Mostert and Others v Nash and Another (604/2017) [2018] ZASCA 62; [2018] 3 All SA 1 (SCA); 2018 (5) SA 409 (SCA) (21 May 2018)

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[2018] ZASCA 62
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Mostert and Others v Nash and Another (604/2017) [2018] ZASCA 62; [2018] 3 All SA 1 (SCA); 2018 (5) SA 409 (SCA) (21 May 2018)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 604/2017
In the matter between:
ANTONY LOUIS
MOSTERT

FIRST APPELLANT
ANTONY LOUIS MOSTERT N O

SECOND

APPELLANT
THE SABLE INDUSTRIES
PENSION
FUND

THIRD APPELLANT
A L MOSTERT & CO
INCORPORATED   FOURTH APPELLANT
Case No:
597/2017
THE EXECUTIVE OFFICER OF
THE
FINANCIAL SERVICES
BOARD

FIFTH APPELLANT
THE REGISTRAR OF PENSION
FUNDS

SIXTH APPELLANT
and
SIMON JOHN
NASH

FIRST RESPONDENT
MIDMACOR INDUSTRIES
LIMITED                                               SECOND

RESPONDENT
Neutral citation:
Mostert and Others v Nash and
Another
(604/2017 and 597/2017)
[2018]
ZASCA 62
(21 May 2018)
Coram:
PONNAN, WALLIS, WILLIS and SWAIN JJA and PILLAY
AJA
Heard
:
3 May 2018
Delivered
:
21 May 2018
Summary:
Pension fund – curatorship in
terms of s 5(2) of
Financial Institutions (Protection of Funds)
Act 28 of 2001
– trustee’s remuneration – court
order that it be agreed with Executive Office of the Financial
Services Board
in accordance with the norms of attorneys’
profession – whether fee as a percentage of amounts recovered
on behalf
of fund in accordance with those norms – whether
contrary to public policy or an infringement of
Contingency Fees Act
66 of 1997
.
Whether conclusion of
fee agreement administrative action in terms of PAJA – whether
application to set aside fee agreement
a review in terms of principle
of legality – applicability of delay rule –
locus
standi
of applicants – abuse of
process and doctrine of unclean hands.
ORDER
On appeal from:
Gauteng Division of the High Court,
Pretoria (Tuchten J sitting as court of first instance):
1
The appeal against paragraphs 1, 2, 3, 6
and 7 of the order of the high court is dismissed.
2
The appeal against paragraphs 4 and 5 of
the order of the high court succeeds and those paragraphs are set
aside.
3
Each party is to pay his or its own costs
of the appeal.
JUDGMENT
Wallis JA (Ponnan
and Swain JJA and Pillay AJA concurring)
[1]
On 20 April 2006 and at the instance of the
fifth appellant, the Executive Officer of the Financial Services
Board,
[1]
the Sable Industries Pension Fund (Sable Fund), the third appellant,
was placed under provisional curatorship in terms of the provisions

of s 5(2) of the Financial Institutions (Protection of Funds) Act 28
of 2001 (the FI Act). The court order appointed the second
appellant,
Mr A L Mostert, as the provisional curator. Mr Mostert, in his
personal capacity is the first appellant. He is an attorney

practising as the eponymous partner of the fourth appellant. The
present dispute relates to his remuneration as curator. On 6 June

2006 the provisional order of curatorship was made final and Mr
Mostert’s appointment as curator was confirmed.
[2]
Paragraph 9 of the order appointing Mr
Mostert as provisional curator of the Sable Fund read:
‘
The
curator shall be entitled to periodical remuneration in accordance
with the norms of the attorneys’ profession, as agreed
with the
applicant [the Executive Officer of the FSB], such remuneration to be
paid from the assets owned administered or held
by or on behalf of
the Fund, on a preferential basis, after consultation with the
applicant.’
The agreement Mr
Mostert concluded with the FSB provided for him to be paid
remuneration on the basis of a percentage of the amounts
recovered on
behalf of the Sable Fund.
[3]
The first respondent, Mr Simon Nash, and a
company controlled by him, Midmacor Industries Ltd (Midmacor), whose
interest in the
matter will emerge later in this judgment, challenged
the lawfulness of this agreement,
inter
alia
, on the basis that the agreement
was not in accordance with the norms of the attorneys’
profession. Their challenge succeeded
before Tuchten J in the Gauteng
Division of the High Court, Pretoria. This appeal is with his leave.
Background
[4]
Defined benefit pension funds, such as the
Sable Fund, provide for members to make regular contributions in
fixed amounts, usually
a percentage of the employee’s monthly
remuneration. Their employer is required to contribute such amounts
as the fund’s
actuary determines is needed to provide the
benefits that the fund’s rules promise to members.  If
investment performance
is better than predicted by the actuary the
result may be that the assets of the fund are greater than the
actuary determines is
necessary to provide those benefits. Under the
conventional rules of such funds this surplus enables the employer to
take a contribution
holiday, that is, make no contributions at all to
the fund.  This will deplete the surplus but may not extinguish
it entirely.
[5]
In the early 1990s a number of defined
benefit funds had significant actuarial surpluses and there was a
debate regarding the rights
to such surplus. From the side of fund
members and pensioners the attitude adopted was that any surplus not
needed to provide for
future benefits should be used to enhance the
benefits of members and pensioners. From the side of employers,
generally with the
support of fund administrators, the approach
adopted was that any surplus had accrued as a result of past
excessive contributions
by employers and in that sense ‘belonged’
to the employer. Neither view was in law correct. The true position
was that
all assets belonged to the fund and could only be disposed
of in accordance with the rules of the fund and the provisions of the

Pension Funds Act 24 of 1956 (the PFA).
[2]
[6]
The absence of specific statutory
provisions dealing with pension fund surpluses was ultimately
remedied by way of the provisions
of ss 15A to 15K of the PFA.
The transactions that led to the Sable Fund being placed under
curatorship were implemented before
those provisions came into
operation with a view to ‘unlocking’ the surplus in that
fund for the benefit of the employer.
They need to be described
briefly in view of the various preliminary points that have been
raised and are dealt with below, but
I do so using neutral language
because there is a heated dispute as to their lawfulness. Mr Mostert
maintains that the arrangements
were a fraudulent scheme devised by a
Mr Peter Ghavalas to ‘strip’ the fund of its surplus and
leave it with no assets
and liabilities. This has led to Mr Nash and
Midmacor being criminally prosecuted in proceedings that have not yet
reached a conclusion.
For his part Mr Nash maintains that these
arrangements were lawful, their implementation was sanctioned by the
FSB as the regulator
of pension funds and involved no criminal
conduct on his part. Given that this dispute is to be resolved in
another court on another
occasion and that its resolution is
unnecessary in order to resolve the present case, it is important
that this court not express
a view on the merits of the opposing
contentions.
[7]
With effect from January 1994 companies
controlled by Mr Nash and his family acquired Midmacor from KNJ
Industrial Holdings Ltd.
Midmacor had a number of subsidiaries and
operated various businesses. Its employees were members of the Sable
Fund, which had
previously operated under a different name, and
Midmacor became the principal employer of the fund. Mr Nash was the
Chief Executive
Officer of Midmacor and an employee of an associated
company, Trina Investments (Pty) Ltd. According to some of the
documents in
the record he became a member of the Sable Fund. The
Sable Fund had an actuarial surplus of some R36 million and the
principal
employer was enjoying a contribution holiday.
[8]
In 1995 Midmacor acquired another business
known as Cadac. This business also had a pension fund for its
employees that, like the
Sable Fund, had an actuarial surplus. The
principal employer in respect of that fund was also enjoying a
contribution holiday.
Mr Ghavalas devised the following arrangements
to enable the surplus in the Sable Fund to be unlocked immediately
for the benefit
of the employer, without waiting to exhaust it
through a contribution holiday. All the active members of the Sable
Fund were transferred
to the Cadac Fund, leaving the Sable Fund with
a number of pensioners and only four active members, one of whom was
Mr Nash. Provision
was made to purchase annuities for the pensioners
to provide them with the benefits to which they were entitled under
the rules
of the Sable Fund and possibly some enhancement of those
benefits. This left the Sable Fund with four active members and an
actuarial
surplus of some R36 million, represented by assets held by
the fund and not required to provide for future benefits.
[9]
An otherwise dormant subsidiary of
Midmacor, called Pro-Base Products Pty Limited (Pro-Base), was made
the principal employer under
the rules of the Sable Fund. Pro-Base
had no assets and its only value lay in the potential to unlock the
surplus in the Sable
Fund. This required the assets representing the
surplus to be transferred out of the Sable Fund.  That was
achieved through
an agreement in terms of which Midmacor sold to
Lifecare Group Holdings Limited (Lifecare) the entire issued share
capital of Pro-Base
for a price of R34 560 000 and the
business of the Sable Fund was merged with that of the Lifecare Group
Holdings Pension
Fund (the Lifecare Fund). Illustrative of the fact
that unlocking the surplus was the focus of this transaction was
clause 7.1.21
of the sale agreement, which required Midmacor to
warrant that the financial statements of the Sable Fund as at the
effective date
would fairly present the assets and liabilities of the
fund. In other words it warranted that the surplus reflected therein
would
in fact exist.
[10]
The merger of the business of the Sable
Fund with that of the Lifecare Fund occurred in terms of the
provisions of s 14 of
the PFA. The Lifecare Fund thereby
acquired the assets of the Sable Fund, which assets exceeded its
liabilities by some R 36 million.
At the same time Lifecare
assigned to the Lifecare Fund its obligations under the sale
agreement with Midmacor in respect of the
shares in Pro-Base. This
obliged the Lifecare Fund to pay Midmacor the purchase price of
R34 560 000, which it did. The
four active members of the
Sable Fund agreed to the merger of the businesses of the Sable Fund
and the Lifecare Fund and should
notionally have become members of
the Lifecare Fund, although this does not appear to have happened.
[11]
These transactions left the Sable Fund as
an empty shell. After an investigation by the FSB in 2003 the
application to place the
Sable Fund under curatorship was made and Mr
Mostert was appointed as its curator. He formed the view that these
various transactions
were unlawful and involved the commission of
criminal offences and reported accordingly to the FSB. In his report
he indicated
that he believed the Sable Fund had claims against
various parties including Mr Nash and Midmacor. His problem was that
it lacked
the resources necessary to conduct the necessary
investigations and then pursue actions against these parties to
recover what he
believed was due to the Sable Fund. This led to him
concluding the disputed fee agreement with the FSB.
The fee agreement
[12]
As already mentioned, paragraph 9 of
the order appointing Mr Mostert as the provisional curator of the
Sable Fund provided
for him to receive ‘periodical remuneration
in accordance with the norms of the attorneys’ profession’
to be
agreed with the Executive Officer of the FSB. On 17 July
2006 Mr Mostert wrote to the Executive Officer reporting that the

