Hunter v Financial Sector Conduct Authority and Others (CCT165/17) [2018] ZACC 31; 2018 (6) SA 348 (CC); 2018 (12) BCLR 1481 (CC) (20 September 2018)

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[2018] ZACC 31
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Hunter v Financial Sector Conduct Authority and Others (CCT165/17) [2018] ZACC 31; 2018 (6) SA 348 (CC); 2018 (12) BCLR 1481 (CC) (20 September 2018)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case
CCT 165/17
In the matter
between:
ROSEMARY THÉRÉSÉ
HUNTER
Applicant
and
FINANCIAL SECTOR
CONDUCT
AUTHORITY
First

Respondent
ABEL MOFFAT
SITHOLE
N.O.
Second

Respondent
DUBE
PHINEAS TSHIDI
N.O.
Third

Respondent
JURGEN ARNOLD
BOYD
N.O.
Fourth
Respondent
KNOWLEDGE MALUSI
NKANYEZI
GIGABA
N.O.
Fifth
Respondent
and
CASUAL WORKERS
ADVICE
OFFICE
First

Amicus Curiae
RIGHT2KNOW
CAMPAIGN
Second

Amicus Curiae
Neutral citation:
Hunter
v Financial Sector Conduct Authority and Others
[2018] ZACC 31
Coram:
Mogoeng CJ, Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ,
Jafta J, Khampepe J, Madlanga J, Petse AJ, and Theron J
Judgments:
Khampepe J (majority): [1] to [61]
Froneman J
(minority): [62] to [137]
Cachalia AJ
(dissenting in part): [138] to [184]
Heard on:
13
February 2018
Decided on:
20 September 2018
Summary:
Pension
Funds Act — pension funds — orphan funds — pension
funds cancellations project — locus standi —
misjoinder —
amendment of pleadings
Financial Sector
Conduct Authority — public service — public functionary —
unlawful conduct — duty to investigate
— Ministerial
Intervention — Treasury Regulation 33 — administrative
action — Promotion of Administrative
Justice Act
ORDER
On appeal from the
Supreme Court of Appeal (hearing an appeal from the High Court of
South Africa, Gauteng Division, Pretoria):
1. The application for leave to appeal is granted.
2. The appeal is dismissed.
3. The third and fourth respondents’ conditional counter-appeal
is dismissed.
4. The application by Right2Know Campaign (R2K) for admission as
amicus curiae is granted.
5. Condonation is granted for the late filing of the application for
leave to appeal.
6. Condonation is granted for the late filing of the applicant’s
written submissions.
7. Condonation is granted for the late filing of the third and fourth
respondents’ written submissions.
8. Condonation is granted for the late filing of R2K’s written
submissions.
9. The applications for the admission of the further supplementary
affidavits of Mr Mort are granted.
10. The applications by the applicant for leave to file an order and
papers in related High Court proceedings are dismissed.
11. The costs orders of the High Court of South Africa, Gauteng
Division, Pretoria and the Supreme Court of Appeal are set aside
and
replaced with no order as to costs.
12. There is no order as to costs.
JUDGMENT
KHAMPEPE J
(Mogoeng CJ, Goliath AJ, Jafta J, Petse AJ and Theron J, concurring):
Introduction
[1]
This is
an application for leave to appeal against the whole judgment and
order of the High Court of South Africa, Gauteng Division,
Pretoria
(High Court) and the Supreme Court of Appeal’s dismissal of the
application by Ms Rosemary Thérésé
Hunter (Ms
Hunter) to compel the Financial Sector Conduct Authority (FSCA) to
procure an investigation into alleged irregularities
that occurred
during the implementation of the “cancellations project”.
More than 4600 pension funds without
properly constituted
boards were cancelled by the registrar in terms of section 27
[1]
of the Pension Funds Act
[2]
(PFA).
[2]
The application is opposed by the first to fifth respondents.
The third and fourth respondents brought a conditional
counter-application
in respect of the issue of costs in the High
Court.  Casual Workers Advice Office (CWAO) has been admitted as
the first amicus
curiae.  Right2Know Campaign (R2K) has brought
an application to be admitted as second amicus curiae.  For the
reasons
set out later, R2K is admitted as an amicus curiae.
[3]
[3]
After the hearing of this matter, Ms Hunter brought a further
application for leave to file an order made by the High Court on 14

March 2018 and a founding affidavit in the same matter. The order set
aside the cancellation of the registrations of 25 pension
funds.
This application is opposed by the respondents.
Parties
[4]
Ms Hunter is the former deputy registrar of pension funds and
deputy executive officer of the FSCA.  Ms Hunter brought this

application in the public interest and in compliance with what she
understood to be her duty as a senior public official to take
all
reasonable steps to ensure that the registrar of pension funds and
her employer at the time, FSCA, acted in compliance with
their
constitutional and statutory duties.
[5]
The FSCA is a juristic person established in terms of section
2(1) of the Financial Services Board Act 97 of 1990.  It was
formerly known as the Financial Services Board, but was substituted
with the FSCA by virtue of section 300(3) of the Financial Sector

Regulation Act.
[4]
[6]
The second respondent is Mr Abel Moffat Sithole N.O., who is
cited in his capacity as the chairperson of the board of the FSCA.
[7]
The third respondent is Mr Dube Phineas Tshidi N.O., who is
cited in his capacity as the executive officer of the FSCA and the
registrar
of pension funds in terms of the PFA.
[8]
The fourth respondent is Mr Jurgen Arnold Boyd N.O., who is
cited in his capacity as a deputy executive officer of the FSCA.

He was the deputy registrar of pension funds or acting deputy
registrar when the cancellations project was implemented during the

period between 2007 and 2013.
[9]
The fifth respondent is Mr Knowledge Malusi Nkanyezi Gigaba
N.O., the former Minister of Finance, who had political and legal
oversight
of the FSCA (Minister).
[10]
The first amicus curiae is CWAO, a non-profit, independent
organisation which provides advice and support to casual, contract,
labour
broker and other precarious workers for purposes of assisting
such workers to defend and improve upon their rights in order to
ensure social justice for such workers.
[11]
The second amicus curiae is R2K, a voluntary association
founded in 2010 to campaign for the free flow of information people
require
to fulfil their social, economic, political and ecological
needs, and to live free from want, in equality and in dignity.
Factual
background
[12]
South Africa’s retirement funding practice has changed
fundamentally in recent decades.  The most relevant change was

occasioned by the decision of many employers to move their
occupational retirement funding agreements from defined benefit funds

to defined contribution funds.  There was a shift from single
employer or stand-alone occupational retirement funds to umbrella

funds.  The consequence of these transfers was that thousands of
the original stand-alone funds subsequently became what is
commonly
known as “orphan funds” – funds that do not have
properly constituted boards and often have no assets
or liabilities.
[13]
In response to the large number of
apparently “orphan funds”, the fourth respondent
initiated the cancellations project.  This
project involved the appointment of “authorised
representatives” or
trustees appointed in terms of section
26(2) of the PFA to manage the funds and facilitate the cancellation
of the registration
of the respective funds.
[5]
This process also involved the publication by the
registrar of notices of the intention to cancel specified funds’
registration
in the Government Gazette, calling on all
interested persons to object to the proposed cancellations by a
specified date.
The FSCA and the registrar
facilitated
the cancellation of the registration of approximately 6757 funds
during the period from 2007 to 2013.
[14]
Shortly after her appointment as
deputy registrar of pension funds at the FSCA, Ms Hunter raised
concerns regarding the manner in
which the cancellations project was
being conducted.  Ms Hunter’s conduct in probing the
legality of the cancellations
project brought her into conflict with
her colleagues, supervisors and subordinates at the FSCA and resulted
in disciplinary complaints
being lodged against her.  The
registrar appointed Gobodo Forensic and Investigative Accounting
(Gobodo) to conduct an investigation
into the conduct of Ms Hunter.
The Gobodo investigation found that Ms Hunter had intentionally
implemented a practice of
deliberately blind-copying internal FSCA
correspondence to external recipients in order to conceal the wider
distribution of correspondence
relating to, amongst others, the
cancellations project.  Ms Hunter alleged that the Gobodo
investigation was unjustified and
gave rise to considerable
expenditure.  She also alleged that the FSCA was guilty of
financial misconduct for not investigating
the commissioning of the
Gobodo investigation.  Ms Hunter therefore requested that the
Minister intervene pursuant to Treasury
Regulation 33.
[6]
The Minister declined to do so on the basis
that it would be premature to intervene whilst there were ongoing
internal investigations.
[15]
Ms Hunter lodged an internal complaint with the FSCA
(NCN 1) where she raised her concerns about the alleged unlawful
conduct in
respect of the cancellations project.
[7]
In response, the
FSCA appointed former Judge
of the Constitutional Court, Justice O’Regan, to chair an
inquiry into
Ms Hunter’
s NCN 1.
The O’Regan report
[8]
found, amongst other things, that the registrar’s
appointment of the “authorised representatives” was
unlawful
but that the issue of the lawfulness of the appointment of
the section 26(2) trustees was uncertain.  Justice O’Regan

recommended that the FSCA appoint an independent firm of auditors to
conduct an investigation of a statistically significant sample
of
funds to determine the likelihood of material financial prejudice
that may have occurred due to the manner in which the cancellations

project was conducted.
In her report,
Justice O’Regan stated that no evidence was placed before her
that suggested that there were improper, dishonest
or corrupt actions
in administering and dealing with dormant pension funds.
[16]
Pursuant to Justice O’Regan’s recommendations, the
FSCA appointed KPMG to conduct an investigation.  Dissatisfied

with the FSCA’s response to her complaints, Ms Hunter lodged a
second internal complaint (NCN 2) dealing with the FSCA’s

failure to properly deal with her allegations against the
registrar.
[9]
KPMG investigated a sample of 510 cancelled funds and submitted
its report in October 2015.  In its report, KPMG indicated
that
it was unable to confirm that the information available to the
registrar when taking the decision to cancel the funds in question

was sufficient for a reasonable person in the position of the
registrar to have concluded that the funds had ceased to exist.

KPMG then recommended that a further investigation be conducted with
a view to provide “a final determination and quantification
of
actual prejudice, if any”.
[17]
The FSCA was not satisfied with the KPMG investigation and
report.  In its view, KPMG merely calculated a statistical
possibility
of prejudice using a computer analysis of only the FSCA’s
records and based their assessment as auditors on the reliability
of
the evidence in possession of the FSCA that the funds no longer had
any assets or liabilities.  In its report, KPMG merely
stated
that it had calculated the indicative potential prejudice and that
further investigation would have to be done to determine
the actual
prejudice, if any.  KPMG reported to the FSCA that they had made
an assessment of the “likeliness of potential
prejudice”
which it said was “a lower burden of certainty than prima
facie”.  When the FSCA expressed its
dissatisfaction, KPMG
suggested that its report be referred to Justice O’Regan for
consideration.  The FSCA accordingly
approached Justice O’Regan
but she declined to review the report citing her lack of expertise in
the field of pension law
and recommended that the FSCA approach
senior counsel who specialised in the field of pension law instead.
[18]
The FSCA proceeded to appoint Mr Mort, an attorney
specialising in pension funds, with the assistance of an experienced
pension
funds actuary, to review the KPMG report and advise the FSCA
on the way forward.  Mr Mort submitted his First Inspection

