer applications would have been
submitted before 7 December 2001.
Discussion
Did the right
contended for accrue?
[28] In my opinion the
appellant’s contention that it had the right to have its s 14
application considered in terms of the law
as it was before 7
December 2001, because this right had accrued to it before that date
cannot be upheld. The test to be applied
when an answer is sought to
the question as to whether a right has accrued appears from para 13
of Nienaber JA’s judgment in the
Volkswagen
case
(at 380 E):
‘
A right “accrues” when all the
conditions for its existence in relation to the particular
beneficiary are met.’
In my view in the present
context the election by the member in respect of whom the transfer is
sought is one of the conditions which
must be met before it can be
said that the right to bring s 14 application for the transfer in
question accrues. This patently did
not happen until well after 7
December 2001.
[29] Counsel for the
appellant endeavoured to meet this point by pointing to the fact that
in the
Volkswagen
case
Volkswagen had sought permission, after the repeal of the note, to
cede that part of its foreign currency earnings which previously,
because of the Commissioner’s erroneous view, it had been obliged
to commit to its own account. In this regard they relied on passages
in paras 6, 14, 15 and 20 of Nienaber JA’s judgment. Preller J
distinguished the
Volkswagen
case
essentially on the ground that what happened in that matter was that
the relevant accounts were ‘historically’ amended whereas
in the
present case an entirely new application was brought by the
appellant. I agree that the
Volkswagen
decision is to be
distinguished on this basis. While in a formal sense it is correct to
say that Volkswagen was proposing to bring
a further application to
cede what was called ‘the super-surplus’ in essence what it was
doing was seeking to correct the amount
of the surplus to be ceded.
This appears clearly in my view from the following paragraphs in
Nienaber JA’s judgment (at 381H-382B):
‘
[16] What VW now sought to do after
the Commissioner acknowledged that not all royalties had to be taken
into account in calculating
the surplus it sought permission to cede
was to rectify the pre-repeal position by seeking supplementary
permission to cede what
had now been determined to be the correct
amount. As such the permission sought went to the amount rather than
to the entitlement.
This is not, therefore, a situation where VW,
never having applied for permission to cede its excess foreign
currency earning prior
to the repeal, now seeks to do so for the
first time after the event.
[17] Prior to the repeal VW had
fulfilled all the requirements which in fact and in law entitled it
to approach the Board for permission
to make its recommendation in
respect of the super-surplus; and from its side VW had taken all the
steps realistically open to it
to advance its request for permission
to effect such a cession. After the repeal it remained, as it would
have been before the repeal,
a matter for consideration by the Board
and the Director-General.
[18] Seen in this light the right to
approach the Board for a recommendation in respect of the
super-surplus in order that “the
relevant accounts be historically
amended” (see para [6] above) accrued to VW prior to the repeal of
the relevant note.’
The legal fiction
point
[30] I turn now to
consider the appellant’s alternative contention, viz that by a
legal fiction the members who elected to accept
the enhanced benefit
and to transfer to one of the provident funds and pensioners who
elected to have the benefits payable to them
by the fund outsourced
must be deemed to have made the relevant elections before 7 December
2001.
[31] In what follows I am
prepared to assume, without deciding, that the elections made by the
members and pensioners must by a legal
fiction be deemed to have been
made within a period calculated to have commenced on 1 September
2001. Even if that assumption is
made in favour of the appellant, I
do not think that it assists the appellant because it is not possible
to hold, as the appellant’s
counsel contended, that the elections
must be deemed to have taken place within a period of three months
and one week (from 1 September
to 7 December) after the notional
commencement date of the period. We know that the rule amendments
were registered in September
2002 and the elections were made between
17 February and 1 March 2003. Indeed counsel for the appellant, when
pressed on the point,
conceded that it was not possible to find by
when the elections would have been made if the rule amendments had
been registered on
1 September 2001. This concession, which I am
satisfied was correctly made, effectively destroys the alternative
argument.
[32] In the circumstances
I am satisfied that the appeal must fail.
Order
[33] The following order
is made:
The appeal is dismissed
with costs, including those occasioned by the employment of two
counsel.
……………
..
IG
FARLAM
JUDGE
OF APPEAL
CONCURRING
DG
SCOTT JA
MS
NAVSA JA
KK
MTHIYANE JA
NZ
MHLANTLA AJA