Sable Fund had no assets other than its contingent claims against
various parties arising from the transactions described above
and
that this presented a problem for him as curator. He said:
‘
4
In terms of paragraphs 6.2 of the order of court whereby the Fund was
placed under
curatorship the costs of the curatorship was anticipated
to be paid by the Fund
alternatively
from assets
owned, administered or held by or under the control of the Fund.
5
In terms of paragraph 9 of the order, the curator is entitled to
periodic
remuneration in accordance with the norms of the attorneys’
profession, as agreed and after consultation with the Financial

Services Board.
6
It would be most unfortunate if due to the lack of finance the
curatorship,
and particularly the legal proceedings that will
inevitably have to be undertaken, could not continue. This would
obviously be
prejudicial to the Fund members.’
[13]
Having expressed these sentiments, Mr
Mostert offered the following as a potential solution to the problem:
‘
7
In the circumstances I am, in my capacity as curator of the Fund, and
as a director
of A. L. Mostert & Company Inc, prepared to
continue the curatorship and undertake any legal proceedings at risk,
and at my
expense (including disbursements) on the basis of a
contingency arrangement in terms of which my remuneration will only
become
payable against recoveries of monies on behalf of the Fund.
8
I am agreeable to finance the disbursements, including counsel’s
fees
in respect of the litigation, on the basis that should there be
recovery by the Fund these disbursements would be a first charge

thereagainst, to be refunded to A. L. Mostert & Company Inc, and
that the proposed remuneration be one third of the amount
recovered
thereafter.’
[14]
This letter brought the following response
from the Executive Officer on 10 August 2006:
‘
SABLE
INDUSTRIES PENSION FUND 12/8/20317/1: CONTINGENCY FEE
With
reference to your facsimile dated 7 August 2006, I wish to confirm
that, for the work done by the curator and A L Mostert and
Company
Incorporated relating to the Sable Fund, since the date upon which
the fund was placed under curatorship, which include
the exercise of
the duties of the curator as well as any legal work undertaken by A L
Mostert and Company Inc, the curator and
the aforesaid law firm shall
be jointly entitled to 33.33% (ie 16.66 per cent each) of all amounts
recovered for the benefit of
the aforesaid Fund, upon the further
undertaking that all disbursements of the curator and the said law
firm, shall be paid by
the said law firm and or the curator out of
any recovery made on  behalf of the Fund, failing which shall be
paid by the said
law firm and/or the curator out of own funds.’
[15]
Other than Mr Mostert not being entitled to
recover disbursements separately, the FSB agreed to his proposal. Two
years later, because
the Sable Fund was entitled to receive funds
from another curatorship that would enable it to discharge legal
expenses already
incurred and self-fund future expenses, this
agreement was varied in terms of a memorandum of understanding (MOU)
concluded between
Mr Mostert, his law firm and a representative of
the FSB. The preamble recorded that:
‘
The
remuneration of the curators/liquidators, the attorneys and other
costs with regard to the business of the Funds is determined
in terms
of the relevant curatorship orders, and the provisions of
Section 28
of the
Pension Funds Act (in
relation to those Fund which have been
or will be placed into liquidation)’
The
reference to ‘funds’ arose because the MOU related to a
number of different pension funds including the Sable Fund,
some of
which were in liquidation and some under curatorship. It was alleged
that all of these funds had, on the advice of Mr Ghavalas,
and in
terms of arrangements similar to those in respect of the Sable Fund,
been reduced to shells after the surpluses in the funds
had been
‘unlocked’ for the benefit of the employers.
[16]
The MOU made the following provision in
respect of the curator’s fees payable to Mr Mostert:
‘
4.
From the date of curatorship until the date of liquidation of the
Fund, the remuneration of the curators and attorney/s shall
be in
terms of the applicable court orders relating to these funds. This
remuneration is subject to the maximum amounts stated
in 6 below.
5. From date
of liquidation of each of the funds the liquidators’
remuneration and costs shall be in accordance with
section 28(A)(1)
of the
Pension Funds Act and
, based on the value of assets recovered,
the liquidators’ remuneration shall be 16.66% (exclusive of
VAT) which shall be
due and payable to the liquidator, or his
nominee, immediately from any recovery of assets being made.
6. It is
recorded that the curator of the Sable Pension Fund has applied for
the fund to be placed in liquidation. Formal notification
from the
FSB with regard to the fund so being placed in liquidation has not
been received. In the circumstances recovery of assets
made prior to
the fund being placed in liquidation shall be subject to the
curators’ remuneration of 16.66% (exclusive of
VAT) of such
assets recovered.’
[17]
The previous agreement in respect of the
legal fees payable to A L Mostert & Co Incorporated was also
varied to provide a cap
to the total fees payable to the firm and a
restriction on the annual fees payable to it in the future. This
aspect of the MOU
is not in dispute between the parties and nothing
more need be said about it. The focus must fall on the curator’s
fees.
Preliminary issues
[18]
Mr Mostert was represented in his personal
capacity, together with his law firm, and separately in his capacity
as curator, together
with the Sable Fund. In the former capacity he
opposed the application on its merits as well as raising several
preliminary issues.
In the latter capacity he abided the decision of
the court on the question of the lawfulness of the fee agreement –
the only
subject matter of the case – but opposed it on the
basis that Mr Nash and Midmacor lacked
locus
standi
to bring the application. In
argument before the high court and this court the argument was
expanded to include a contention that
the application was an abuse of
the process of the court and should be dismissed on the grounds of
undue delay. Mr Mostert raised
the same three points in his personal
capacity, save that the abuse of process argument was formulated as
an application of the
‘unclean hands’ doctrine. The FSB
addressed only the merits of the fee agreement.
[19]
No explanation was proffered by Mr Mostert
for taking this course and incurring the expense of two sets of two
counsel, as well
as separate attorneys, one based in Johannesburg and
one in Cape Town. In my view, it was not only wasteful, but
inappropriate.
The fee agreement was concluded between him in his
capacity as curator and the FSB. In his personal capacity he was not
a party
to it and once his firm was no longer claiming a contingency
fee, but conventional legal fees for services rendered, subject to
a
cap, it had no interest in the matter. Why it was necessary for them
to become separately embroiled in the litigation is not
apparent, any
more than it is apparent why he thought it inappropriate for him in
his capacity as curator to defend the agreement
he had concluded with
the FSB in that capacity. The reality is that he did not abide the
decision of the court on the merits or
the preliminary issues. If his
intention was to project himself as independent and above the fray
the attempt failed miserably,
and brought to mind the aphorism
‘willing to wound, but afraid to strike’.
[3]
His two answering affidavits were replete with allegations of
misconduct and criminality against Mr Nash, who responded with an

equally bitter attack on Mr Mostert and the FSB involving allegations
of a corrupt relationship between them. This quite unnecessarily