Report on 7 June 2016 in which he concluded that, although some of
the funds assessed had assets at the time of their cancellations,

there was no evidence of any material financial prejudice having been
sustained by any member, beneficiary or creditor of those
funds.  Mr
Mort submitted his Second Inspection Report on 24 November 2016
in which he found that there was no indication
that any section 26(2)
trustee or authorised representative employed by an administrator had
acted in a manner that conferred
an improper advantage or benefit on
their employer, being the pension fund administrators.  The
Third Inspection Report was
issued on 21 December 2016 wherein
Mr Mort found that despite certain areas of concern, it was apparent
that there was an
ongoing effort by the respective administrators to
trace the beneficiaries of the unclaimed benefits.
Litigation history
High Court
[19]
In the High Court Ms Hunter sought an
order compelling the
FSCA to unconditionally make the copies
of the final O’Regan and KPMG reports available; compelling the
FSCA to investigate
the matters in Ms Hunter’s NCN 1; and
compelling the FSCA, alternatively the Minister, to investigate the
matters referred
to in Ms Hunter’s NCN 2.  Subsequent to
the delivery of her replying affidavit and a mere six weeks before
the hearing,
Ms Hunter applied to amend her original notice of
motion.  In the amended notice of motion, Ms Hunter sought
additional orders
declaring that the respondents had acted unlawfully
in the execution of the cancellations project and in handling her
complaints
in this regard.  In addition, Ms Hunter
elaborated on the exact matters which she wished to be investigated
in the investigation
she sought to compel in the original notice of
motion.  She also set out in great detail the exact manner in
which the proposed
investigation should be conducted and who would
bear the costs of this investigation.
[20]
The High Court held that Ms Hunter did not have the necessary
standing in law to claim the relief sought in the original notice of

motion or the amended notice of motion and therefore refused the
application to amend the notice of motion and dismissed the main

application.
[21]
On the
issue of costs, the High Court held that the application was not one
of genuine constitutional import and thus the principle
set out in
Biowatch,
[10]
which requires that an unsuccessful party in proceedings against the
state be spared from paying the state’s costs in constitutional

matters would not apply.  The High Court ordered the FSCA to pay
Ms Hunter’s costs until 1 August 2016, and the second
to fifth
respondents to bear their own costs up to 1 August 2016.  Ms
Hunter was directed to pay the costs of the respondents
from 2 August
2016.
Application for leave to appeal in the High Court and the Supreme
Court of Appeal
[22]
Both
the High Court and the Supreme Court of Appeal dismissed Ms Hunter’s
application for leave to appeal with costs, on the
grounds that there
were no reasonable prospects of success and no other compelling
reason why the appeal should be heard.
This Court
[23]
In this Court, Ms Hunter contends that the FSCA has a duty to
conduct an investigation into the alleged irregularities in the
cancellations
project particularly in view of the fact that there is
substantial evidence of actual financial prejudice as a result of the
project.
Ms Hunter further contends that all other
investigations conducted by the FSCA are inadequate and that this
Court should
make a supervisory court order compelling the FSCA to
conduct a further investigation.
[24]
The FSCA and second respondent submit that the manner in which
the cancellations project was conducted was perfectly lawful and that

Ms Hunter has failed to prove that there were any systemic
irregularities.  The FSCA and second respondent argue that
although
the appointment of the “authorised representatives”
may have been unlawful, this did not affect the lawfulness of the

registrar’s decision to cancel the funds in terms of section 27
of the PFA.  They therefore submit that the FSCA is
under no
obligation or duty to investigate the cancellations project.  Even
if there was such a duty, the first and second
respondents submit
that this duty has been properly discharged and there is no basis for
Ms Hunter to demand a “bigger and
better” investigation.
The first and second respondents also contend that the
structural supervisory relief sought
by Ms Hunter is not competent.
[25]
The third and fourth respondents submit that neither the
relief claimed, nor the supposed cause of action pleaded in the
founding
affidavit, justified their joinder as parties to the
proceedings as no relief was sought against them and seek a punitive
costs
order against Ms Hunter in this regard.  The third and
fourth respondents also seek to cross-appeal on the issue of costs in

the High Court in the event that Ms Hunter is granted leave to
appeal as they allege that the High Court arbitrarily deprived
them
of a substantial portion of their costs.
[26]
The Minister contends that Ms Hunter failed to establish any
culpable remissness on the part of the FSCA which warrants
ministerial
intervention.  The Minister submits that the
cancellations project is still being investigated and the employment
grievances
have been facilitated to exhaustion, and Ms Hunter’s
employment has run its full course.  The Minister further
submits
that the Public Finance Management Act (PFMA)
[11]
issue does not arise as the expenditure incurred in procuring the
services of Gobodo did not constitute an irregular expenditure
and
there was no other form of financial misconduct proven by Ms Hunter.
Thus, Ms Hunter has not made out a proper case for
structural relief
at all, least of all one including the Minister.
[27]
CWAO submits that the registrar did not adequately take into
account the duty to consult the beneficiaries in conducting the
cancellations
project and that this failure was unlawful.  CWAO
seeks for this Court to recognise that the registrar has a proactive
duty
to consult with fund members and beneficiaries before taking a
decision to cancel the fund, which includes the decision to search

for the respective beneficiaries.
[28]
R2K
submits that, having regard to this Court’s decision in
AllPay
,
[12]
the irregularities in the cancellations project cannot be overlooked
merely because they may not have resulted in material financial

prejudice.  In addition, R2K contends that, because a public
functionary bears a constitutional obligation to approach a court
to
set aside its own irregular administrative act that public
functionary must first ascertain whether the particular circumstances

of the identified irregularity trigger that obligation, which
involves a duty to investigate.  R2K also argues that the
cancellations
project has the potential to affect the right to
receive a pension which finds expression in both the Constitution and
international
law.  R2K therefore submits that the FSCA has not
procured any investigation into the irregular process of the
cancellations
project, only its outcome.  R2K submits that even
if the investigations procured by the FSCA had indeed encompassed the
procedural
irregularities in the cancellations project, the FSCA
would still not have complied with its constitutional obligations to
investigate
as section 7(2) of the Constitution requires the
investigation to be competent, independent and transparent.  Last,
R2K submits
that the obligation on the FSCA to have its
irregularities investigated competently, independently and
transparently is also reinforced
by the IOPS Principles,
Guidelines and Good Practices,
[13]
which the FSCA is obliged to observe.
Jurisdiction
[29]
This
application concerns the constitutional duties of a public
functionary, the FSCA, to investigate allegations of irregularities

in carrying out its constitutional mandate as well as issues of
governance and accountability.  This is clearly a matter that

engages this Court’s jurisdiction.
Legal standing
[30]
Whilst Ms Hunter does not go into great lengths as to why she
submits that she is acting in the public interest, in light of the

generous approach adopted by this Court regarding legal standing in
public interest matters, it is clear that Ms Hunter has standing
in
terms of section 38(d) of the Constitution.  With her intimate
knowledge and expertise, Ms Hunter is essentially seeking
to redress
the possible prejudice sustained by the vulnerable members of the
respective cancelled funds and thus, this alone should
enable her to
bring this application in the public interest.
Leave to appeal
[31]
As to leave to appeal, there is an important constitutional
issue to be considered here, namely whether the FSCA has a
constitutional
duty to investigate alleged irregularities in the
manner in which it cancelled thousands of pension funds.  In
addition, the
application has reasonable prospects of success.  It
is in the interests of justice that leave to appeal be granted.
[32]
In the third judgment, my brother,
Cachalia AJ, concludes that Ms Hunter’s application for leave
to appeal should be dismissed
on the basis that it is not in the
interests of justice to grant leave in these circumstances.  He
holds that Ms Hunter’s
case, that the FSCA had a duty to
investigate systemic irregularities in the cancellations project, was
not properly made out in
her founding affidavit or in argument before
the High Court, and that her cause of action has mutated since it was
first instituted.
While Ms Hunter’s pleadings have
evolved to some extent over the course of the litigation, I am
satisfied that
the thrust of her case was sufficiently pleaded in the
papers and that the respondents had sufficient opportunity to respond
thereto.
It is therefore in the interests of justice for leave
to appeal to be granted.
Condonation
[33]
Condonation has been sought for the
following:
(a)
the
late filing of the application for leave to appeal;
(b)
the
late filing of Ms Hunter’s written submissions;
(c)
the
late filing of the third and fourth respondents’ written
submissions; and
(d)
the
late filing of R2K’s written submissions.
[34]
The respective parties have advanced
good reasons for the late filing of their papers and the delay in all
is slight.  There
was also no prejudice suffered by any of the
parties as a result of the late delivery of the papers.  It is
therefore in the
interests of justice to grant condonation for all.
Application
for admission of supplementary affidavits
[35]
It is in the interests of justice
that the supplementary affidavits of Mr Mort be admitted by this
Court as they provide essential
updates on the current status of the
investigation being conducted by the FSCA.
[14]
The affidavits also afford Mr Mort, the FSCA and the second
respondent an opportunity to respond to the allegations made
by Ms
Hunter concerning Mr Mort in her written submissions and it is
therefore only fair that they be admitted.
Admission of R2K
as second amicus curiae
[36]
R2K has raised sufficient new issues
which have not been addressed by the other parties and which are
helpful to this Court in considering
this application.
It
is therefore in the interests of justice that it be admitted as
second amicus curiae.
Issues for
determination
[37]
The following issues arise for consideration—
(a)
whether
public functionaries have a general duty to investigate
irregularities;
(b)
whether
the appropriate cause of action in this case was a review in terms of
the Promotion of Administrative Justice Act
[15]
(PAJA); and
(c)
whether
the Minister was required to intervene in respect of Ms Hunter’s
governance complaint.
General duty on public functionaries to investigate irregularities
[38]
The Constitution does not impose a general duty on public
functionaries to investigate irregularities pertaining to the
exercise
of public power.  The exercise of public power is
controlled by means of review.
[16]
Central to a review claim is section 33 of the Constitution
which guarantees administrative justice rights conferred
on
everyone.
[17]
PAJA is the legislation enacted to give effect to these rights.
Ordinarily a review application must be brought in
terms of
PAJA.
[18]
However, in certain instances a review application may not be based
on PAJA.  This may arise from the fact that the
impugned
decision does not constitute “administrative action” as
defined in PAJA.
[19]
In those circumstances, the exercise of public power can be
challenged by way of a legality review in terms of section 1(c)
of
the Constitution, as a component of the rule of law.
[39]
Before 1994 our law recognised three types of review, namely
review of decisions of inferior courts; special statutory review and

the common law review of administrative decisions.
[20]
With regard to administrative decisions, the common law and statutory
reviews were the only options available to applicants
who sought
review.  Statutory review could also be invoked only in
circumstances where a specific statute made provision for
a review.
Unless specifically mentioned in a particular statute, there was no
general duty on public officials to investigate
irregularities in
decisions they had taken.  Nor was there a duty on those
officials to apply for the review of invalid decisions.
[40]
Although
the legal standing of public officials to apply for the review of
their own decisions was acknowledged in
Pharmaceutical
Manufacturers
,
[21]
the duty on these officials to seek review was proclaimed later in
decisions like
Khumalo
and
Kirland Investments.
[22]
However, in
Khumalo
this Court went further in the
special circumstances of that case to hold that officials in the
public administration have a duty
to investigate and correct
unlawfulness.
[41]
A question has arisen whether the FSCA had a duty to
investigate alleged irregularities relating to the cancellation of
pension
funds.  For the reasons that follow, it is not necessary
to go into detail about the existence or otherwise, the basis and

nature of the FSCA’s duty to investigate.  For the purpose
of deciding this matter, the need to make a determination
in relation
to the applicability or otherwise of
Khumalo
does not arise.
[42]
It suffices to say that the FSCA has self-evidently always
recognised that it was duty-bound to investigate any alleged or
potential
irregularity and acted in line with its recognition of this
responsibility, whenever circumstances so required.  It was,
precisely
for this reason that resources were generously deployed to
not one, not two but at least three investigations with a view to
determine
whether irregularities that are potentially prejudicial to
pensioners were committed in the cancellations process.
[43]
The services of Justice O’Regan, KPMG and Mr Mort were
enlisted in recognition of the existence of a duty to investigate.

All these personalities and institutions are eminently well-suited to
do justice to the assignment they were charged with.  There
can
therefore be no doubt that the FSCA was intent on getting to the
bottom of the problem.  Not only were mistakes unearthed
and
highlighted, but Mr Mort also indicated in his last report that
the administrators were involved in an ongoing process
of trying to
locate beneficiaries of unclaimed benefits.
[44]
For these reasons, the FSCA has not only recognised and
discharged its duty to investigate whatever is worthy of an
investigation,
but administrators have also embarked on the
responsible exercise of ensuring that the interests of the admittedly
vulnerable pensioners
are not compromised.
[45]
Crucially, public sector functionaries too deserve the space
to carry out their duties free from outside interference that
virtually
amounts to unintended micromanagement.  It ought to be
enough that they have done what is reasonably necessary to achieve a

process that would potentially yield a credible, transparent,
inclusive and unbiased outcome.  And this, they have done.
[46]
The danger with the approach adopted by Ms Hunter is that it
is very likely to yield a never-ending investigation.
Investigations
would be difficult to bring to finality as long as, in
her view, something might just be uncovered.  This observation
must
be understood within the context of the several credible
investigations already conducted by people whose capacity to address
actual
or perceived irregularities is beyond doubt.  One would
therefore not be too hard on Ms Hunter by suggesting that even if
another investigation were to be sanctioned by this Court, it may
still not satisfy Ms Hunter’s quest for “justice”,

as she sees it.
[47]
These kinds of investigations must at some stage come to an
end.  Mr Mort’s expertise is beyond reproach.
Subject
to some concerns that he has expressed, reasonably
satisfactory investigations have now been conducted.  And Ms
Hunter must
live with that reality.  It seems to be
irreconcilable with an assumption or acceptance that the FSCA is run
by responsible
and competent people to order them to conduct
investigations additional to those already conducted.
PAJA review as the appropriate cause of action
[48]
The key question is whether Ms Hunter’s complaint about
the cancellation of funds constituted administrative action referred