increased the length of the papers and the costs of the litigation.
Locus standi
[20]
Under s 38 of the Constitution the
grounds of standing in our law have been considerably expanded and a
broad approach is to
be taken to ‘own interest’ standing
under s 38
(a)
.
[4]
In approaching that question Mr Nash’s contention that the fee
agreement is unlawful must be assumed to be correct.
[5]
If it is correct then some amounts that have been paid to Mr Mostert
as curator may have to be disgorged and repaid to the Sable
Fund. Any
resulting surplus accruing in the Sable Fund will fall to be
distributed in accordance with a scheme of apportionment
of surplus
under s 15B of the PFA. As Mr Nash claims to have been a member
of the Sable Fund before the impugned transactions
were undertaken
and Midmacor was the principal employer they would potentially at
least be entitled to benefit from such an apportionment.
That seems
to me to be more than sufficient to give them own interest standing
to pursue these proceedings.
[21]
Mr Mostert in his capacity as curator
attacks the standing of Mr Nash and Midmacor on the footing that the
former’s membership
of the Sable Fund and the latter’s
position as principal employer were part of the scheme to ‘unlock’
the surplus
in the fund. He then characterises their respective
positions as a charade. That overlooks two things. First, it ignores
the requirement
that the allegations by the parties claiming standing
must be accepted as correct, as standing is an issue to be determined
in limine
before
the merits are addressed.
[6]
Second, it requires us to enter upon and determine the merits of Mr
Mostert’s contentions about the nature of the arrangements
and
determine whether they were unlawful, criminal or a charade. As noted
in para 6 it is inappropriate for us to do so. That is
not the
question before us, it is before another court and it is impossible
to resolve the factual disputes on these papers.
[22]
An approach that asked whether Mr Nash and
Midmacor had a direct and substantial interest in the outcome of the
litigation arrives
at the same result.
[7]
The issue is the validity of the fee agreement between the curator
and the FSB. There are no trustees to protect the interests
of
persons, such as pensioners, former members or a former principal
employer. The invalidity of the fee agreement is directed
at
recovering funds for the Sable Fund that would in turn form part of a
surplus in the fund available for distribution in accordance
with a
surplus apportionment exercise. That provides a sufficiently direct
and substantial interest in the outcome of the litigation
to confer
standing on Mr Nash and Midmacor.
[23]
At the risk of piling Pelion upon
Ossa there is a further ground for recognising standing on the part
of Mr Nash and Midmacor. It
lies in s 5(8) of the FI Act, which
provides that:
‘
Any
person, on good cause shown, may make application to the court to set
aside or alter any decision made, or any action taken,
by the curator
or the registrar with regard to any matter arising out of, or in
connection with, the control and management or
the business of an
institution which has been place under curatorship.’
This section is
clearly addressed to the question of standing and not necessarily a
possible review regime distinct from PAJA, an
issue debated in
argument that we do not need to decide. It is couched in wide
language (‘any person’) and requires
only that good cause
be shown for challenging a decision or action by either the curator
or the registrar. The conclusion of the
fee agreement is an action by
the curator and the FSB in connection with the control and management
of the Sable Fund. While the
section might not permit of a challenge
by someone with no connection whatsoever to a fund that can hardly be
said of Mr Nash and
Midmacor. The claim that they lacked
locus
standi
to bring these proceedings must
be rejected.
Unclean hands and
abuse of process
[24]
This argument depended entirely upon the
contention that Mr Nash was a party to a dishonest scheme to strip
the Sable Fund of its
surplus and to do so by practising a fraud upon
the Registrar of Pension Funds in procuring the s 14 approval
for the merger
of the Sable Fund with the Lifecare Fund. It was
submitted that the high court was correct in approaching the matter
by holding
that Mr Nash was guilty of the alleged crimes on an
application of the
Plascon-Evans
rule.
I disagree and think that the high court was wrong to adopt that
approach. Were it correct a respondent who made allegations
of
criminality against the applicant, however hotly disputed, would be
able to invoke those allegations in support of the contention
that
the litigation constituted an abuse of process and insist that the
court determine the issue on their papers and allegations.
That
cannot be. I have already given reasons for saying that it is
inappropriate for this court in this case to determine the lawfulness

of Mr Nash and Midmacor’s conduct or whether they are guilty of
the crimes Mr Mostert imputes to them. That is equally true
for the
purpose of an argument that they are acting in a manner amounting to
an abuse of process.
[25]
While courts are entitled to prevent any
abuse of process it is a power that should be sparingly exercised.
[8]
The starting point is the constitutional guarantee of the right of
access to courts in s 34 of the Constitution. That right is
of
cardinal importance for the adjudication of justiciable disputes.
[9]
But where the procedures of the court are being used to achieve
purposes for which they are not intended that will amount to an
abuse
of process.
[10]
The argument on behalf of Mr Mostert arises from an email in which Mr
Nash expressed the hope that this litigation, if successful,
would be
a ‘dagger at their commercial heart’ referring to Mr
Mostert and his claims against Mr Nash. The sentiment
being expressed
was that he hoped success in this litigation would deprive Mr Mostert
of the sinews of war to continue pursuing
his claims against Mr Nash
and Midmacor.
[26]
I could understand this argument if the
litigation was wholly and obviously frivolous or unsustainable in
law,
[11]
or the sole purpose in launching it was to bring Mr Mostert to his
financial knees by burdening the proceedings with an enormous
range
of unnecessary interlocutory procedures. But that is not the
complaint, nor was it the tenor of Mr Nash’s email. His
view
expressed in the same document was that ‘we have a very good
case’ and that if it were successful it would have
the
financial consequence of rendering it difficult or impossible for Mr
Mostert to continue pursuing him. This is not a case such
as
Beinash
v Wixley
where a subpoena was issued
solely to harass the recipient. Mr Nash has not been the one
responsible for the papers in this appeal
running to nearly 900
pages. That was Mr Mostert through his adoption of separate
representation for himself personally and in
his capacity as curator,
with a resultant duplication of affidavits. Throughout, Mr Nash’s
main purpose has been to set aside
the fee agreement between Mr
Mostert and the FSB governing his fees as curator of the Sable Fund.
Only success in that perfectly
proper litigious endeavour may bring
with it the financial consequences for which he hopes. The contention
that the application
should be dismissed as an abuse of process, or
as being tainted by ‘unclean hands’ must be rejected.
Delay
[27]
This argument was based on the contention
that the conclusion of the fee agreement constituted administrative
action and these proceedings
were a review of that action. That was a
strange contention because, speaking in his personal capacity, Mr
Mostert had admitted
in his answering affidavit that the conclusion
of the remuneration agreement did not constitute administrative
action, and the
FSB adopted the same stance. It was accordingly
accepted by all parties on the affidavits that this was not
administrative action.
[28]
In argument a different stance was
adopted. It was submitted that the conclusion of the fee agreement
between Mr Mostert and the
FSB constituted administrative action by
an organ of state. A challenge to the lawfulness of the agreement had
to be made in terms
of s 6(2) of PAJA.
[12]
By virtue of s 7(1) of PAJA the application needed to be brought
within 180 days of Mr Nash becoming aware of the allegedly
unlawful
administrative action. He had obtained a copy of all the documents
constituting the fee agreement on 13 January 2011 in
response to a
subpoena served in the course of his criminal trial. This application
was launched on 11 July 2013 some 30 months
later and considerably
out of time so far as the 180 day period prescribed by PAJA was
concerned. Unless that period could be extended
in the interests of
justice in terms of s 9(1)
(b)
,
read with s 9(2), of PAJA the court was precluded from entering
into the merits of the review
[13]
and, so it was submitted, there were no grounds for extending the
period of 180 days. As an alternative it was submitted that even
if
the proceedings constituted a review outside the purview of PAJA
under the principle of legality the broad common law delay
rule
applied
[14]
and there was no reason to overlook the delay.
[29]
On behalf of Mr Nash it was submitted that
we were not concerned with administrative action or a review, whether
under PAJA or the
principle of legality, but with whether the fee
agreement concluded between Mr Mostert and the FSB complied with the
requirements
of para 9 of the order appointing Mr Mostert as
provisional curator of the Sable Fund. If it did that was an end to
the matter.
If it did not then it was an arrangement falling outside
the ambit of that order and appropriate declaratory relief should be
granted
together with any relief necessarily consequential upon that
declaration.
[30]
It is correct that the FSB is an organ of
state as defined in s 239 of the Constitution. For present
purposes I also accept
that in general the conclusion of a contract
for the procurement of goods or services by an organ of state
constitutes administrative
action.
[15]
My principal difficulty lies with the proposition that the fee
agreement between Mr Mostert and the FSB was such a contract. Mr

Mostert is the curator of the Sable Fund because he was appointed as
such by the high court. His entitlement to remuneration for
his
services arose from the terms of that order, which the court was
empowered to make in terms of s 5(5)
(c)
of the FI Act. The only function of the
FSB was to agree with him the basis for his periodic remuneration in
accordance with the
‘norms of the attorneys’ profession’.
That agreement was not one to procure his services on behalf of the
FSB
or any other organ of state. He was to render services as curator
of the Sable Fund because the high court appointed him to that

position, not in terms of a contract with the FSB.
[31]
This accords with the FSB’s own
approach as reflected in an answer it prepared for the Minister of
Finance in response to
a parliamentary question posed and answered on
18 February 2011 in relation to the appointment of curators to
pension funds. The
answer reads:
‘
Curators
are appointed by a Court under the provisions of
section 5
of the
Financial Institutions (Protection of Funds) Act, No 28 of 2001
,
on application by the Executive Officer of the FSB (the Registrar). …
The provisions
of the Financial Institutions Act do not specify any requirement for
the identification of curators. However, although
not obliged to
accept or take names of possible curators proposed by any party, the
court normally allows the FSB to propose names
to consider for
appointment when an application for curatorship is brought before the
High Court. Hence the Registrar conventionally
identifies and
nominates proposed curators for consideration and appointment by the
Court. In making application for the appointment
of curators, the
Registrar attaches the proposed individuals’ CV’s to the
Court papers and
the Court has to be satisfied that they are
suitable candidates
.
The
remedy of curatorship is a regulatory tool at the disposal of the
Registrar.
The
appointment of a curator is by the court, and not an outsourcing of a
function or service which would require a tender process.
’
(Emphasis added.)
[32]
In the light of this answer it is no
surprise that the FSB has not aligned itself with the objection that
these proceedings are
review proceedings under PAJA or the principle
of legality. It has quite properly contented itself with defending
the conclusion
of the fee agreement as having been concluded in terms
of para 9 of the court order appointing Mr Mostert as curator of the
Sable
Fund.
[33]
The fee agreement was not a contract. A
contract is an agreement arising at the conclusion of negotiations
between the parties entered
into with the intention of creating
contractual relations. It is often said to involve an offer and an
acceptance with the intention
of creating legal obligations. Not
every agreement is a contract. Only those concluded with the
animus
contrahendi
, the intention to create a
contractual relationship, are contracts. It is incorrect to assume
that when the FSB and Mr Mostert
agreed the basis upon which Mr
Mostert would charge fees, purporting to act in terms of the court
order, their agreement was a
contract. The subsequent conclusion of
the MOU made this point even more clearly. Not only did it describe
itself as an understanding
not an agreement, but it recorded in
clause A of the preamble that the remuneration of the curators was
determined in terms of
the relevant curatorship orders. The failure
to appreciate this is the first error underlying the contention that
the conclusion
of the agreement was administrative action. As the FSB
correctly said, in agreeing the basis upon which Mr Mostert could
charge
fees it was not concluding a contract for his services, but
seeking to comply with the court order. This does not involve a
conjuring
trick or a work of magic, but an application of basic legal
principles.
[34]
The second error is to treat the court
ordained means for determining Mr Mostert’s remuneration as an
exercise of public power
or the performance of a public function in
taking a decision of an administrative nature in terms of any
legislation.
[16]
The FSB was acting in terms of the court order, not in terms of any
legislation. It was not performing any function in the administration