to in section 33(1) of the Constitution.
[49]
It cannot be gainsaid that the registrar’s decision to
cancel the “orphan funds” constitutes administrative
action
as defined in PAJA.  In
Gijima
[23]
this Court held:
“[T]he right to administrative action that is lawful,
reasonable and procedurally fair (section 33(1)) and the right of
everyone whose rights have been adversely affected to be given
written reasons (section 33(2)) are enjoyed by private persons, not

organs of state.  Therefore, when section 33(3)(a) stipulates
that national legislation which provides for the ‘review
of
administrative action’ must be enacted, that can only be
administrative action that relates to the rights enjoyed by private

persons under section 33(1) and (2).”
[24]
As a general rule,
PAJA must therefore apply unless the review is brought by a public
functionary in respect of its own unlawful
decision.  In this
case, it is Ms Hunter (and not the FSCA itself) who seeks relief
against the registrar’s alleged
unlawful decisions.  Ms
Hunter is not acting on behalf of the FSCA.  She is acting in
the public interest.  Anybody
who constitutes “the public”
on whose behalf she has assumed the responsibility to act is entitled
to challenge the
fairness of the administrative action that has
aggrieved her in terms of PAJA.  She, having stepped straight
into their shoes,
enjoys all the rights and obligations they each
would ordinarily have shouldered had they chosen to be litigants.
PAJA must
therefore apply to Ms Hunter’s claim.
[50]
In the circumstances, if Ms Hunter
is of the view that the registrar’s decision to cancel the
registration of the respective
funds was unlawful, the appropriate
remedy would be to review that decision in terms of PAJA on the basis
that those decisions
were ones that a reasonable decision-maker could
not reach rather than seeking relief in the form of a further
investigation.  This
is not a case of the remedy of review being
deficient and not affording Ms Hunter effective relief – she
could easily have
instituted a review application based on the
unlawfulness mentioned in her founding affidavit.  On the same
score, if Ms Hunter
is aggrieved that the FSCA has failed to give
effect to the allegations contained in her NCN 1 and NCN 2, she
should also have
that decision reviewed.
[51]
In terms of Rule 53 of the Uniform
Rules of Court, service of Ms Hunter’s founding papers would
have triggered the FSCA’s
obligation to file a full record
pertaining to the impugned decisions with the registrar of the High
Court.  She would then
have had access to those records to
assess whether there were irregularities supporting any grounds of
review, and it would have
been open for her to amend her papers in
that regard.  This would also have allowed the relevant court to
be in a proper position
to consider the lawfulness of the decisions,
with the benefit of a Rule 53 record.  As an attorney, Ms
Hunter must have
been aware of these procedural advantages which were
available to her.  But she chose to ride the wrong horse.
Ms Hunter’s
appeal must accordingly fail.
Commissioning of Gobodo Report
[52]
Ms Hunter’s governance
complaint regarding the commissioning of the Gobodo report and the
Minister’s alleged failure
to intervene should similarly not be
entertained.  The decision to commission an investigation
clearly constitutes administrative
action which ought to stand until
set aside by a competent court.  Ms Hunter has not sought
to review the decision and
it would be inappropriate to allow Ms
Hunter to launch a peripheral attack on that decision in this Court.
Ms Hunter’s
counsel conceded in oral argument that this
decision could have been challenged by way of review proceedings.
In light of
this, the Court ought not to engage or consider this
issue.
Third and fourth
respondents’ conditional counter-appeal
[53]
The third and fourth respondents seek to cross-appeal on the
issue of costs in the High Court in the event that Ms Hunter is
granted
leave to appeal as they allege that the High Court
arbitrarily deprived them of a substantial portion of their costs.
The
third and fourth respondents submit that neither the relief
claimed nor the cause of action pleaded by Ms Hunter justified their

citation and joinder as parties to the proceedings.
[54]
In my view, there was no misjoinder by Ms Hunter of the third
and fourth respondents in the High Court.  The allegations

made by Ms Hunter regarding the need for an investigation by the FSCA
directly implicated the third and fourth respondents.
In
any event, the third and fourth respondents did not formally object
to their joinder in the High Court but instead chose to
participate
fully in the proceedings.  The third and fourth respondents
could also have merely abided by the outcome of the
proceedings,
thereby avoiding incurring any costs, and addressing the allegations
made by Ms Hunter through the FSCA’s papers.
There is
also no basis for a punitive costs order to be granted against Ms
Hunter.
[55]
In the circumstances, I am of the view that the third and
fourth respondents’ conditional cross-appeal should be
dismissed.
Application for
leave to file copies of the order and papers in a related matter
[56]
After the hearing of this matter, Ms Hunter filed an
application for leave to file copies of a High Court application
brought by
Liberty Group Limited (Liberty) against the registrar to
set aside the cancellation of 25 funds, as well as the order granting
the setting aside of deregistration of those funds.  Ms Hunter
requests leave to place these additional documents before this
Court
without comment or argument.
[57]
Although it is extraordinary and unusual for a litigant to
file further papers after pleadings have closed and judgment has been

reserved, this Court is entitled to admit the same provided that it
is in the interests of justice to do so and it ensures full

ventilation of the issues.
[25]
That being said, the additional papers that Ms Hunter seeks to
have admitted consists only of Liberty’s notice of motion
and
founding affidavit, as well as the High Court’s order.  There
is no reasoned judgment for this Court to consider
and this Court
would, therefore, have to rely merely on the submissions made by
Liberty in its founding affidavit.  In my
view, it would be
severely prejudicial to the respondents if this Court were to admit
what is in essence an additional affidavit
containing new facts and
evidence without allowing them an opportunity properly to respond
thereto, which would require an additional
hearing.  In any
event, the contents of the additional papers are not necessary for
this Court to make a determination on
the question before it –
whether the FSCA has a duty to investigate the alleged irregularities
and, if so, whether this duty
has been discharged.  It is,
therefore, not in the interests of justice for this Court to admit
the additional papers.
Costs
High Court and Supreme Court of Appeal
[58]
The costs orders of the High Court and the Supreme Court of
Appeal should be set aside because the application is one of genuine

constitutional import.  Clearly, a challenge to a public body’s
alleged failure to comply with its constitutional obligations
is a
matter of “constitutional import” and the principle set
out in
Biowatch
[26]
which provides that an unsuccessful party in proceedings against the
state should ordinarily be spared from paying the State’s
costs
in constitutional matters, should therefore apply.
This Court
[59]
For the same reasons as above, the principle set out in
Biowatch
should apply and no order as to costs should be made
in this Court.
[60]
Regarding the request by the first amicus curiae for costs to
be awarded to it in respect of the opposition of the respondents to

its application for admission as amicus curiae, there is no
basis for this Court to make this order.
Order
[61]
The following order is made:
1.
The
application for leave to appeal is granted.
2.
The
appeal is dismissed.
3.
The
third and fourth respondents’ conditional counter-appeal is
dismissed.
4.
The
application by the Right2Know Campaign (R2K) for admission as amicus
curiae is granted.
5.
Condonation
is granted for the late filing of the application for leave to
appeal.
6.
Condonation
is granted for the late filing of the applicant’s written
submissions.
7.
Condonation
is granted for the late filing of the third and fourth respondents’
written submissions.
8.
Condonation
is granted for the late filing of R2K’s written submissions.
9.
The
applications for the admission of the further supplementary
affidavits of Mr Mort are granted.
10.
The
applications by the applicant for leave to file an order and papers
in related High Court proceedings are dismissed.
11.
The
costs orders of the High Court of South Africa, Gauteng Division,
Pretoria and the Supreme Court of Appeal are set aside and
replaced
with no order as to costs.
12.
There
is no order as to costs.
FRONEMAN J
(Dlodlo AJ and Madlanga J concurring):
Introduction
[62]
Do state organs and public functionaries have a duty to
investigate their own potentially unlawful conduct?  And if they
do,
when is the duty triggered?  What is the nature and extent
of the investigation required?  The answer arrived at in this

judgment is that
whenever the attention of
responsible functionaries is drawn to a potential irregularity they
have a duty to launch a proportionate
investigation into that
potential irregularity.  What is proportionate in any given case
will depend on the seriousness of
the potential irregularity and the
basis upon which the allegation of impropriety is founded.
[63]
Accountability, responsiveness and openness are
fundamental to our attempt at a constitutional democratic
government.  That
fundamental constitutional concern is what
underlies the reasoning in this judgment and explains why I part ways
with the judgment
of Khampepe J (first judgment).  The first
respondent, the FSCA, is a public functionary and is bound to uphold
the constitutional
standards of accountability, responsiveness and
openness in its own conduct.  It has failed to do that.
[64]
I agree that leave to appeal must be
granted.  On the facts, I conclude that the FSCA has not
fulfilled its investigative duty
in relation to the cancellations
project, and that the appeal should succeed to that extent.
[65]
It is necessary to deal briefly with
the undisputed facts.
Facts
[66]
For present purposes, only the essentials need to be repeated.
[67]
The change from single employer to umbrella funds occasioned
the large-scale cancellation of so-called “orphan funds”

by the registrar under the PFA.  During the period from January
2007 to September 2013 the registrations of approximately
6757 funds
were cancelled.  Soon after her appointment as deputy registrar
of pension funds, Ms Hunter questioned the cancellation
process.
Her complaints called into question 4651 of the cancellations and
gave rise to the O’Regan report, the KPMG
report and the
various Mort reports.
[27]
A sample of 510 of the 4651 funds was investigated.
[28]
Standing
[68]
I agree with the first judgment that Ms Hunter had standing to
bring the application. It is important, however, to be clear about

the nature of her application.  The case does not involve an
infringement of any individual fundamental right of the applicant.

What she seeks, in the public interest, is to compel the FSCA to
fulfil its constitutional duty to supervise and enforce the laws
that
protect the interests of pension beneficiaries and pension funds.
Central to her case is the existence of a duty on
the part of FSCA to
investigate potentially unlawful state action committed under its
remit.
Further
application
[69]
I also agree with the first judgment that it is not in the
interests of justice to admit the additional papers submitted to this

Court after the hearing had concluded.  The Court was aware that
other proceedings were ongoing and I take notice of their
outcome.
The contents of the affidavits and any other material in Ms Hunter’s
additional papers that were not already
in the public domain do not
take the present matter any further.
Pleadings
[70]
The
third judgment by Cachalia AJ accepts the respondents’
submission that the alleged duty to investigate is an entirely
new
cause of action, not advanced in the High Court, and that Ms Hunter
should not be heard by this Court.  I do not agree.
There
may be some superficial traction in the argument, but the real
question is about prejudice and justice, not formalistic rules.
[29]
[71]
In
application proceedings the parties must know the case that must be
met and in respect of which they must adduce evidence in
the
affidavits.
[30]
Right from the start the respondents knew that as part of Ms Hunter’s
case she required an adequate investigation into
the propriety of the
cancellation of the funds.  The third judgment says “the
Judge [in the High Court] observed, correctly
I think, that the
relief sought in the original notice of motion was for an
investigation into the cancellations project”.
[31]
There would be no sense in seeking a sub-standard investigation.
Ms Hunter must then have been seeking an adequate
investigation into
the cancellations project – an investigation that met the
FSCA’s constitutional duties.
[72]
When she initially brought proceedings, Ms Hunter did not have
the relevant information available herself and sought access to the

O’Regan and KPMG reports in substantiation.  These reports
were made available and, because the FSCA was unhappy with
the KPMG
report, it also produced the Mort reports of its own accord.  At
the hearing before this Court the FSCA argued that
the Court should
be allowed to consider the affidavits from Mr Mort on the basis that
this Court has held in
Mazibuko
that
new evidence is admissible on appeal
where it “might be of assistance in determining the appropriate
relief to be granted”.
[32]
[73]
This new evidence should be admitted.  The result is that
the matter before us must be decided on the common cause facts
provided
by the FSCA, a classic example of the proper approach to
evidence in applications in our law.
[74]
Does it matter that the legal argument based on these facts
may be different from those advanced in the High Court?  No.