of the state. Had no agreement been reached Mr Mostert and the FSB
would have needed to go back to the court to ask it to resolve
their
differences and itself fix the remuneration. Mr Mostert’s
position as provisional curator would not have altered. Nor
would his
entitlement to be remunerated for performing that function have been
altered or ceased. If the remuneration so determined
was
unsatisfactory to Mr Mostert, he could have applied to the court to
be released from his role as curator. That would not have
involved
any breach of contract for the simple reason that he was not a party
to any contract with the FSB.
[35]
Properly viewed it is apparent that the
court was the arbiter of whether the fee agreement complied with its
order. The FSB accepted
that the court could vary any agreement if it
transpired that its terms were inappropriate or it could fix the
remuneration itself.
There were examples in the papers of its doing
so. If it came to the court’s attention that the agreement
concluded between
Mr Mostert and the FSB fell outside the parameters
it had set, it could intervene to give effect to its own order. That
flows from
the rule of law and the fact that in terms of s 165(5)
of the Constitution court orders must be obeyed until set aside.
[17]
It is common cause between the parties that the court order meant
that Mr Mostert was only entitled to a reasonable fee. If the
court
discovered that the remuneration agreed between Mr Mostert and the
FSB was grossly exorbitant, it would clearly have been
entitled, and
in my view obliged, to intervene
mero
motu
. The suggestion that its hands
would be tied unless some party were to bring review proceedings does
not hold water. It is important
to recognise this because, were it
otherwise, there might be no means whereby the court could secure
compliance with its order,
bearing in mind that the agreement is one
between the curator and the FSB and the curator’s subsequent
actions are subject
to external supervision only by the FSB.
[36]
For that reason alone the complaint of
delay must be rejected. But even had I accepted that these
proceedings are properly a review
under PAJA or the principle of
legality, I would without hesitation have extended the time period of
180 days
[18]
or overlooked the delay, as the case might be. I accept that Mr Nash
gives little or no explanation for waiting for over two years
in
order to bring these proceedings, but there are obvious mitigating
factors. First and foremost the documents only came to hand
as a
result of a subpoena addressed to the FSB in the course of the
criminal trial in which he and Midmacor are the accused. It
is
understandable that their relevance would initially be considered in
the light of their need to defend themselves there. Indeed
the record
shows that documents relating to the FSB nominating Mr Mostert for
appointment as curator of another fund formed the
subject of
cross-examination of the Registrar of Pension Funds at the criminal
trial and resulted in the disquieting answer that
he invoked his
privilege against self-incrimination.
[37]
Second, it is apparent that Mr Mostert has
received very substantial amounts pursuant to the arrangement both in
respect of the
Sable Fund and in respect of ten other funds,
similarly situated. This emerges from the answer by the Minister of
Finance to another
parliamentary question on 18 February 2011. That
revealed that Mr Mostert had earned some R23.6 million as curator of
the Sable
Fund in addition to there having been legal fees and
disbursements of over R7 million of which a reasonable
proportion must
represent fees paid to his law firm. Taking all 10
funds together he had recovered nearly R946 million and fees as
curator or liquidator
amounted to R118.5 million. Legal fees and
disbursements were over R45.5 million. These are very substantial
sums of money and
substantially reduced the amounts recovered for the
benefit of pensioners and members of these funds.
[19]
If the fee agreements concluded by Mr Mostert and the FSB were not in
accordance with the court orders under which he was appointed,
it
seems to me a matter of public importance that a court determine
this, so that the interests of past members of funds and pensioners

are protected.
[20]
That is so notwithstanding the fact that according to the FSB they
have already been the beneficiaries of the recoveries by the
curators
to the tune of some R750 million.
[38]
Third, that view is reinforced by the
approach that the FSB has taken of addressing only the challenge to
the fee agreement and
doing so on its merits. It is consistent with
the view of the Executive Officer of the FSB, Mr Tshidi that curators
are officers
of the court by which they are appointed. As an organ of
state that is likely to be confronted with similar situations in the
future,
the FSB is naturally anxious that it should know once and for
all whether a fee arrangement of the type it concluded with Mr
Mostert
and has apparently concluded in other cases is legitimate
and, if so, within what parameters.
[39]
Fourth, I am unconvinced that the setting
aside of the fee agreement would have the cataclysmic effects on the
funds suggested by
Mr Mostert when wearing his curator’s hat.
He painted a gloomy picture where all financial statements and
reports would have
to be retracted and re-audited to determine the
surplus assets for distribution. The determination of a reasonable
fee for the
work to date would have to be recalculated on an hourly
basis for a senior attorney which would be impossible because
time-billing
was not generated for the curatorship. A delay of
several years was foreshadowed with some 13 000 former members
of funds
being prejudiced and having their benefits suspended. Mr
Mostert even went so far as to suggest that there might be claims for
refunds of overpaid surplus.
[40]
My scepticism over the weight to be
attached to these allegations is considerable. Mr Mostert said that
the court must exercise
its remedial powers in order to prevent
prejudice to the Sable Fund and its beneficiaries. Quite so, but then
in the next breath
he said that the court must ensure ‘that the
benefits of the fee agreement to the Fund are maintained’. It
is quite
unclear what he meant by this. He is himself the beneficiary
of the fee agreement not the Sable Fund. These are amounts forming

part of the recoveries made by him as curator that have been paid to
him as curator. If they were not properly paid, because the
agreement
was unlawful, so that he has to repay amounts to the fund that will
be a benefit enuring to the former members of the
fund, not a
disadvantage.
[41]
Nor can I see that the logistical nightmare
scenario that Mr Mostert tries to paint will arise in the event that
the fee agreement
is held to be unlawful. That will not disentitle
him to a reasonable fee for his services as curator determined in
accordance with
the norms of the attorneys’ profession. Such a
fee would need to be determined as between him and the FSB in an open
and
transparent way and approved by the court that appointed him. If
he was overpaid under the current fee agreement there would be
an
obligation to refund some amount to the Sable Fund and potentially to
other funds similarly situated. Any amount so repaid would
then be
available to be distributed to former members of the fund by way of a
supplementary apportionment exercise.
[42]
None of this should involve the logistical
problems that someone with his claimed experience and knowledge of
the field would not
be able to cope with. Insofar as he says that it
would be impossible for another curator to be appointed at this stage
of the curatorship,
that hardly seems relevant as the decision over
the lawfulness of the fee agreement would not impinge on his
appointment as curator
or require the appointment of a new curator.
In any event the same problem would arise were he to die, or become
unable to pursue
his duties as curator, or decide to retire. It is a
possibility ever present in this situation where the curator is not a
partner
in a large organisation or firm, but an attorney in a small
firm with only one other partner and one professional assistant.
[43]
Lastly under this head it is significant
that the FSB does not raise similar concerns if the agreement is set
aside. Neither in
the affidavit deposed to by the Executive Officer
of the FSB, nor in the heads of argument on behalf of the FSB, is
there any suggestion
that the effect of setting aside the fee
agreement would lead to any seriously detrimental consequences for
the Sable Fund and
its former members. The general information
circulars to the members of affected funds issued by the FSB in
November 2011 and October
2012 make it clear that monies already
distributed in terms of surplus apportionment exercises have been
lawfully distributed and
the beneficiaries would not be under any
obligation to refund them.
[44]
Cumulatively, even if the delay rule were
applicable, either under PAJA or under the common law, those factors
outweigh the impact
of the delay and justify an extension of time
under s 9 of PAJA or that the delay be overlooked. There is no
suggestion, beyond
the prospect of Mr Mostert being required to repay
to the Sable Fund some amounts received by him as fees, of anyone
being prejudiced
by the delay between January 2011 and July 2013,
when these proceedings were commenced. Finally, Mr Mostert has not
approached
the matter with any urgency. An application launched in
July 2013 was met with two answering affidavits deposed to on 4 May