Affidavits should not contain argument in any event.
[33]
It is an incident of the rule of law that a court should raise and
decide a point of law arising from the facts even if the
parties
themselves did not.  The only question is prejudice to any of
the parties.  I can see none.  The FSCA has
had ample
opportunity to put all the facts at its disposal before court and the
matter must be decided on an acceptance of those
facts.  Its
legal argument is that, on those facts, there is no duty to
investigate and, even if there was, the investigations
already
completed were sufficient to fulfil that duty.
A duty to
investigate?
[75]
I now turn to whether the FSCA had a duty to investigate the
cancellation decisions.
[76]
That starting point is a general statement in
Khumalo
[34]
where this Court held that state organs are obliged to investigate
potentially unlawful state conduct of their own making when
it comes
to their attention:
“
When, as in this case, a
responsible functionary is enlightened of a potential irregularity,
section 195 [the Constitution]
lays
a compelling basis for the founding of a duty on the functionary to
investigate
and, if
need be, to correct any unlawfulness through the appropriate
avenues.  This duty is founded, inter alia, in the emphasis
on
accountability and transparency in section 195(1)(f) and (g) and the
requirement of a high standard of professional ethics in
section
195(1)(a).”
[35]
[77]
The first judgment holds that it is not necessary to determine
the basis and nature of the FSCA’s duty to investigate, nor
to
make a determination as to the applicability of
Khumalo
.
[36]
I do not agree.
[78]
The principles of accountability, responsiveness and openness
apply to the public administration in all its forms, not only those

governed by the Public Service Act (Proclamation 103 of 1994).
Section 195 is central to the issue in this case.  It
is the
main pillar upon which the argument rests.  Ms Hunter brought
her case in an attempt to hold the FSCA accountable.
She asked
the Courts to scrutinise the registrar’s compliance with his
constitutional duties.
[79]
The registrar is clearly a public functionary.
[37]
Moreover, section 195 sets out the basic values and principles
governing public administration.  It is those principles
that
are at issue.  Section 195 and the passage quoted from
Khumalo
could scarcely be more relevant.
[80]
That passage correctly and logically implies that there is a
legal duty to investigate potential, as yet unproven, unlawful
conduct.
It is difficult to conceive of substantive reasons
why, if public functionaries have a duty to undo unlawful conduct,
the law should
not require them to launch an investigation when the
possibility of unlawful conduct is raised.
[81]
The investigative duty set out in
Khumalo
does
not require public functionaries to launch full-scale investigations
into every allegation that is brought to their attention.

Rather, public functionaries must launch a proportionate
investigation into potential irregularities.
[82]
Where the alleged irregularity is
minor, an investigation might be very small indeed – perhaps
just a phone call to check
the correct position.  Where an
allegation is credible and the alleged irregularity is serious, a
full-scale investigation
might well be called for.  When an
allegation is completely spurious, it points to no potential
irregularity at all and no
investigation can rightly be required of a
public functionary.
[83]
The efficiency of public
administration will not be materially undermined by the investigation
of potential unlawful state conduct.
Proportionate
investigations aid efficiency, rather than undermine it.
[84]
In short, whenever the attention of
a responsible functionary is drawn to a potential irregularity, they
have a duty to launch a
proportionate investigation into it.
What is proportionate in any given case will depend on the
seriousness of the potential
irregularity and the basis upon which
any allegation is founded.
[85]
In the present matter, the
conclusion that an investigative duty exists is buttressed by
considering the wording of the Constitution
and the legislation that
applies specifically to the FSCA.
[86]
It is a founding value of our Constitution that our system of
government, which includes the public administration, must be
accountable,
responsive and open.  Section 1(d) of the
Constitution provides:
“The Republic of South Africa is one, sovereign, democratic
state founded on the following values:
. . .
(d)
Universal adult suffrage, a national common voters roll, regular
elections and a multi-party system of democratic government,
to
ensure accountability, responsiveness and openness.”
Section 195(1)
provides in relevant part:
“Public administration must be governed by the democratic
values and principles enshrined in the Constitution, including
the
following principles:
(a)
A high standard of professional ethics must be promoted and
maintained.
(b)
Efficient, economic and effective use of resources must be promoted.
(c)
Public administration must be development-oriented.
(d)
Services must be provided impartially, fairly, equitably and without
bias.
(e)
People’s needs must be responded to, and the public must be
encouraged to participate in policy-making.
(f)
Public administration must be accountable.
(g)
Transparency must be fostered by providing the public with timely,
accessible and accurate information.”
Section 195(2)
provides that—
“
[T]he above principles
apply to—
(a)
administration in every sphere of government;
(b)
organs of state; and
(c)
public enterprises.”
[87]
The values of accountability, responsiveness and openness are
pervasive in all spheres of public life.  In
Khumalo
,
this Court stated:
“
It is the duty of the
courts to insist that the state, in all its dealings, operates within
the confines of the law and, in so doing,
remains accountable to
those on whose behalf it exercises power.”
[38]
[88]
In the
EFF 1
judgment
[39]
the Chief Justice said:
“
One of the crucial
elements of our constitutional vision is to make a decisive break
from the unchecked abuse of State power and
resources that was
virtually institutionalised during the apartheid era.  To
achieve this goal, we adopted accountability,
the rule of law and the
supremacy of the Constitution as values of our constitutional
democracy.  For this reason, public
office-bearers ignore their
constitutional obligations at their peril.  This is so because
constitutionalism, accountability
and the rule of law constitute the
sharp and mighty sword that stands ready to chop the ugly head of
impunity off its stiffened
neck.”
[40]
He then cited
Nyathi
:
[41]
“
Certain values in the
Constitution have been designated as foundational to our democracy.
This in turn means that as pillar-stones
of this democracy, they must
be observed scrupulously.  If these values are not observed and
their precepts not carried out
conscientiously, we have a recipe for
a constitutional crisis of great magnitude.  In a State
predicated on a desire to maintain
the rule of law, it is imperative
that one and all should be driven by a moral obligation to ensure the
continued survival of our
democracy.”
[42]
[89]
There is no real evidence here that the FSCA, or any of its
employees, have been corrupt.  While this is not a case about
corruption
and malfeasance, it is about whether the FSCA’s
apparently good faith attempts to investigate the cancellations
project pass
constitutional muster.  The issue is whether they
have been diligent enough.  Complacency may be as great a danger
as
malice and could lead to maladministration and corruption.
In the words of Chaskalson P:
“
Corruption and
maladministration are inconsistent with the rule of law and the
fundamental values of our Constitution.  They
undermine the
constitutional commitment to human dignity, the achievement of
equality and the advancement of human rights and freedoms.
They
are the antithesis of the open, accountable, democratic government
required by the Constitution.  If allowed to go unchecked
and
unpunished they will pose a serious threat to our democratic state.
There can be no quarrel with the purpose sought to
be achieved by the
Act, or the importance of that purpose.  That purpose must,
however, be pursued in accordance with the
provisions of the
Constitution.  The appeal in the present case depends upon
whether this has been done.”
[43]
[90]
The vulnerability of pensioners requires similar vigilance.
This has long been recognised in our law.  Section 58(1) of
the
FSRA provides:
“
In order to achieve its
objective, the Financial Sector Conduct Authority must—
(a) regulate and supervise, in
accordance with the financial sector laws, the conduct of financial
institutions;
(b) cooperate with, and assist,
the Reserve Bank, the Financial Stability Oversight Committee, the
Prudential Authority, the National
Credit Regulator, and the
Financial Intelligence Centre, as required in terms of this Act;
(c) cooperate with the Council
for Medical Schemes in the handling of matters of mutual interest;
(d) promote, to the extent
consistent with achieving the objective of the Financial Sector
Conduct Authority, sustainable competition
in the provision of
financial products and financial services, including through
cooperating and collaborating with the Competition
Commission;
(e) promote financial inclusion;
(f) regularly review the
perimeter and scope of financial sector regulation, and take steps to
mitigate risks identified to the
achievement of its objective or the
effective performance of its functions;
(g) administer the collection of
levies and the distribution of amounts received in respect of levies;
(h) conduct and publish research
relevant to its objective;
(i) monitor the extent to which
the financial system is delivering fair outcomes for financial
customers, with a focus on the fairness
and appropriateness of
financial products and financial services and the extent to which
they meet the needs and reasonable expectations
of financial
customers; and
(j) formulate and implement
strategies and programs for financial education for the general
public.”
[91]
In
Pepcor
[44]
the Supreme Court of Appeal stated:
“
The general public
interest requires that pension funds be operated fairly, properly and
successfully and that the pension fund
industry be regulated to
achieve these objects.  That is the whole purpose which
underlies the Act.  Of course only a
particular fund and the
members of that fund may be directly affected by a particular
decision of the registrar under section 14(1)(c).
But that does
not derogate from the fact that the function the registrar performs
is performed in the public interest generally.
In addition, the
interests of the very persons affected by the decision require the
registrar to perform his functions properly
and to seek judicial
review of his own decisions should he not have done so.  The
prejudice to the registrar in allowing a
certificate improperly given
in terms of section 14(1)(e), and transfers pursuant thereto, to
stand consists in his not having
had an opportunity to evaluate the
true facts in arriving at decisions which he is required to make in
the protection of the public
interest generally, and the particular
interests of those directly affected.  His function is
compromised.
. . .
The nature of the functions
conferred on the [FSCA] by section 3(a) of the Financial Services
Board Act, both in its original form
and in its amended form, entitle
and oblige the [FSCA] to seek the review by the High Court of
decisions of the registrar under
the Act which it considers to be
invalid and which, if not reversed, would prejudice the public
interest.  The [FSCA] has
an administrative interest, on behalf
of the public, in the proper exercise of the control vested in the
registrar.”
[45]
[92]
So too the High Court in
De Wet N.O.
:
[46]
“
The various statutory
provisions to which I have referred . . . reflect that the registrar
has very wide powers of supervision and
control over pension funds.
I have little doubt that it was thought by the Legislature to be in
the public interest that
such supervisory powers and duties should be
conferred on the registrar.  Many members of the public would
belong at some
stage or another to pension funds and the security of
their pensions would be of vital importance to most of them.  It
is
in the public interest that the administration of pension funds
should ensure that members are fairly dealt with and that the receipt

of their pensions is not placed in jeopardy.
I think it would be correct to
say that one of the reasons why the Legislature has seen fit to grant
extensive powers of supervision
and control to the registrar is that
the members of pension funds often do not have the knowledge, skill
or resources to take adequate
steps to protect themselves.
Their right to do so is, of course, not taken away by the
Pension
Funds Act 24 of 1956
, but this does not detract from the conclusion
which, in my view, can fairly be drawn from the provisions of the
Pension Funds Act 24 of 1956
and the Financial Institutions
(Investment of Funds) Act 39 of 1984, namely that the registrar
fulfils an important function as
the guardian of the interests of
members of pension funds.”
[47]
[93]
The FSRA and the case law show the FSCA’s functions of
supervising and enforcing compliance with laws regulating financial

institutions include a duty to ensure that the FSCA, and particularly
the registrar, is acting lawfully.  That duty is clear
with
regard to the cancellations project.
[94]
The cancellations project was adopted as a policy applicable
to cancellations effected by the registrar under the FSRA.  If

the registrar did not exercise her powers under the FSRA lawfully,
she did not comply with it.  This would be a failure of
her
required supervision and control over pension funds under the FSRA.
[95]
There is another route to the same conclusion.  The laws
regulating financial institutions and the provision of financial
services
must include the Constitution and other public law governing
the lawfulness of administrative action.  That being so, the
FSCA must supervise and enforce the registrar’s compliance with
the Constitution and other public law relating to lawfulness
of
administrative action.
[96]
This suggests that the FSCA’s supervisory and
enforcement role compels it to investigate potential unlawfulness as
well as
ordinary compliance with laws regulating financial
institutions and the provision of financial services.  Since it
has a duty
to address unlawful action, it cannot simply let
suspicions of unlawfulness lie.  Its duty to set aside unlawful
action entails
a duty to investigate where the lawfulness of an
action is questionable.
[97]
Where a public functionary is alleged to have breached a
constitutional duty, the courts provide a forum in which the alleged
breach
can be challenged.  I turn then to how such a challenge
should be brought.
Should Ms Hunter
have brought a review under PAJA?
[98]
I agree with the first judgment that decisions made to cancel
“orphan funds” must be challenged by way of review under