2016, nearly three years later. In the meantime he pursued a range of
other litigation against Mr Nash and Midmacor. The preliminary

objections based on delay must be dismissed.
The merits
[45]
Turning to the merits all parties (and my
colleague) are agreed that the source of the fee agreement is the
requirement in para
9 of the order appointing Mr Mostert as curator
that he would be entitled to ‘periodic remuneration in
accordance with the
norms of the attorneys’ profession’
as agreed between him and the FSB. When the provisional curatorship
order was made
final and the curator’s powers expanded, further
provision was made empowering him to bring about a voluntary
dissolution
of the fund. In that event his remuneration was to be
subject to the provisions of s 28A of the PFA dealing with the
remuneration
of a liquidator. That section provides for a very
different fee regime to that in the fee agreement. It reads:
‘
(1)  The
registrar shall prescribe the services for which remuneration shall
be payable to the liquidator of a fund which
is terminated or
dissolved voluntarily, whether wholly or in part, and prescribe the
tariff of remuneration in respect of those
services.
(2)  Notwithstandin
g
subsection (1)
the
registrar may reduce or increase the liquidator’s remuneration
if satisfied on reasonable grounds that there is good reason
for
doing so, and the registrar may disallow the liquidator’s
remuneration because of any failure or delay to carry out the

liquidator’s duties or to carry them out properly and
effectively.’
[46]
Mr Nash expressed the objection to the fee
agreement in the following way in his founding affidavit:
‘
This
is an application for the setting aside of certain unlawful
agreements … purportedly concluded, inter alia, between
the
curator of the Sable Fund (Mostert) and the FSB, and ancillary relief
to enforce the provisions of prayer 9 of the order by
Poswa J …
dated 20 April 2006 (“SJN1”). The unlawfulness of the
agreements arises, amongst others, from non-compliance
with paragraph
9 of “SJN 1” [the court order] read with section 5(5) of
the Financial Institutions (Investment of Funds)
Act … and the
Contingency Fees Act, [66
of] 1997 [CFA].’
The complaint was
thus that the fee agreement did not comply with the requirements of
the court order when read in the light of
the two mentioned statutes.
There is an ambiguity about this. It is not clear whether he was
saying that the unlawfulness lay in
non-compliance with the court
order, read in the light of the FI Act, with non-compliance with the
CFA providing a separate ground
of unlawfulness, or whether he was
saying that the court order needed to be read in the light of both
these statutes. That will
need to be addressed in due course.
Public policy
[47]
The high court upheld Mr Nash’s
attack on the fee agreement, but on the grounds of an extension of
public policy and not on
the basis advanced by him. The judge held
that the curator’s remuneration had to be agreed in accordance
with the norms of
the attorneys’ profession. He recognised that
the main activity of the curator, at least at the outset, would be to
frame
demands upon persons believed to be liable to the fund and to
prosecute legal proceedings if his demands were not met. To that end

he was empowered to employ counsel and attorneys.
[48]
Tuchten J then considered the cases that
are authority for the proposition that at common law agreements
between a legal practitioner
and the client that the legal
practitioner would be remunerated out of the proceeds of the
litigation were contrary to public policy,
unenforceable and
unlawful.
[21]
He rejected a submission that these cases applied when an attorney
undertook non-litigious work as opposed to litigation on behalf
of a
client and said:
‘
I
do not read the cases to say this. To my mind the position is rather
that the question whether contingency fee agreements between
legal
practitioner and client in non-litigious matters were permitted at
common law has not yet been expressly decided.’
[49]
Tuchten J analysed the reasons underpinning
this prohibition at common law and concluded that:
‘
With
all this in mind, there can be no justification for allowing legal
practitioners to conclude contingency fee agreements in
relation to
non-litigious work. … I find that contingency fee agreements
in relation to non-litigious work are against public
policy for
broadly the same reasons that such agreements are contrary to public
policy in relation to litigious work.’
Having reached this
conclusion he engaged in a brief consideration of the provisions of
the CFA and, while accepting that on its
terms it did not apply to
the work of a curator, held that there was no reason why it did not
create a norm of the attorneys’
profession and that the parties
could have concluded a remuneration agreement that complied in
substance with the CFA and thus
brought themselves within that norm.
[50]
Wisely in my view, counsel for Mr Nash did
not seek to support this line of reasoning. Whether described as
champerty, maintenance
or a
pacta de
quota litis
, the arrangements between
legal representatives and their clients that have over the years been
condemned as contrary to public
policy have been those where the
legal representative or a third party was remunerated out of, or took
a share of, the proceeds
of litigation. The public policy reasons
that have informed this condemnation relate to the undesirability of
stirring up litigation
and, in regard to legal representatives, the
undesirability of the lawyer having a personal financial interest in
the outcome of
the litigation. In that case the fear is that the
lawyer will cease to be an impartial adviser to the client and may be
tempted
to depart in various ways from the strict path of rectitude
in the conduct of the litigation.
[51]
None of this has any direct bearing on the
situation with which we are concerned, much less on situations where
attorneys negotiate
an agreement on behalf of a client; advise on the
structure of a commercial transaction; obtain a valuable licence on
behalf of
a client; or act and provide advice in relation to the many
and varied areas of life on which people may seek their assistance.

How public policy should play out in those areas is not immediately
apparent, especially when it is recognised that public policy
is now
informed by the norms and values in the Constitution and particularly
the Bill of Rights.
[52]
The judge was not asked by Mr Nash to
engage in such a dramatic extension of public policy and there was no
material before him
that justified the extension. If the common law
prohibition on financial arrangements between attorney and client
that involve
the attorney being remunerated with a share of the
proceeds of litigation is to be extended to other situations, that
should be
done on a case by case basis after a careful analysis of
all the interests involved, the likelihood of this conducing to
conduct
on the part of the attorney that is unacceptable and the
impact of constitutional values on transactions of the type under
consideration.
For those reasons the approach of the judge in the
high court cannot be supported.
The CFA
[53]
The argument on behalf of Mr Nash was more
nuanced. It took as its starting point the proposition that the fee
agreement concluded
between Mr Mostert and the FSB needed to be in
accordance with the norms of the attorneys’ profession. It
contended that
on a proper analysis of the role Mr Mostert was to
play as curator, bearing in mind that he would use his own firm to
perform legal
work, he was in substance an attorney pursuing the
recovery of amounts for the Sable Fund by way of demands and, if
necessary,
litigation. In any litigation he would be both the
de
facto
claimant as curator of the fund
and the lawyer acting for the fund. He would personally provide the
means to litigate and take
the risk of the litigation not succeeding.
The glittering prize at the end of the day was the prospect of a
substantial share in
the proceeds of that litigation. Any distinction
between his situation and that of an attorney conducting litigation
in terms of
a champertous agreement or a
pactum
de quotis litis
, to the extent that
those may encompass slightly different arrangements, was illusory.
His situation as curator should be treated
as being identical with
that of an attorney acting for a client in the position of the Sable
Fund. Such an arrangement was not
only unlawful, but also
incompatible with the norms of the attorneys’ profession.
[54]
Recognising that the CFA introduced an
exception to this situation in permitting attorneys to conduct
litigation on behalf of clients
under a contingency fee agreement, it
was submitted that the exception was limited. In terms of s 2 of
the CFA attorneys are
now permitted to conduct litigation on a
contingency basis in the sense of only having a claim for payment of
professional fees
if the action or proceeding succeeds. If the claim
succeeds they may then recover their fees from their client. They may
also agree
with their client to conduct the litigation on the basis
that they will not charge their ordinary fees, but will, if the claim
succeeds to an agreed extent, charge an enhanced fee. Such an
enhanced fee is subject to two restrictions. It may not be greater

than double their ordinary fee and overall it may not exceed 25 per
cent of the amount recovered by the client. Furthermore the

contingency fee agreement must be in writing and conform to specific
formal requirements set out in s 3 of the CFA. Any
non-compliance
with, or departure from, the requirements of the CFA,
either as to substance or as to form, renders the contingency fee
agreement
invalid and unenforceable.
[22]
[55]
Building upon this, it was contended that
the norms of the attorneys’ profession had been altered by the
CFA, but only to
a limited degree, and if Mr Mostert wished to
conclude a fee agreement entitling him to a share in the amounts
recovered on behalf
of the Sable Fund he needed to do so in a way
that in substance complied with the provisions of the CFA. Counsel
summarised the
argument in the heads in the following terms:
‘
The
respondents contend that (i) the Poswa Order incorporates the CFA as
part of the norms of the attorneys’ profession, (ii)
any
contingency agreement that does not comply with the CFA is illegal,
(iii) the contingency fee agreement does not comply with
the
provisions of the CFA, and consequently the contingency fee
agreements is illegal.’
[56]
Two flaws in this argument emerged in the
course of argument and were, as I understood it, accepted by counsel.
The first related
to the endeavour to equate Mr Mostert with an
attorney conducting litigation for a party. That was not his role and
there was no
attorney client relationship between him and the FSB. An
attorney conducts litigation for a client in terms of the mandate
given
by the client. Mr Mostert had no such mandate from the Sable
Fund or the FSB. He was a court appointed curator charged with taking

control of the fund and administering it. Others would conduct
litigation and he was authorised to employ others for that purpose.

His role was to investigate what had happened, with the advantage of
the report on the investigation already undertaken by the
FSB; to
take decisions on how to proceed; to make demand on parties he
identified as being responsible to reimburse or compensate
the fund
for any amounts; to negotiate if possible with those parties to make
a recovery for the benefit of the fund;
[23]
to institute proceedings if he thought it appropriate; to invest and
care for funds recovered and to prepare and implement schemes
for the
appropriation of any surplus arising in the fund in consequence of
his endeavours. The endeavour to equate his role with
that of a legal
representative acting for a share in the proceeds of litigation was
misplaced.
[57]
The second flaw lay with the CFA itself and
the suggestion that it established a new norm for the legal
profession permitting the
charging of contingency fees, but defining
and restricting the parameters within which that could be done. Here
the difficulty
lies in the fact that the CFA is specific in providing
for contingency fees for legal representatives in the performance of
their
professional obligations. Mr Mostert was not acting as a legal
practitioner and was not engaged in proceedings as defined in the

CFA. His responsibilities as curator involved the management and
administration of the Sable Fund including the apportionment and

distribution of any surplus arising from his endeavours to recover
amounts from third parties. The CFA does not deal with that
situation
and the strait jacket that the argument sought to put around the fee
arrangements for the curator did not fit and cannot
be made to fit.
One may not take a statute that expressly deals with one set of
circumstances and apply it in a wholly different
context to which it
is inapplicable.
Non-compliance with para
9 of the court order
[58]
Accepting these difficulties with the
argument as articulated in the heads of argument, counsel narrowed
its scope in the following
way. Paragraph 9 of the provisional
curatorship order remained the starting point. It provided that the
curator would be entitled
to periodic remuneration in accordance with
the norms of the attorneys’ profession. This expression fell to
be construed
in the same way as any other court order.
[24]
It meant in the first instance that the fees charged by the curator
should be subject to the ordinary professional constraints
of the
profession. In practice this meant that fees had to be reasonable, or
as counsel for Mr Mostert put it ‘reasonable,
appropriate and
not excessive’. In the second place it meant that the fees
agreed upon should be determined in the ordinary
and conventional way
in which attorneys charge for their services and any departure from
this was not permitted by the terms of
the order.
[59]
Counsel contended that the fee agreement
did not comply with the second requirement, in that to charge a fee
on the basis of a percentage
of the amount recovered on behalf of a
client is not the ordinary and conventional way in which attorneys’
fees are determined.
Conventionally attorneys charge for their
professional services on a time basis calculated at an hourly rate,
the amount of which
will depend upon the skill, experience and
seniority of the attorney, the nature and complexity of the work and
its importance
to the client and factors of that nature. While the
work of the curator was different from the conventional role of an
attorney
in litigation, there were substantial similarities insofar
as the recovery of amounts on behalf of the Sable Fund was concerned.

The norm in regard to litigation was clear, namely that charging on
the basis of being paid a percentage of the amount recovered
was not
permissible save within the narrow constraints provided by the CFA.
For those reasons the fee agreement was not one contemplated
or
permitted by the court order. Had the judge who granted it (Poswa J)
been asked whether his order contemplated that the curator’s

fees would be determined as a percentage of the total amount
recovered, it was submitted that he would have answered in the
negative.
[60]
Before the merits of this argument can be
addressed it is necessary to decide whether it was open to counsel to
advance the argument
in this way. What this boils down to is whether
the argument that the fee agreement did not comply with the court
order was so
inextricably linked to the contention that it had to
conform to the requirements of the CFA that it cannot be advanced in
a way
that divorces it from the CFA. It had been advanced in the
heads of argument in the passage quoted in para 55 on the footing
that
the CFA was one of the norms of the attorneys’ profession
and any contingency agreement not complying with the CFA was illegal.

Was it open to Mr Nash now to contend that the agreement did not
comply with the norms of the attorneys’ profession, without

tying the argument so directly to the CFA? I should make it clear
that this argument was not that the fees charged were unreasonable.

Compliance with the court order was the issue.
[61]
This raised two questions. Was the argument
one that was open on the papers before the court and, if so, would
the appellants be
prejudiced in any way by permitting it to be
argued. Subject to the first of those receiving an affirmative answer
and the second
a negative answer it was open to counsel to advance
the argument.
[25]
This court has repeatedly held that it is open to parties to argue
fresh points on appeal, provided that involves no unfairness
to the
party against whom the point is directed.
[26]
[62]
The passage from the founding affidavit
already quoted in para 46 was ambiguous in saying that:
‘
The
unlawfulness of the agreements arises, amongst others, from
non-compliance with paragraph 9 of “SJN 1” [the court

order] read with section 5(5) of the Financial Institutions
(Investment of Funds) Act … and the
Contingency Fees Act,
1997
.’
The important
question is whether Mr Nash complained of the fee agreement’s
unlawfulness on the simple ground of non-compliance
with para 9 of
the court order, or was the argument restricted to unlawfulness
flowing from non-compliance with the CFA. In developing
it in his
founding affidavit he drew attention to the fact that in relation to
another pension fund a court order was obtained
that specifically
provided for the curators to receive a fee calculated as a percentage
of the amounts recovered. Mr Nash commented
that this demonstrated
that Mr Mostert and the FSB knew that such a fee was not one
permitted by the norms of the attorneys’
profession.
[63]
Mr Nash said specifically that the court
order, based on s 5(5) of the FI Act ‘did not (and does
not) authorise payment
of any contingency fee’. He repeated
this at a later stage of the founding affidavit when summarising his
contentions regarding
the lawfulness of the fee agreement, saying:
‘
Fifthly,
any purported agreement in [the letter quoted in para 14] between the
FSB and Mostert as curator does not comply with paragraph
9 of the
Poswa order. The yardstick is the attorneys’ profession.’
He went on to say
that ‘in any event’ the CFA capped a success fee.
[64]
There is no doubt that Mr Nash launched a
general assault on the validity of the fee agreement. To that end he
prayed in aid the
Constitution, the principle of legality, the CFA,
the common law and the terms of the curatorship order. But in the
face of the
statements that ‘all contingency fees agreements
contravene paragraph 9 of the Poswa order’ and the transaction
itself
‘contravenes the law – the CFA, the common law and
the Poswa order’, it seems to me impossible for Mr Mostert
and
the FSB to contend that they were taken by surprise by the contention
that the fee agreement was not in conformity with the
provisions of
para 9 of the order because it was not in accordance with the norms
of the attorneys’ profession. Nor did they
do so. Mr Tshidi,
who deposed to the answering affidavit on behalf of the FSB,
specifically argued that the fee agreement was a
permissible one
within the broad guideline provided by the norms of the attorneys’
profession.
[65]
As to the content of the norms of the
attorneys’ profession these were canvassed in some detail in
the affidavit of Mr Mostert
and that of Mr Tshidi. Both had every
opportunity to show where those norms operated to permit a fee
agreement based on payment
of a percentage of the amounts recovered.
Finally, it was not suggested by any of the three teams of counsel
who appeared before
us representing Mr Mostert and the FSB that they
were prejudiced by this argument or that it was impermissible for it
to be advanced
on the papers as they stood. It was therefore
permissible for counsel to advance his argument on behalf of Mr Nash
and Midmacor
on this revised basis. I turn then to consider the
argument on its merits.
[66]
The Executive Officer of the FSB, Mr
Tshidi, explained that at the provisional stage of a curatorship the
court will state a basis
for the curator’s remuneration and the
details will then be agreed between the curator and the FSB ‘within
the ambit
of the Order’. Over the years courts have approved
different bases for remuneration. The usual basis is the norms of the
curator’s profession. Where the curatorship is no more than a
run-off of the entity’s business and a sale of its assets,
the
same basis as a liquidator, that is, an
ad
valorem
or commission basis, is
appropriate. Sometimes a monthly salary or hourly fee is stipulated
and at others the tariff of the Auditor-General
for outsourced
auditing work by private auditors.
[67]
In one instance (the Datakor case), in
relation to three pension funds, the court approved the charging of a
contingency fee as
a percentage of amounts recovered for the funds.
Originally the curators had been appointed on the usual basis of
receiving fees
in accordance with the norms of the attorneys’
profession. The order providing for them to be paid on a contingency
basis
altered this. The interesting feature of this arrangement,
which also involved Mr Mostert, is that it was not simply an
agreement
concluded under the rubric of ‘the norms of the
attorneys’ profession’, but was concluded and then
endorsed by
the court in an application brought by the FSB to alter
the original basis for remuneration.
[68]
The order in the Datakor case provided that
the curators were to be remunerated at the hourly rates agreed
between them and the
FSB, subject to a cap, for work done prior to
its being granted. This suggests that the arrangement for the
curators to be paid
fees based on a percentage of the recoveries on
behalf of the three funds was regarded as a special arrangement
requiring the consent
of the court, rather than an arrangement in
accordance with the norms of the attorneys’ profession.
[69]
In the answering affidavit the FSB
described it as a special arrangement outside the norms of the
attorneys’ profession. Dealing
with the present case Mr Tshidi
said:
‘
In
fact this type of arrangement has its origins in an order of court
which was compelled by a specific situation
which
did not allow the curators in that matter
[both
attorneys]
to be
remunerated on the usual basis according to the norms of their
profession.
’
(Emphasis added.)
Mr Tshidi added that
the order in the Datakor case had been the subject of much
controversy and criticism, but that it had not been
challenged. He
recorded that the order had subsequently been amended to cap the
remuneration at 25 per cent of the recoveries up
to R140 million and
thereafter at a rate of 16,66 per cent in anticipation of the funds’
liquidation. Even the latter more
limited fee is greater than that
conventionally earned by liquidators.
[70]
I have no difficulty with the notion that
in circumstances such as those that arose in both the Datakor case
and the present case
there might be good reasons for a curator to be
remunerated on a basis other than the norm, including a fee
calculated as a percentage
of the amount recovered on behalf of the
fund. For the reasons advanced by both the FSB and Mr Mostert that
may be the only feasible
way in which to undertake the curatorship
with an appropriately skilled curator. Nor would I regard it as
per
se
unlawful.
[27]
Thus far my colleague and I arrive at the same conclusion. But that
is not the sole issue in this case, and by the end of argument

counsel for Mr Nash had accepted that the law did not rule out
contingency fee arrangements in all circumstances. What remained

outstanding was whether an arrangement of that sort, which is the
arrangement with which we are confronted, was one providing for

periodical remuneration in accordance with the norms of the
attorneys’ profession. In other words, did it comply with the