PAJA.  However, the case brought before us was not a challenge
to any such decisions.
[99]
Ms Hunter argued that the FSCA failed to fulfil its
constitutional duty to investigate potential irregularities.
The relevant
question is whether that duty must be enforced by way of
PAJA review.  Ms Hunter’s challenge, and other challenges
of
the same type, could not be brought under PAJA.  Therefore,
legality review is the appropriate mechanism to challenge the FSCA’s

alleged failure to fulfil its duty to investigate.
[100]
In
Gijima
we held that the constitutional right to lawful
administrative action under section 33 of the Constitution is enjoyed
only by private
persons and that the bearer of obligations under the
section is the state.
[48]
This does not mean that an organ of state cannot apply for review of
its own decision, only that it cannot do so under PAJA.
Its
remedy lies in legality review.
[49]
In
Transnet Pension Fund
[50]
we reaffirmed that a separate claim may lie, based on the same
conduct, even though that conduct might also amount to administrative

action under PAJA.  The facts pleaded and arguments raised, were
on their face at least, not based on administrative justice,
but on
the asserted application of the
KZN
[51]
constitutional principle of unconscionable state conduct that is in
breach of reliance, accountability and rationality.
[52]
[101]
If
a responsible functionary whose
attention is drawn to a potential irregularity has a duty to launch a
proportionate investigation
into that potential irregularity, that
duty flows from constitutional and statutory principles of
accountability, transparency
and openness and not directly from an
individual’s constitutional right to lawful administrative
action.  Ms Hunter
seeks to compel the FSCA, an organ of state,
to fulfill that duty.  She relies on the FSCA’s own
obligation, independent
of PAJA, to fulfill that duty and to bring a
legality review to correct any unlawful conduct that comes to light.
PAJA does
not apply.
[102]
There is nothing new in the claim
that public functionaries are obliged to investigate potential
irregularities arising from their
own actions.  That principle
is stated generally and unequivocally in
Khumalo
.
[53]
[103]
Ordinarily,
functionaries will
investigate and where necessary approach the courts to set aside
irregularities by way of legality review.
But what happens when
a functionary refuses to investigate?  What is the appropriate
means to enforce the obligation?
[104]
Must any such enforcement be by way of PAJA?  One might
think that the failure to investigate is a decision for the purposes

of PAJA and it can be challenged on the usual grounds.  I would
demur.  PAJA is not an adequate means by which to enforce
the
duty to investigate set out in
Khumalo
.
[105]
PAJA review is not simply about whether there has been a
decision made by a public functionary.  To be reviewable
administrative
action, a decision must adversely affect the rights of
any person and have direct, external legal effect.  Even taking
into
account the comments of Nugent JA in
Grey’s Marine
,
[54]
a failure to investigate does not meet that criterion.  The
legally effective decisions are those that stand to be investigated

(in this case the cancellations).  In a case like this, PAJA
does not bite.
[106]
It follows that the failure of a public functionary to
investigate potential irregularities arising from its own actions is
not
PAJA-reviewable.  But it would be wholly inadequate if the
legal position ended there.  It cannot be that public
functionaries
are under an obligation to investigate potential
irregularities, but that there is no legal recourse against them when
they fail
to live up to that obligation.
[107]
Recourse must then lie in legality review.  Where an
individual is concerned that a public functionary has failed to
fulfil
its duty to investigate potential irregularities, that
individual may challenge the legality of the alleged failure in the
courts
outside the bounds of PAJA.
[108]
It remains to apply the legal
principles to the facts.
Application to the facts
[109]
There have been several investigations into 510 of the 4651
cancellation decisions made in the course of the cancellations
project.
At this point, there is no real dispute that the FSCA
has fulfilled its investigative duty with respect to those 510
cancellation
decisions.  However, Ms Hunter’s allegations
impugn the whole project.  Consequently, we must ask whether the
FSCA
has fulfilled that duty with respect to the 4000 or so
cancellations which have not been investigated.  It is critical
that
we focus on the adequacy of the investigations in relation to
those funds rather than the 510 about which there is no real dispute.
[110]
The main argument offered by the respondents as to the
sufficiency of the investigation was that an analysis of the sample
showed
that there was no need to investigate the other 4000 or so
cancellations.  In my view, that argument must fail.  Two
additional reasons motivate for further investigation of those
funds.  However, before I turn to those, I must address a
preliminary
point about the link between mistaken cancellations and
unlawfulness.
The link between error and unlawfulness
[111]
The investigations at issue sought
to find mistakenly cancelled funds rather than unlawfully cancelled
funds.  There is good
reason for that.  The O’Regan
report asked the FSCA to investigate whether the cancellations caused
material prejudice.
That was a pragmatic course since there
would be nothing to be gained from reversing unlawful cancellations
which caused no harm.
[112]
Moreover, mistaken cancellations are
the primary source of prejudice in the matter before us.  Mr
Mort noted that a mistaken
cancellation is likely to prejudice the
members of the fund unless it is reinstated.
[55]
So, as long as the administrators of a fund are
aware of a wrongful cancellation, they can take steps to prevent
prejudice to the
fund members.
[113]
The real danger is mistakenly
cancelled funds where the error has gone undetected.  For that
reason, the investigations focused
on mistaken cancellations rather
than unlawfulness.  In the analysis of both KPMG and Mr Mort,
the prevalence of mistaken
cancellations can be properly seen as
proxy for the prevalence of unlawfulness.
[114]
The mistaken cancellations can be
reversed by review.  If the mistakes can be reversed by the
courts on review, they must have
been unlawful.
[115]
But there is more.
[116]
The cancellations project is
problematic.  Three features of the project show that the
potential for irregular decision-making
abounds.  First,
unlawfulness within the process is admitted.  Second, there is
no doubt that a number of mistakes have
been made –
registrations have been cancelled where funds had not ceased to
exist.  Third, a number of questions have
been raised about the
adequacy of the process.  I expand on each of these features
below.
Unlawfulness within the cancellations project
[117]
It is
common ground that the
cancellations project was infected by some unlawfulness.  The
FSCA appointed “authorised representatives”
to assist
with determining whether funds had ceased to exist.  The FSCA
did not have the power to make those appointments;
they were
unlawful.  While the FSCA is correct that those unlawful
appointments do not necessarily render the decisions made
by the
registrar unlawful, it cannot be said that the FSCA’s unlawful
acts are harmless, wholly unimportant or should be
condoned by this
Court.  At the very least, the unlawful appointment indicates
that the FSCA had a lax approach to lawfulness
in the cancellations
project.
Mistakes in the cancellations project
[118]
It is common cause that those
investigations unearthed a number of mistaken cancellations –
decisions made to cancel a fund
when it had not actually ceased to
exist.  There was some debate about whether those false
positives constituted systemic
irregularities.  The question of
“systemic irregularities” is a red herring.
However, the sample of funds
investigated by KPMG and Mr Mort is
central to the debate about mistaken cancellations and it is
important to understand the role
of the sample in the case at hand.
[119]
A sample of cancellations was investigated
on the recommendation of the O’Regan report.
The
purpose of analysing a sample is to draw conclusions about the whole
population of cancellations from the results found in the
sample
analysed.  It is a time saving exercise.  If no mistakes
are found in a representative and sufficiently large
sample, then it
is reasonable to conclude that there are no (or very few) mistakes in
the population.  If mistakes are pervasive
in the sample, it is
likely that they are pervasive in the population.
[120]
Ideally, we would be in a position to say that a certain
proportion of the cancellations in the sample were mistaken,
therefore
it is likely that a similar proportion of all the
cancellations were mistaken.  Were that proportion zero, the
task of this
Court would be very easy – no investigation would
be necessary.
[56]
Unfortunately, we are in no such position.
[121]
Both KPMG and Mr Mort considered a sample of 510 cancelled
funds.  Of those funds, many were mistakenly cancelled.  It

is difficult to be certain about the precise number.
[122]
Counsel for Ms Hunter argued that 136 of the sample of 510
cancellations were mistaken.  He implored the Court to
generalise
from that number and work on the basis that more than 25%
of the unexamined cancellations – more than 1000 cancellations
– were made in error.  However, the numbers presented to
this Court do not bear scrutiny.  Even the lowest number

presented by counsel for Ms Hunter is not evidenced in the
affidavits; the 76 cancellations referred to in Mr Tshidi’s
affidavit
do not obviously form part of the sample.
[123]
This is what we know about mistakes in the cancellations
project:
(a) In the sample of 510, there had been 21 “reinstated funds”
at the time of the KPMG report.
(b) Mr Mort found further errors which were corrected.  We do
not know how many.
(c) Before Ms Hunter took office 76 cancellations were “reinstated”.
We do not know if any of those cancellations
formed part of
KPMG’s sample.
(d) The High Court, pursuant to an application by Liberty, set aside
23 cancellations.
[124]
In light of those facts can it really be said that the
investigation of 510 funds shows that no further investigation is
necessary?
I think not.  The possibility of mistakes in
the cancellations that have not yet been examined is obvious.
Those mistakes
are a proxy for unlawfulness.  And the duty to
investigate potential irregularities is clear.
[125]
The claim that there are very few mistakes does not assist the
respondents.  The sample suggests, at a minimum, that
approximately
4% of the unexamined funds had their registrations
cancelled by mistake.  That is well over 100 mistakes.
That many
potential irregularities cannot simply be ignored.
The number is not trivial and the effect of the mistakes is not
inconsequential.
Mr Mort himself implied that mistaken
cancellations are prejudicial to members of the affected funds unless
those mistakes are
rectified.  Moreover, the prejudiced members
are likely to be pensioners – some of the most vulnerable
people in our
society.
[126]
It is therefore necessary to investigate all the cancelled
funds.  The FSCA’s view that “there is no need to
investigate
the deregistered funds further at this point” is
untenable.
The adequacy of the cancellations process
[127]
The process by which cancellations
were made was questioned both by KPMG and in a note produced by Mr
Maharaj and Mr Prinsloo (the
Maharaj note).  KPMG took
particular issue with the evidence available to the registrar at the
time of cancellation.
The Maharaj note took issue with the
speed of the cancellations and whether the correct procedure was
followed.
[128]
Counsel for Ms Hunter described these as
“qualitative” reasons for the FSCA to investigate the
cancellations project.  We are not in a position to accept
(or
reject) the truth of those factual allegations since they are
disputed by the parties.  However, the fact that the allegations

have been made suggests a need to investigate further.  In
particular, the allegations made by the Maharaj note have not been

met.
[129]
Counsel for the FSCA suggested in oral argument that the
Maharaj note proceeds on a mistaken assumption.  He said that
the
timings of the cancellations
merely
indicate the dates and times that the cancellations were put through
on the system and not the time it took the registrar
to substantively
consider and approve the cancellations.
That
argument is unsubstantiated by any evidence in the record.
[130]
Two further points are worth noting.  First, Mr
Maharaj and Mr Prinsloo held important positions within the FSCA.
They
were well placed to understand the significance of the timing of
registrations and the processes that were meant to be followed
in the
cancellations.  Second, the Maharaj note addresses more than
merely timing.
It
notes that a number of cancellations were made before notices were
posted in the Government Gazette and points out that there
was a
workflow to be followed (presumably concerned with putting
cancellations through the system as well as deciding whether the

cancellations were warranted).  They conclude that the workflow
was probably not followed in every case.
[131]
The fact remains that credible allegations have been seriously
made by people who have significant knowledge of the cancellations

project.  Those allegations go to the correctness of
cancellations throughout the project, not merely to errors within the

sample.  That is a reason to investigate all of the funds for
mistaken cancellations.
Conclusion
[132]
The prevalence of mistakes, the
presence of unlawful behavior, and the questions raised about the
adequacy of the cancellation process,
taken together, show that the
FSCA had a duty to investigate the cancellations project.  They
go further than establishing
a general duty to investigate the
project; they show why the FSCA had a duty to investigate all the
decisions made in the cancellations
project.  The FSCA’s
argument that the investigation of the sample was a sufficient
investigation of the deficiencies
in the whole of the project is
without merit.
[133]
The FSCA must investigate all of the
cancelled funds with a view to determining which were mistakenly
cancelled.
[134]
The appeal must succeed to the
extent that further investigations are required.
[135]
The relief sought against the
Minister in respect of the third respondent’s conduct is truly
a review based on alleged unlawful
conduct.  It should have been
brought under PAJA.
Remedy
[136]
A supervisory order is clearly not
appropriate in this case.  The FSCA must be ordered to
investigate all the cancelled funds
in order to determine which were
mistakenly cancelled.  The mistaken cancellations must be
rectified in a lawful manner.
The process and outcome must be
made public.
Order
[137]
In the circumstances, I would have upheld the appeal and in
doing so, set aside and replaced the High Court order with one
compelling
the FSCA to investigate all the cancelled funds in order
to determine which were mistakenly cancelled and thereafter rectify
such
mistakes in a lawful manner and in a process that is made public
and transparent.
CACHALIA AJ:
[138]
I have had the pleasure of reading the first and second
judgments.  I gratefully adopt their exposition of the facts.
In
this judgment I discuss only those facts relevant to the
conclusion to which I have come.  The first judgment holds
first,
that there is no legal source for a duty on the part of the
FSCA to investigate Ms Hunter’s allegations regarding the
cancellations
project;
[57]
and second, that the cancellation of the funds constituted
administrative action in terms of PAJA, which required Ms Hunter to

have instituted a PAJA review of the cancellation decisions to
address her concerns rather than seeking relief in the form of a

mandamus.
[58]
The second judgment, on the other hand, finds that once a public
entity’s attention is drawn to a potential irregularity,
it has
a duty to investigate that potential irregularity.
[59]
The second judgment concludes that an individual may challenge the
legality of the failure of a public entity to fulfil that
duty
outside the bounds of PAJA, just as Ms Hunter has sought to do.
[60]
[139]
In my view it is unnecessary and inappropriate to decide the
application for leave to appeal on the grounds relied upon in the two