terms of para 9 of the provisional curatorship order? According to
the evidence of the FSB the answer is ‘No’. It is
an
arrangement that can be authorised by a court in the exercise of its
powers under s 5(5)
(c)
of the FI Act, as was done in the Datakor case, but that is an
entirely different matter.
[71]
Mr Mostert’s evidence supported the
view of the FSB. In his answering affidavit in his personal capacity
and on behalf of
his firm he dealt in some detail with the
remuneration agreements. He referred particularly to an affidavit Mr
Tshidi had deposed
to in the application to authorise the fees in the
Datakor case and said that this disclosed, (as did his affidavit in
this case),
that:
‘…
the
general rules and practices concerning the remuneration of curators
and funding of curatorship expenses could not be followed.’
Such an arrangement
was legally permissible and the court had the power –
presumably in terms of s 5(5)
(c)
of
the FI Act – ‘to endorse such an arrangement’.
[72]
Dealing with the conventional arrangement,
when an attorney was appointed as curator subject to receiving
periodical remuneration
in accordance with the norms of the
attorneys’ profession, Mr Mostert explained that:
‘…
in
the ordinary course, in implementing the court order, I as curator
would have received an hourly fee at the rate of a senior
attorney
with more than 40 years experience …’
He then dealt with the
difficulties confronting the Sable Fund leading up to the conclusion
of the fee agreement and explained that
this was concluded:
‘…
given
the peculiar circumstances applicable to the Sable Fund whereby the
mechanism provided for in the original court order
could
not be implemented
as there were no monies to do so in the Fund.’ (Emphasis
added.)
[73]
The picture that emerges from these
affidavits is that an arrangement in terms of which a curator is to
be remunerated on a periodical
basis in accordance with the norms of
the attorneys’ profession is one under which the attorney is
paid a fee calculated
at an hourly rate, plus an amount to cover any
disbursements. This accords with the experience of members of this
court. The practice
among attorneys for many years, both in South
Africa and internationally, has been that the ordinary (normative)
basis for them
to charge their clients is by way of an hourly rate
for services rendered, the rate being determined by the attorney’s
standing,
expertise, experience and the like.
[74]
Mr Nash said that charging at an
hourly rate was precisely the way in which it should have been done
under para 9 of the court order.
In the case of the curatorship of
the related Cadac fund the order appointing Mr Mostert as curator
provided that he be remunerated
in accordance with the norms of the
attorneys’ profession. Documents placed before the court by Mr
Nash recorded that on
this basis Mr Mostert was being paid R2 000
per hour subject to a monthly cap of R320 000. Mr Cowan, a
senior commercial
attorney, deposed to an affidavit in which he said
that commercial attorneys in Johannesburg would have been happy to
take on the
work of a curator at their ordinary hourly rates had it
been open to them to do so.
[75]
This review of the evidence demonstrates
that remuneration of an attorney in accordance with the norms of the
attorneys’ profession
is to be understood as a fee calculated
on a time basis at an hourly rate. That is the meaning to be attached
to para 9 of Poswa
J’s order. In strict law it may be that the
attorney is only entitled to remuneration once the work is completed,
but the
more conventional practice is for regular, usually monthly,
accounts to be rendered while the work is being undertaken, as
reflected
in the provision for payment of ‘periodic
remuneration’. The evidence demonstrates that this was the
arrangement contemplated
when the order was taken for Mr Mostert’s
appointment on the basis that he would be periodically remunerated in
accordance
with the norms of the attorneys’ profession. The
arrangement in fact made was not in accordance with that requirement.
It
follows that Mr Nash was entitled to an order declaring it to be
inconsistent with para 9 of the order appointing Mr Mostert as

curator.
Relief
[76]
The high court granted an order declaring
the fee agreement to have been null and void
ab
initio
and setting it aside. The court
added that this did not affect the rights of Mr Mostert and any
co-curator or liquidator under the
MOU in relation to any other fund.
It then ordered Mr Mostert to render an account supported by vouchers
in respect of all curators’
fees charged by him in relation to
the Sable Fund and authorising any party thereafter to apply to court
on notice for an order
that Mr Mostert should repay any money
received by him as his fee under the remuneration agreement.
[77]
That order went far further than is
appropriate in the light of the narrow basis upon which I decide this
case. A declaration that
the fee agreement was not in accordance with
the provisions of para 9 of the court order appointing Mr Mostert and
should be set
aside, does not alter the position that he was properly
appointed as curator of the Sable Fund and was entitled to be
remunerated
for his services in discharging that function. All it
does is hold that by virtue of the terms of the court order he was
not entitled
to be remunerated on the basis set out in the fee
agreement. The precise basis upon which he should be remunerated
remains to be
determined. So long as the present order stands it is
open to him and the FSB to agree upon a basis for remuneration that
is in
accordance with the norms of the attorneys’ profession.
That could, by way of example, be an hourly rate, enhanced to take

account of the risks that he has run as curator in financing the
activities of the curatorship in effecting at least the original

recoveries. Such an agreement could be concluded without the need to
obtain further approval from the court, although given the

circumstances of this litigation it would be wise to do so to
forestall any challenge to the reasonableness of the fees due under

such an agreement.
[78]
If an hourly rate is not thought to be
appropriate or is, at this late stage, not able to be determined or
calculated because records
have not been kept of the hours spent on
this curatorship, a different basis for remuneration needs to be
determined between Mr
Mostert and the FSB. I wish to make it clear
that this does not exclude a fee determined as a percentage of the
amounts recovered
for the benefit of the Sable Fund, provided that
the fee so determined is reasonable, having regard to the risks
undertaken, the
work involved, the uncompensated costs to Mr Mostert
and his firm in performing the work and the like. A percentage fee
subject
to an appropriate cap or a sliding scale would be a
possibility in this regard. Such a fee arrangement would involve a
departure
from the terms of the order granted by Poswa J and would
require the sanction of the court. If Mr Mostert and the FSB are
unable
to arrive at an agreement it will be necessary for them to
approach the court for a determination of the basis upon which Mr
Mostert
must be remunerated for his services.
[79]
An order that Mr Mostert either account for
the amounts he has received thus far as fees for the Sable Fund
curatorship, or repay
any amount to the fund, is premature at this
stage. These questions will only be capable of being explored once a
new and permissible
basis for his remuneration has been determined.
Once that has been done the FSB will need to examine what Mr Mostert
has already
received and assess it against what will be due in terms
of a fresh agreement. Only then will it be possible to determine
whether
there has been an overpayment. In accordance with the need
for transparency and accountability in public affairs that process
will
need to be open to input from interested parties and especially
the former members of the Sable Fund.
[80]
The appeal is therefore unsuccessful on the
main point, but the order of the high court must be substantially
altered. Mr Nash and
Midmacor have succeeded in preserving the order
that the fee agreement was inconsistent with para 9 of the
curatorship order and
therefore unlawful. However, they do so on a
far narrower basis than in the high court and the consequential
relief that they were
granted in that court must be set aside. Mr
Mostert has therefore obtained some substantial success in this
appeal. As far as the
FSB is concerned the finding by the high court
that the fee agreement was unlawful in principle has been set aside.
But this court
has said that in principle, subject to obtaining the
approval of the court in terms of s 5(5)
(c)
of the FI Act, there is no objection to
a fee agreement for a curator involving the payment of a percentage
of the amounts recovered
in the course of the curatorship. This is
also significant success. In the circumstances I think the
appropriate order is that
each party pay his or its own costs of the
appeal. While the order of the high court went further than in my
view it should, Mr
Nash and Midmacor were compelled to bring the
proceedings in order to establish their primary point. The costs
order in the high
court should not be disturbed.
Order
[81]
The following order is made:
1
The appeal against paragraphs 1, 2, 3, 6
and 7 of the order of the high court is dismissed.
2
The appeal against paragraphs 4 and 5 of
the order of the high court succeeds and those paragraphs are set
aside.
3
Each party is to pay his or its own costs
of the appeal.
____________________________
M J D WALLIS
JUDGE OF
APPEAL
Willis JA (dissenting)
Introduction
[82]
Shorn of analysis, this appeal is concerned
with whether or not an agreement for the remuneration of a curator of
a pension fund
‘is in accordance with the norms of the
attorneys’ profession’.  Essentially, however, the
vital issue is
the validity of an agreement
(the agreement) for what are generally known as, and have been
referred to by the parties, as ‘contingency
fees’, in
circumstances where the curator is a member of that profession.
This was the basis upon which the case
was contested in the court a
quo and the issue to which it applied its mind when delivering its
judgment. The parties to the agreement
were: (a) Mr Antony Louis
Mostert, the second appellant (the curator), who is the curator of
the Sable Industries Pension Fund,
the third appellant (the pension
fund) and (b) the executive officer of the Financial Services Board,
the fifth appellant (the
FSB). The sixth appellant is the registrar
of pension funds (the registrar). The first respondent is Mr Simon
John Nash. The second
respondent is Midmacor Industries Limited
(Midmacor). The first and second respondents in this appeal were,
respectively, the first
and second applicants in the court a quo
(Tuchten J).
[83]
This judgment is regrettably lengthy. The
issues are complex and numerous. Along the way, there are a number of
side-alleys and
cul-de-sacs, the gates to which have to be closed. It
may therefore be helpful if I summarise my reasoning now. It is that
the
Promotion of Administrative Justice Act 3 of 2000 (PAJA) applies
to the contested agreement, that the respondents were out of the
180
day time limit provided for in PAJA; that there was no good reason to
extend that time period in the circumstances and that,
in any event,
to the extent that the merits were relevant, agreements for
contingency fees of the kind in question were not unlawful,
even
though unsettling questions may have arisen as to the rate of
remuneration and the quantum of the fees. One must be careful
not to
elide or conflate
the presumption of
unlawfulness when it comes to determining locus standi with the
determination of unlawfulness itself, once it
has been accepted that
the applicant has standing.
[28]
[84]
In the founding affidavit, the first
respondent alleged that:
‘
This
is an application for the setting aside of certain unlawful
agreements (“SJN9” to “SJN13” purportedly