judgments.  Ms Hunter has, quite simply, not made out a case in
her founding affidavit for the relief she now seeks in this
Court.
I would accordingly dismiss her application for leave to appeal
against the judgment of the High Court because it
is not in the
interests of justice to grant leave to appeal in these circumstances.
[140]
Ms Hunter’s central hypothesis advanced in this Court
was that there were systemic irregularities in the way in which the
cancellations project was executed.  This, she said, led to the
likelihood of financial prejudice to interested parties, which
the
FSCA had a duty to investigate, but resisted doing so.  Ms
Hunter submits that this Court must now order what amounts
to an
unprecedented and far-reaching court-supervised investigation into
the cancellations project because the FSCA does not acknowledge
these
irregularities and has no commitment to remedying them.
[141]
In what follows I shall demonstrate that Ms Hunter’s
central hypothesis – the FSCA’s duty to investigate
systemic
irregularities in the cancellations project – does not
get out of the starting blocks; this case was not made out in her
founding affidavit or in argument before the High Court.  Instead
it is impermissibly made for the first time in the founding
affidavit
in the application for leave to appeal in this Court.  In fact
Ms Hunter’s case has mutated since it
was first
instituted.  Her counsel, Mr Budlender has, as I shall
demonstrate in due course, unconvincingly sought to
portray this
mutation as a mere “refinement of her case”.
The unlawfulness
case
[142]
The relief Ms Hunter sought in her original notice of motion,
when she instituted proceedings on 19 January 2016, was for the FSCA

to procure an investigation into the matters referred to in her NCN1
attached to the founding affidavit, by a suitably qualified

individual or organisation and report to her on its outcome.  The
ground relied upon to support this relief was her allegation
that the
“authorised representatives” and section 26(2) trustees
did not have the power to apply for the cancellation
of the “orphan
funds” or to provide the registrar with evidence for him to
exercise his power under section 27(1) to
cancel the registration of
the funds.  Put simply, her attack was aimed principally at the
lawfulness of the project, not
that there were other systemic
irregularities requiring an investigation.
[143]
The FSCA met the unlawfulness case convincingly by showing
that section 27(1) gives the registrar a broad power to cancel
the
registration of an “orphan fund” without any
application for its cancellation and regardless of the source of the

evidence that the fund has ceased to exist.  Section 27(1)(a)
provides that “[t]he registrar shall cancel the registration
of
a fund . . . on proof to his satisfaction that the fund has ceased to
exist”.  All that is required before a fund
is
deregistered is for the registrar to be subjectively satisfied that
the fund has ceased to exist and that his conclusion is
one that a
reasonable registrar of pension funds could reach.  Once this is
established a court will pay due respect to his
decision.
[144]
In her application for leave to appeal to this Court, Ms
Hunter for the first time contended that there are two other
requirements
for the cancellation of a registration of a fund.  The
first is that the registrar may only rely on evidence he has verified

independently.  The second is that he may only cancel the
registration of a fund if he is able to determine from information
in
the FSCA’s records what has happened to its assets and
liabilities.  But there is no justification for reading these

further requirements into section 27(1).  I did not understand
Ms Hunter to persist with the argument that the registrar had

unlawfully exercised his power to cancel the registration of the
funds.
Background facts
and litigation history
[145]
This brings me to Ms Hunter’s central hypothesis: the
FSCA’s duty to investigate the alleged irregularities in the
cancellations
project.  To understand how Ms Hunter got here, a
brief digression into the facts and the litigation history is
necessary.
Ms Hunter’s main relief in the High Court
was aimed at securing the disclosure of the O’Regan and KPMG
reports,
which the FSCA had withheld from her.
[146]
The O’Regan report arose from an FSCA resolution on 17
September 2014 to appoint Justice O’Regan to investigate
Ms Hunter’s
complaints.  After receiving submissions
from Ms Hunter, Mr Boyd and Mr Tshidi, Justice O’Regan gave her
report.  She
recorded, but did not express a view on the debate
between the parties about the lawfulness of the cancellations.  She
recognised,
with respect sensibly, that the important question was
not whether the registration of funds had been lawfully cancelled,
but whether
it is likely that anyone had suffered material financial
prejudice as a result of their cancellation, which was Ms Hunter’s

primary concern.  She thus recommended that the FSCA appoint a
firm of auditors to investigate this question based on a
statistically
significant sample of funds.  It bears mentioning
that no evidence of any improper, dishonest or corrupt conduct was
placed
before her.
[147]
The FSCA appointed KPMG to conduct this investigation on
18 December 2014.  KPMG did so and rendered a final
report
on 20 October 2015.  The exercise turned out to
be an expensive mistake.
[148]
KPMG misunderstood its mandate.  Justice O’Regan
intended the auditors to “design and implement a thorough
investigation”
to assess whether there is a “likelihood
of
material
financial prejudice” through the
cancellation of the registration of funds.  What was envisaged,
therefore, was a fact-finding
exercise.  Instead the report
assessed the “likeliness of
potential
prejudice”
which the auditors said, was “a lower burden of certainty than
. . . prima facie”.  The method
employed was to calculate
the statistical possibility of prejudice from the FSCA’s
records without having established all
the facts.  KPMG used a
sample of 510 cancelled funds for this purpose.  It found that
500 of these funds had insufficient
information to conclude that the
fund had ceased to exist.
[149]
KPMG did not investigate the issue that Justice O’Regan
had considered necessary: the likelihood of any material financial

prejudice caused by the cancellation of any fund.  It made no
factual findings.  The report it produced resolved nothing.

This notwithstanding, it is significant that the FSCA did not
simply abandon its quest to solve the problem but sought further

guidance from Justice O’Regan.  She advised the FSCA, on 1
December 2015, to approach senior counsel familiar with pension
law
to assist further.
[150]
The FSCA acted on her advice by engaging Mr Mort, an
experienced attorney and pension fund specialist.  Mr Andrew, a
pension
fund actuary, assisted him.  The FSCA asked them to
review the KPMG report.  They rendered an assessment report on

25 April 2016 in which they were highly critical of it.
[151]
The registrar appointed Mr Mort as an inspector in terms of
section 2(1) of the Inspection of Financial Institutions Act
[61]
to conduct the investigation into whether material financial
prejudice was caused by the cancellation of the funds.  In the

High Court the FSCA included two inspection reports by Mr Mort
in its answering papers to demonstrate that it had indeed
acted
on Ms Hunter’s concerns regarding the cancellations project and
to inform the Court that the investigation was ongoing.
[152]
Mr Mort’s First Inspection Report, dated 7 June 2016,
was produced six months after Ms Hunter had instituted the
present
proceedings.  Mr Mort had inspected nine of the
cancelled funds in the KPMG sample.  These represented 46% of
the value
of the total indicative financial prejudice (TIFP) as
determined by KPMG.  Mr Mort found that five of them had assets
when
they were cancelled and their registrations had to be
reinstated.  The report also states that, subject to minor
confirmations,
which were not expected to indicate any financial
prejudice, the TIFP indicated in the KPMG summary in respect of the
nine investigated
funds was found not to exist.
[153]
Ms Hunter filed her replying affidavit on 30 June 2016, a
month before her employment contract came to an end, on 31 July 2016.
She dismissed Mr Mort’s investigation as a “regrettably,
transparent” attempt by the FSCA to discredit what
she
considered were the credible findings in the KPMG report, implicitly
impugning his professional integrity.  She also expressed
the
view that as a single inspector, he would not be able to conduct a
proper investigation of the remaining 500 funds in the KPMG
sample
within the remaining period of her employment.  This was despite
the fact that in her original notice of motion Ms
Hunter had asked
for an “individual or organisation” to conduct an
investigation into the cancellations project.  Mr
Mort was
appointed with Mr Andrew to support him, which was even more than she
had asked for initially.
[154]
After delivering her replying affidavit, and six weeks before
the hearing, on 20 October 2016, she filed an amended
notice
of motion seeking, in addition to the relief in her original
notice of motion, further extensive and complex relief running into

five pages.  This included—
(a) the appointment of forensic investigators by the FSCA in
consultation with the Minister to investigate the merits of her two

complaints and more;
(b) that the investigation covers each of the 500 funds and
determines whether the cancellation of the registration of each fund

was effected “lawfully and properly” and if not whether
any fund or interested person suffered material financial prejudice;
(c) that the investigators provide written reports on, among other
things, whether the investigation should be extended to cover
any
other cancelled funds; and
(d) that the High Court supervise the process, make findings and
grant orders as the issues arise before it.
[155]
The High Court dismissed this application, but Ms Hunter
appears to persist with the substance of the relief claimed in this
Court.
[156]
Mr Mort filed his Second Inspection Report on 24 November
2016.  He found no indication that any section 26(2) trustee, or
authorised representative employed by an administrator, had acted in
a way that conferred an improper advantage or benefit on their

employer.  The report was handed to the Judge during the hearing
in the High Court.  He recorded that the report showed
that Mr
Mort had completed investigating 63% of the funds in the sample and
that his investigation was continuing.
[157]
The Judge observed, correctly I think, that the relief sought
in the original notice of motion was for an investigation into the

cancellations project.  This suggested that there was no
investigation under way.  But this is not so.  At that

stage Justice O’Regan and KPMG had completed their
investigations.  Mr  Mort’s investigation had not yet

begun; he was commissioned only four months after Ms Hunter had
instituted these proceedings. When the matter was heard and shortly

afterwards, when the Court delivered its judgment, on 14 December
2016, the investigation had not been completed.
[158]
The Judge understood the applicant’s case, again, in my
view correctly, as seeking to put an end to the alleged unlawful
conduct
of the FSCA and their employees in their execution of the
cancellations project and to compel them, and the Minister, to comply

with their constitutional obligation to act “lawfully”
and to fulfil their duties in the applicable legislation and
FSCA
policy documents being—
(a) the FSCA’s Compliance Policy and Compliance Charter;
(b) the policies and procedures comprising the FSCA’s Fraud and
Corruption Strategy;
(c) the Public Finance Management Act read with Treasury Regulation
33; and
(d) the Protected Disclosures Act.
[62]
[159]
But faced with a comprehensive refutation of each of her
pleaded causes of action, Ms Hunter abandoned them.  During the
hearing
she contended that she no longer asked the Court to find as a
fact that the FSCA or its employees had breached any of these laws
or
policies but only to establish through an investigation whether this
was so.  The High Court was therefore right to observe
that
Ms Hunter “[had] failed to set out with the required
measure of particularity, facts and conclusions of law to
rely on any
of the statutory provisions stated in her affidavits and those in
argument” to justify an order premised on a
general obligation
to investigate her complaint.
[63]
[160]
The Judge also dealt with a further argument offered in reply
on Ms Hunter’s behalf, which was that once the FSCA had
accepted
the O’Regan report, it was obliged to appoint, not Mr
Mort, but forensic investigators to conduct an investigation as
contemplated
in her amended notice of motion.  He rejected the
submission – again, correctly – as the FSCA has not been
called
upon to answer this case either.
[161]
Following the High Court judgment, Mr Mort continued his
investigation.  On 21 December 2016 he produced a
supplement
to his Second Inspection Report, which addressed some
outstanding information in that report.  He concluded that no
member,
beneficiary, or creditor had apparently been exposed to any
material financial prejudice.
[162]
Mr Mort produced his Third Inspection Report on the same date.
This report was not included in the papers.  However, in

the FSCA’s answering papers in this Court, Mr Mort
acknowledged, with reference to the report, that while there were
areas
of concern, it was also apparent that there was an ongoing
effort by administrators of cancelled funds to trace the
beneficiaries
of unclaimed benefits.
[163]
Mr Mort says that his investigation of the sample of audited
funds showed that, in the main, those certifications were correctly

given.  The number of funds that should not have been
deregistered constituted a small percentage of the total
deregistered.
This occurred because of errors by administrators
incorrectly certifying that there were no assets and liabilities.
When
detected, the registrar was notified, steps were taken to
reinstate the funds concerned and they were thereafter monitored.
However
in none of the cases was there any evidence of material
financial prejudice.  His conclusion was that there was no need
to
investigate the remaining deregistered funds any further.  He
added that this decision – whether or not to continue the

investigation – was not his, but the registrar’s to make.
We were not told whether the registrar has made any
decision in
this regard, a point to which I shall revert.
[164]
It must be emphasised that evidence regarding developments
after the High Court judgment is inadmissible for the purposes
of
determining the merits of the new dispute, in other words, whether
there was a duty to investigate the cancellations project.
The
reports were given to the registrar and placed before this Court to
update it on the investigation and to assist it in
the assessment of
the remedies Ms Hunter now seeks, in particular, whether the FSCA
should be ordered to terminate Mr Mort’s
investigation and
replace it with another.  They may be admitted only for this
limited purpose.
In this Court
[165]
In her founding affidavit in this Court, Ms Hunter goes much
further than merely dismissing Mr Mort’s investigation and
implicitly
impugning his professional integrity, as she did in her
replying affidavit in the High Court.  She now accuses him
explicitly
of having conspired with the FSCA to “bury”
her allegations and KPMG’s findings of likely prejudice, and to
obscure
the FSCA’s failure to conduct a proper investigation.
Mr Mort is also accused of bias in favour of the FSCA.  These

allegations are groundless and scandalous.  But apart from this,
Ms Hunter made no case to set aside the FSCA’s decision
to
appoint Mr Mort and Mr Andrew on the ground that it was made for an
ulterior purpose.  During the hearing in this Court,
counsel
wisely did not persist with this line.
[166]
Ms Hunter also attacks Mr Mort’s investigation on
another ground: that it did not meet “the requirements required
by
law, recommended by Justice O’Regan and accepted by the
board of the FSCA”.  But again, this is incorrect.
Section 27(1)
only requires the registrar to have “proof
to his satisfaction that the fund had ceased to exist” before
he cancels
the registration.  There is no further legal
requirement that he is obliged to investigate material financial
prejudice.  The
FSCA sensibly accepted Justice O’Regan’s
recommendation to investigate this issue.  Whether it was
legally obliged
to do so need not be decided.  But, having
accepted the recommendation, how to implement it was solely within
its power.  It
appointed Mr Mort and Mr Andrew to conduct the
investigation.  That decision stands unless and until set aside
by a court.
[167]
The case made in this Court for the first time, and on which
the entire appeal regarding the cancellations project rests, is that

the FSCA had a duty to investigate systemic irregularities in the
cancellations project.  The foundation for Ms Hunter’s

case, as was pointed out earlier, was for the FSCA to procure an
investigation into the lawfulness of the cancellations project,
not
into any other systemic irregularities in it.
[168]
The facts relied upon to support this new and different case
are the following.  A total of 6757 funds were cancelled over a

period of approximately ten years.  Of these 4515 were the
“orphan funds” with which we are concerned.  KPMG

investigated a sample of 510 on Justice O’Regan’s
recommendation.  Mr Mort used the same sample for his
investigation.
[169]
To support this case, counsel for Ms Hunter submitted that 139
of the cancelled funds in the sample had to be reinstated.  This

equates to 27% of the sample.  The 139 was made up as follows—
(a) 76 which were reversed by Mr Boyd before Ms Hunter’s
appointment;
(b) four which were set aside by the FSCA Appeal Board;
(c) a further 29 which are evident from an annexure to Ms Hunter’s
founding affidavit;
(d) 23 other funds managed by Liberty, mentioned in Mr Mort’s
First Inspection Report; and
(e) the remaining seven that were referred to in Mr Mort’s
Second Inspection Report.
[170]
It is contended that 139 reinstated funds represents a high
percentage of erroneously cancelled funds in the sample and indicates

that these were not isolated mistakes but confirmation of a systemic
flaw.  But she seems to have cobbled together these figures
by
scouring through affidavits (other than her own founding affidavit),
supporting annexures and Mr Mort’s first two inspection
reports
to make this case now.  And then impermissibly seeks to draw the
inference of a systemic flaw in argument before this
Court, when this
case was not made out in the first instance.  However, as
observed in the second judgment, the figures that
Ms Hunter relies
upon are not all supported by the record.  The 76 funds
reinstated prior to Ms Hunter’s employment
at the FSCA do not
appear to be part of the sample of the 510 funds investigated by
KPMG, and subsequently Mr Mort.  The sample
only included 21
previously reinstated funds, and it is also not clear whether these
21 previously reinstated funds are included
in the 76 referred to by
Ms Hunter.  If they were, and expressed as a percentage, they
would constitute only 4% of the reinstated
funds, which is hardly a
basis to ask the Court to order a full scale supervised investigation
into all the remaining funds.
[171]
It is trite that an applicant must make out her case in her
founding affidavit.  This means she must spell out the facts and

the issues in dispute.  This is for the benefit of the Court,
but also primarily, for the respondent so that it knows the
case it
must meet and the evidence required to be adduced in its
affidavits.
[64]
The issue in this Court became the duty of the registrar to institute
an investigation, other than Mr Mort’s,
based mainly on
the quantitative analysis of the number of erroneously cancelled
funds in the sample.  But this was not identified
in the papers
as an issue in dispute, nor was it supported by any evidence and
neither was it the relief asked for.  In fact,
the original
relief – that an investigation be ordered – remains the
primary relief asked for.
[172]
Furthermore it is not proper for an applicant in motion
proceedings to make its case on documents annexed to the papers and
to ask
a court to draw inferences or arrive at conclusions when the
relevant evidence from those documents is not properly canvassed in

the affidavits.  The reason is manifest: the other party may
well be prejudiced because evidence may have been available to
refute
the new case on the facts.  In
National Director of Public
Prosecutions v Zuma
, the Supreme Court of Appeal held that “[a]
party cannot be expected to trawl through documents and speculate on
the possible
relevance of some facts contained in them”.
[65]
This is precisely the FSCA’s complaint, and what Ms Hunter
expects this Court to do.  As Mr Trengove submitted
on
behalf of the FSCA, if this was indeed Ms Hunter’s case, the
FSCA would have addressed it in their affidavits.  The
prejudice
to the FSCA is evident.  It is no wonder that the High Court
observed that “the applicant had failed to set
out with
required particularity, facts and conclusions of law . . . in her
affidavits”
[66]
to sustain her cause of action.
[173]
The second judgment recognises that the record does not
support the percentage of erroneous cancellations presented by
Ms Hunter.
It nonetheless holds that, based on the
following facts gleaned from various parts of the record, an
investigation is warranted—
(a) in the sample of 510, there had been 21 “reinstated funds”
at the time of the KPMG report;
(b) Mr Mort found further errors which were corrected, but the number
does not appear in the record;
(c) 76 cancellations were “reversed” before Ms Hunter
took office; and
(d) 23 cancellations were set aside by the High Court pursuant to an
application by Liberty.  This emerged from a further
application
to admit this evidence after the application was argued in this
Court.
[174]
These then are the “facts” upon which the second
judgment bases its conclusion that the possibility of mistakes in the

cancellations that have not yet been examined is “obvious”
and that those mistakes are “a proxy for unlawfulness”.

It therefore holds that the potential irregularities in the
cancellations project as a whole cannot be ignored, and it is
therefore
necessary to investigate all of the cancelled funds.
[175]
The short answer to the second judgment is that neither the
factual nor legal basis for these conclusions was properly ventilated

in Ms Hunter’s papers before the High Court.  The FSCA was
simply not called upon to deal with the facts or respond
to the legal
conclusions it draws.  It is grossly unfair and prejudicial to
the FSCA for this Court to determine an entirely
new and different
case not made out in the High Court – not even obliquely –
and to do so sitting simultaneously as
a court of first instance and
a final court of appeal.
[176]
Furthermore, even if there were obvious mistakes in the
cancellations project it does not follow that this warrants a broader
investigation
into the entire cancellations project.  The bulk
of the mistakes – 72 of them – were corrected before Ms
Hunter’s
appointment, which suggests that the FSCA has systems
in place to detect and correct errors.  This is also apparent
from the
21 reinstated funds referred to in the KPMG report, there
being no suggestion that the reinstatements were as a result of this
report.  The same is true of the seven reinstatements mentioned
by Mr Mort.  It is unclear on what basis the second judgment
has
regard to the 23 cancellations that were set aside following another
High Court application instituted by Liberty, but this
is immaterial.
[177]
It must also be emphasised that when Ms Hunter asked for an
investigation into the cancellations project in her founding
affidavit,
she had not seen the O’Regan and KPMG reports.  Nor
was she aware that the FSCA had acted on Justice O’Regan’s

recommendation to appoint a pensions expert to review the KPMG
report.  The FSCA had in fact, acceded exactly to what Justice

O’Regan had recommended, by appointing Mr Mort.  Furthermore,
his investigation had not been completed when the High
Court
adjudicated the matter.
[178]
Mr Mort, who was assisted by Mr Andrew to take the
investigation further, has now, after the dispute was decided in the
High Court,
completed his investigation into the sample of 510 funds.
He concluded that there was no likelihood of material financial

prejudice to interested parties and that there are ongoing efforts by
administrators of cancelled funds to trace beneficiaries
of unclaimed
benefits.  He therefore believes that there is no need for a
further investigation.  Ms Hunter simply ignores
this and the
second judgment overlooks it.  I pause to mention that in her
proposed amended notice of motion in the High Court
she had asked for
no more than an initial investigation to cover the 510 funds in the
sample, not all the cancelled funds, which
she now seeks in this
Court.  It is now up to the registrar to decide on an
appropriate course of action.  If any party
has legitimate
concerns about the decision he ultimately makes in this regard, the
correct approach will be for that party to institute
administrative
review proceedings against that decision.  Whether this would
require an applicant to institute review proceedings,
either under
PAJA or by way of another legality challenge, is neither necessary,
nor appropriate to decide.  It was also not
an issue between the
parties, and the Court has not had the benefit of proper legal
argument on what is an important administrative
law dispute.
[67]
Governance
complaint
[179]
Both the first and second judgments dismiss Ms Hunter’s
governance complaint against the FSCA and the Minister.  I agree

with their conclusions.  I would refuse Ms Hunter application
for leave to appeal this part of the High Court’s order
as
well.  It is therefore unnecessary to consider Ms Hunter’s
second complaint any further.
Conclusion
[180]
To sum up: Ms Hunter commenced her litigation seeking to
procure an investigation into the lawfulness of the cancellations
project.
The grounds relied upon to support this relief was her
allegation that the “authorised representatives” and
section
26(2) trustees did not have the power to apply for
cancellation of the “orphan funds” or to provide the
registrar with
evidence for him to exercise his power under section
27(1) to cancel the registration of the funds.  Her complaint
was therefore
aimed at the lawfulness of the project, not that there
were systemic irregularities requiring an investigation.  The
FSCA
met the unlawfulness case squarely by showing that section 27(1)
allows the registrar to cancel the registration of an “orphan

fund” without any application for its cancellation and
regardless of the source of the evidence that the fund has ceased
to
exist.  But it went further and instituted an investigation by
Mr Mort and Mr Andrew into the likelihood of material financial

prejudice following the O’Regan report.
[181]
Ms Hunter’s case has now changed fundamentally in an
attempt to establish a duty to investigate potential unlawfulness of
the cancellations project based on a quantitative analysis of a
number of reversed cancellations, and what she believes was an
inadequate investigation by Mr Mort.  Aside from the fact that
some of the facts she relied upon in this Court are questionable
or
at least unclear, this was not an issue in her founding affidavit in
the High Court (this could not have been the case, because
Mr Mort’s
investigation had not even begun).  The respondents were
therefore not called upon to answer this case.  It
is grossly
unfair to expect them to do so for the first time in this Court.
Costs
[182]
This brings me to the question of costs.  I accept that
Ms Hunter’s primary purpose in instituting these proceedings
was to compel the FSCA and the Minister to act lawfully in compliance
with their constitutional and statutory duties.  She
sought to
do so in the public interest.  The
Biowatch
principle
therefore applies.
[68]
But she also made unsubstantiated allegations and unjustifiably
impugned the integrity of various officials in the course
of her
employment-related complaints.  Ms Hunter’s groundless
attack against Mr Mort, which was not pursued in this
Court, would
ordinarily have constituted grounds for an adverse costs order
against her.
[183]
However, the FSCA has abandoned the costs orders in its favour
in both the High Court and the Supreme Court of Appeal, and does

not ask for any costs against Ms Hunter in this Court.  It
has also indemnified Mr Tshidi and Mr Boyd in regard
to any
costs they have incurred to answer the allegations that were made
against them.  Ms Hunter’s case against the
Minister was
misconceived from the start, but was ultimately founded on the
alleged failure of the FSCA to fulfil its duties.  In
the
circumstances, I accept that she should not be made to pay for the
costs of any of the respondents.  I also agree that
there is no
basis at all for the amicus curiae to ask for a costs order in its
favour.
[184]
In the result I would dismiss the application.  Save as
aforesaid, I concur in paragraphs 3-11 of the order of the first
judgment.
For the Applicant: G
M Budlender SC, F Ismail and A Milovanovic instructed by Fasken
Martineau Attorneys.
For the First and
Second Respondents: W Trengove SC and H Rajah instructed by Norton
Rose Fulbright South Africa Inc.
For the Third and
Fourth Respondents: M C Maritz SC and T Manchu instructed by Rooth
and Wessels Inc.
For the Fifth
Respondent: J J Gauntlett SC QC and F B Pelser instructed by the
State Attorney, Johannesburg.
For the First Amicus
Curiae: L Morison SC, J Bhima and T Scott instructed by Lawyers for
Human Rights.
For the Second
Amicus Curiae: B Winks instructed by Biccari Bollo Mariano Inc.
[1]
Section 27(1) provides that:
“
The Registrar shall cancel the
registration of a fund—–
on proof to his satisfaction that the fund has ceased to exist.”
[2]
24 of 1956.
[3]
See [36].
[4]
Section 300(3) of the Financial Sector Regulation Act 9 of 2017
(FSRA), which came into effect on 1 April 2018, provides:
“The Financial Sector Conduct Authority must be substituted as
a party in any pending proceedings, whether in a court,
tribunal or
before an arbitrator or any other person or body, that have been
commenced but not finally determined immediately
before the date on
which this section comes into effect, for the Financial Services
Board, the Directorate of Market Abuse, where
applicable, or a
registrar in terms of a financial sector law other than Banks Act.”
[5]
Section 26(2) of the PFA provides:
“
Where a fund has no properly constituted
board contemplated in section 7A and has failed to constitute a
board after 90 days written
notice by the registrar, or where a fund
cannot constitute a board properly or where a board fails to comply
with any requirements
prescribed by the registrar in terms of
section 7A(3), the registrar may, notwithstanding the rules of the
fund, at the cost
of the fund—
(a) appoint so many persons as may be appropriate to the board of
the fund or appoint so many persons as may be necessary to
make up
the full complement or quorum of the board; and
(b) assign to such board such specific duties as the registrar deems
expedient.”
[6]
Regulation 33 of the Treasury Regulations provides:
“
33.1 Investigation of alleged financial
misconduct [Sections 85(1)(b), (c) and (d) of the
Public Finance
Management Act 1 of 1999
]
33.1.1 If an employee is alleged to have committed
financial misconduct, the accounting authority of the public entity
must ensure
that an investigation is conducted into the matter and
if confirmed, must ensure that a disciplinary hearing is held in
accordance
with the relevant prescripts.
33.1.2 The accounting authority must ensure that the
investigation is instituted within 30 days from the date of
discovery of
the alleged financial misconduct.
33.1.3 If an accounting authority or any of its members
is alleged to have committed financial misconduct, the relevant
executive
authority must initiate an investigation into the matter
and if the allegations are confirmed, must ensure that appropriate
disciplinary
proceedings are initiated immediately.
33.1.4 The relevant treasury may, after consultation
with the executive authority—
(a) direct that a person other than an employee of the
public entity conducts the investigation;
(b) issue any reasonable requirement regarding the way
in which the investigation should be performed.”
[7]
Ms Hunter’s NCN 1 was lodged in July 2014.
[8]
This was finalised in November 2014.
[9]
Ms Hunter’s NCN 2 was lodged in June 2015.
[10]
Biowatch Trust v Registrar, Genetic Resources
[2009]
ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) (
Biowatch
).
[11]
1 of 1999.
[12]
AllPay Consolidated Investment Holdings (Pty)
Ltd v Chief Executive Officer, South African Social Security Agency
[2013] ZACC 42
;
2014 (1) SA 604
(CC);
2014 (1) BCLR 1
(CC) (
AllPay
)
at paras 22–4.
[13]
International Organisation of Pension Supervisors (IOPS) Principles
of Private Pension Supervision (revised in 2010), IOPS Guidelines

for Supervisory Intervention, Enforcement and Sanctions (November
2009), and IOPS Good Practices for Governance of Pension Supervisory

Authorities (November 2013).
[14]
In
Mazibuko v City
of Johannesburg
[2009] ZACC 28
;
2010
(4) SA 1
(CC);
2010 (3) BCLR 239
(CC) at
paras 39-41 this Court held that new evidence is admissible on
appeal where it “might be of assistance in determining
the
appropriate relief to be granted”.
[15]
3 of 2000.
[16]
Pharmaceutical Manufacturers of South Africa: In re Ex parte
President of Republic of South Africa
[2000] ZACC 1
;
2000 (2) SA
674
(CC);
2000 (3) BCLR 241
(CC) (
Pharmaceutical Manufacturers
)
at para 45.
[17]
Section 33 (1) of the Constitution provides:
“Everyone has the right to administrative action that is
lawful, reasonable and procedurally fair.”
[18]
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
and Tourism
[2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR
687 (CC).
[19]
Masetlha v President of Republic of South Africa
[2007] ZACC
20; 2008 (1) SA 566 (CC); 2008 (1) BCLR 1 (CC).
[20]
Johannesburg Consolidated Investment v Johannesburg Town Council
1903 TS 111
at 116 and
Nel N.O. v The Master
[2004] ZASCA 26
;
2005 (1) SA 276
(SCA) at paras 22-4.
[21]
Pharmaceutical Manufacturers
above n 16.
[22]
Khumalo v MEC for Education KwaZulu-Natal
[2013] ZACC 49
;
2014 (5) SA 579
(CC);
2014 (3) BCLR 333
(CC) (
Khumalo
); and
MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd
[2014] ZACC 6
;
2014 (3) SA 481
(CC);
2014 (5) BCLR 574
(CC) (
Kirland
Investments
).
[23]
State Information Technology Agency SOC Limited v Gijima Holdings
(Pty) Limited
[2017] ZACC 40
;
2018 (2) SA 23
(CC);
2018 (2) BCLR
240
(CC) (
Gijima
).
[24]
Id at para 31.
[25]
See
N M Scrap (Pty) Ltd v Transnet Ltd
(2013) JDR 0858 (GSJ)
at paras 15-6.
[26]
Biowatch
above n
10.
[27]
The reports are explained in [14] to [18].  In short, they were
all aimed at investigating the extent to which cancellations
made
during the course of the cancellations project were mistaken or
irregular. On the recommendation of Justice O’Regan,
both KPMG
and Mr Mort considered only a sample of the funds which had their
registrations cancelled.
[28]
First Inspection Report at para 43 and KPMG report dated 20 October
2015 at para 3.3.
[29]
See for example
Mokone v Tassos Properties CC
[2017] ZACC 25
;
2017 (5) SA 456
(CC);
2017 (10) BCLR 1261
(CC) at para 61 on the
interpretation of an Act and the appropriateness to avoid
formalistic and technical grounds when the subject
matter is “about
averting abuse and injustice”.  Further see
Nabolisa v
S
[2013] ZACC 17
;
2013 (2) SACR 221
(CC);
2013 (8) BCLR 964
(CC)
para 33 for notification;
KwaZulu-Natal Joint Liaison Committee v
MEC Department of Education, KwaZulu-Natal
[2013] ZACC 10
;
2013
(4) SA 262
(CC);
2013 (6) BCLR 615
(CC) (
KZN
) at para 28
which appears to be accepted by the majority and then explained in
the concurring judgment of Froneman J;
Centre for Child Law v
Minister for Justice and Constitutional Development
[2009] ZACC
18
;
2009 (6) SA 632
(CC);
2009 (11) BCLR 1105
(CC) on standing;
AD
v DW (Centre for Child Law as Amicus Curiae; Department for Social
Development as Intervening Party)
[2007] ZACC 27
;
2008 (3) SA
183
(CC);
2008 (4) BCLR 359
(CC) at para 30 where the best interests
of a child principle is held to be more important than a formalistic
approach to procedure.
[30]
Swissborough Diamond Mines (Pty) Ltd v Government of the Republic
of South Africa
1999 (2) SA 279
(T) (
Swissborough
) at
323G.
[31]
See [157].
[32]
Mazibuko
above n 14 at para 41.
[33]
See
Venmop 275 (Pty) Ltd v Cleverlad Projects (Pty) Ltd
2016
(1) SA 78
(GJ) at 88-9 for a criticism of the practice of including
legal submissions in affidavits.
[34]
Khumalo
above n 22.
[35]
Id at para 35.
[36]
First judgment [40].
[37]
Schedule 3 of the PFMA lists the FSCA as a “Public Entity”.
The same schedule also lists the Competition Commission
as a public
entity. All public entities or functionaries, whether listed in
particular pieces of legislation, must comply with
the
constitutional standards of accountability, responsiveness and
openness.
[38]
Khumalo
above n 22 at para 29.  The importance of these
values has been emphasised in many different spheres such as—
procurement:
AllPay
above n 12 and
Minister of Transport
N.O. v Prodiba
(Pty) Ltd
[2015] ZASCA 38
; 2015 JDR 1127
(SCA); parliamentary procedures:
Economic Freedom Fighters v
Speaker of the National Assembly
[2017] ZACC 47
;
2018 (2) SA 571
(CC);
2018 (3) BCLR 259
(CC) (
EFF 2
); effective
investigations:
Glenister v President of the Republic of South
Africa
[2011] ZACC 6
;
2011 (3) SA 347
(CC);
2011 (7) BCLR 651
(CC); and the effect of corruption and maladministration on the
vulnerable and marginalised:
South African Association of
Personal Injury Lawyers v Heath
[2000] ZACC 22
;
2001 (1) SA 883
(CC);
2001 (1) BCLR 77
(CC) (
Heath
).
[39]
Economic Freedom Fighters v Speaker, National Assembly
[2016]
ZACC 11
;
2016 (3) SA 580
(CC);
2016 (5) BCLR 618
(CC) (
EFF 1
).
[40]
Id at para 1.
[41]
Nyathi v MEC for Department of Health, Gauteng
[2008] ZACC 8;
2008 (5) SA 94 (CC); 2008 (9) BCLR 865 (CC).
[42]
EFF 1
above n 39 at para 80 citing
Nyathi
.  See
also
Glenister
above n 38.  There is also an important
passage in
Rail Commuters Action Group v Transnet Ltd t/a
Metrorail
[2004] ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR
301(CC)
at paras 73-8.  See further
AAA Investments (Pty)
Ltd v Micro Finance Regulatory Council
[2006] ZACC 9
;
2007 (1)
SA 343
(CC);
2006 (11) BCLR 1255
(CC) at para 89.  See further
AllPay
above n 12 at para 64 and
Black
Sash Trust v Minister of Social Development (Freedom Under Law NPC
Intervening
)
[2017] ZACC 8
;
2017
(3)
SA 335
(CC);
2017
(5) BCLR 543
(CC)
at para 14.
[43]
Heath
above n 38 at para 4.
[44]
Pepcor Retirement Fund v Financial Services Board
[2003]
ZASCA 56
;
2003 (6) SA 38
(SCA) (
Pepcor
).
[45]
Id at paras 14 and 24.
[46]
Financial Services Board v De Wet N.O.
2002 (3) SA 525 (C).
[47]
Id at paras 175-6.
[48]
Gijima
at para 29.
[49]
Id at paras 38-40.
[50]
Pretorius v Transnet Pension Fund
[2018] ZACC 10
; 2018 39 ILJ
1937 (CC);
2018 (7) BLLR 663
(CC) (
Transnet Pension Fund
).
[51]
KZN
above n 29.
[52]
Transnet Pension Fund
above n 50 at para 39.
[53]
I return to this point below.
[54]
Grey’s Marine
Hout Bay (Pty) Ltd v Minister of
Public
Works
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA)
(
Grey’s Marine
).
[55]
Mr Mort says— “[t]he reinstatement of a fund does not
indicate a likelihood of material financial prejudice; rather,
that
had the funds not been reinstated, there would have been a
likelihood of material financial prejudice”.
[56]
I note that if the sample was flawed and told us nothing at all
about the unexamined funds, then there would be all the more
reason
to investigate those funds; the only way to find out if cancellation
errors are present is to scrutinise the funds or
a sample thereof.
[57]
See [38] to [39].
[58]
See [48] to [49].
[59]
See [62].
[60]
See [107].
[61]
80 of 1998.
[62]
26 of 2000.
[63]
Hunter v Financial Services Board
(2017) JDR 0011 (GP) (High
Court judgment) at para 27.
[64]
Swissborough
above n 30 at 323G.
[65]
National Director of Public Prosecutions v Zuma
[2009] ZASCA
1
;
2009 (2) SA 277
(SCA) at para 47.
[66]
High Court judgment at para 27.
[67]
Cape Town City v Aurecon
[2017] ZACC 5
;
2017 (4) SA 223
(CC);
2017 (6) BCLR 730
(CC) at paras 34-5;
Albutt v Centre for the
Study of Violence and Reconciliation
[2010] ZACC 4
;
2010 (3) SA
293
(CC);
2010 (5) BCLR 391
(CC) at para 82.
[68]
Biowatch
above n 10 .