concluded, inter alia, between the curator of the Sable Fund
(Mostert) and the FSB, and ancillary relief to enforce the provisions

of prayer 9 of the order by Poswa J (“
the
Poswa order
”)
dated 20 April 2006 (“SJN1”). The unlawfulness of the
agreements, arises, amongst others, from the non-compliance
with
paragraph “SJN1” read with section 5(5) of the Financial
Institutions (Investment of Funds) Act, 2001 (‘
the
FI Act
”) and
the Contingency Fees Act, 1997 (“
the
CFA
’).’
[85] In their heads of
argument the respondents contend that:
‘
The
ancillary issues raised by the appellants overshadow the real issue
in the matter, namely whether paragraph 6 of “SJN13”
is
valid and unlawful.’
and
‘
The
real focus should however be on (i) whether the CFA is of
application; (ii) if so, “SJN13” is illegal; (iii) if

not, whether at common law a contingency fee agreement in respect of
non-litigious work is unlawful; (iv) if so “SJN13”
is
illegal.’
These are indeed
issues that cry out for an answer because they impact not only on the
whole question of contingency fees for attorneys
but also, as will
become apparent later, on the future viability of appointing curators
for pension funds.
[86]
In the founding affidavit, the first
respondent goes on to contest the reasonableness of the fees received
by the curator but this
is adjectival to the contentions that the
agreement did not comply with what the parties have referred to as
‘the Poswa order’
inasmuch as it provides for contingency
fees, which are unlawful. In other words, the ‘unreasonableness’
point raised
by the respondents was used to bolster their argument
that the Contingency Fees Act 66 of 1997 (the CFA) applied to and
prohibited
the agreement, alternatively that contingency fees for
non-litigious work by attorneys was illegal. The respondents did not
advance
any substantive grounds or argument as to what reasonable
fees might be in the circumstances. In particular, the first and
second
respondents did not suggest a lesser percentage than the one
in question. This is hardly surprising. Any form of commission would,

in their submission, have been unlawful. The respondents made
application to the court with an ‘all-or-nothing’
approach
to the substantive issue. In the result, there was no
exploration in the court a quo as to what may have been a reasonable
alternative
fee structure for the curator. None was called for and
none was given.
[87]
Reasonableness always depends on the
facts and circumstances of each particular case.
[29]
Outside of the ‘contingency fees issue’, no court can
make a final, determinative finding as to the reasonableness
of the
fees, without a full examination of a range of facts put before the
court for consideration. No evidence was put before
the court as to
what ‘the norms of the attorneys’ profession’ might
otherwise be, in circumstances such as these.
Besides, if PAJA
applies, the test in s 6(2)
(h)
thereof, upon which the respondents have relied, is not ‘ordinary’
reasonableness. The agreement must, in the words
of the subsection,
have been ‘so unreasonable that no reasonable person’
could have
entered into it.
[88]
Moreover, the judgment of the court a
quo was wrong, over and over again, on almost every substantive point
in issue. For this court
to endorse the order of the court a quo
because it disapproves of the scale of the curator’s fees
could, in this situation,
have all manner of untoward, unforeseen and
regrettable results.
[89]
The parties have raised numerous
preliminary, procedural, ancillary or
in
limine
points. If the appellants can
straddle these and, vice versa, the respondents cannot, it would, in
my opinion, be unfortunate, to
say the least, if this court were to
strike down the agreement on the basis that the fees were
unreasonable. Even more so would
this be the case if this court
disagrees with the respondents’ substantive proposition (the
one they insist is all that matters):
that where an attorney acts as
a curator in a case such as this, contingency fees are, per se,
unlawful.
[90]
The respondents alleged that the agreement
was concluded in an exchange of correspondence and a memorandum of
understanding (MOU),
contained in annexures SJN to SJN13 to the
founding affidavit to which the first respondent had deposed. These
annexures straddle
a period of time from July 2006 to January 2011.
The respondents brought the application before the court a quo
seeking various
forms of relief, including an extension of the 180
day time period stipulated in s 7(1) of PAJA, to the extent that this
was necessary.
For reasons outlined above and which will be
dealt with more fully later in this judgment, the pivotal issue has
been the question
of whether the agreement should be declared
invalid. The application was dated 11 July 2013 but it would seem it
was lodged and
served around 15 July 2013. The court a quo found on 5
April 2017 that the agreement was indeed invalid and, in addition to
granting
a declaratory order to this effect, directed the curator to
account for all fees received in terms thereof and to repay these to

the pension fund. On the same day that it made these orders, the
court a quo granted leave to appeal to this court.
[91]
Mr Mostert is an attorney. He was cited in
his personal capacity as the first respondent in the application and,
in his capacity
as curator, as the second respondent. He is now, in
these different capacities, the first and second appellant
respectively. The
firm in which Mr Mostert has, at all material
times, been the leading player is AL Mostert & Company. It was
cited as the fourth
respondent and is now the fourth appellant.
Outline of the
relevant facts
[92]
Fifty percent of the shares in Midmacor
were owned by Trina Investments CC of which the first respondent was
the sole member.
The balance was held by the first respondent’s
family through a company known as Trishand (Pty) Ltd. The first
respondent
had been the chief executive officer of Midmacor which
had, in turn, been the principal employer contributing to the pension
fund.
Before the fund had been deregistered and placed under
curatorship, the first respondent caused funds to be transferred from
the
pension fund, first to the so-called Lifecare Fund and,
thereafter, to what is known as the Cadac Fund. The respondents
contended
that both the deregistration of the pension fund and the
second appellant’s appointment as curator were irrelevant for
the
purposes of the application. Essentially, as far as the
respondents were concerned, all that were relevant to the application
were
that they had locus standi to bring the application and that the
agreement had been unlawful.
[93]
There were serious disputes of fact in the
application.
In their answering affidavit,
the first and fourth appellants contend that the pension fund was
one of nine funds, the surplus of which had been
plundered in the 1990’s through a series of transactional
devices to which
they refer as the ‘Ghavalas Scheme’.
They named this scheme after one Peter Ghavalas, alleging him to be
‘the
architect and instigator’ thereof. The first and
fourth appellants contend that the scheme enabled the first
respondent unlawfully
to remove the surplus of the pension fund to
benefit himself and Midmacor.
[30]
Some R36 million was allegedly ‘stripped’ from this
pension fund.  ‘Unlocked’, rather than ‘stripped’

is the term preferred by those who wish to put a more neutral loss on
events. The first and fourth appellants have asserted that
this
amount is equivalent to more than R200 million at present day values.
After his appointment as curator, the first appellant,
upon
investigation, discovered that the pension fund was ‘impecunious’
as a result of the surplus stripping under the
Ghavalas Scheme.
The first appellant alleged that the surplus stripping was done by
‘laundering’ money under
the guise of a transfer of
assets from one pension fund to another. Mr Ghavalas had, at the
time, been a trustee of the Lifecare
Fund.
[94]
This alleged scheme had received the
attentions of the inspectorate of the FSB during 2003. This resulted
in the registrar successfully
making an application to court for the
pension fund to be placed under curatorship. Consequent upon this
investigation, Mr Ghavalas
was arrested and charged with various
counts, including fraud. He entered into a plea bargain with the
State, which entailed setting
out the activities and system of
operation in an affidavit some 34 pages long, which was annexed to
the answering affidavit. In
that affidavit Mr Ghavalas implicated the
first respondent as a participant in the scheme.  Indeed, Mr
Ghavalas described
him in the affidavit as having been ‘fully
aware of the true intention’ behind the scheme.
[95]
Mr Ghavalas’ affidavit is, in turn,
supported and corroborated by the affidavit of Mr Quentin Alfred
Southey who, at the relevant
time, had been employed by Midmacor.
Shorn of a wealth of detail provided in the answering affidavit and
its annexures, the scheme
involved moving investment funds of the
pension fund to Midmacor disguised as bona fide investments, which
they were not.
In particular, surplus assets held by the
Lifecare Fund were allegedly used to pay a simulated price to a
dormant subsidiary of
Midmacor, known as Pro-Base (Pty) Ltd and these
funds were then rerouted to pay dividends to Midmacor and Soundprops
178 (Pty)
Ltd, (Soundprops) a company owned and controlled by Mr
Ghavalas. According to the appellants, all of this was done with the
assistance
of the guise of a so-called ‘subscription agreement’
to which Lifecare Group Holdings Limited, Soundprops and Midmacor

were made to appear as ‘parties’.
[96]
The second and third appellants contend
that a further important aspect of the Ghavalas scheme – and
which is indicative of
its artificial nature – was the
transferring of the pensioners and members of the target fund to
another fund, so that they
did not hamper the effecting of the
scheme.
[97]
The affidavit of Mr Gavin Finch, an
independent actuary, investment and retirement fund specialist was
also highly critical of the
personal financial benefits that the
first respondent derived from the pension fund, indicating that there
was no justification
for this whatsoever.
[98]
Much of the relevant detail set out in the
answering affidavit was accepted by the court a quo. For example, it
accepted that Midmacor
had, at all relevant times, been under the
control of the first respondent. Indeed, the court a quo accepted
that the first respondent
had been able to influence the transactions
of the pension fund itself. It accepted that Midmacor had been the
pension fund’s
‘principal employer’ in terms of the
Pension Funds Act 24 of 1956 (the PFA), as that term had been used in
the PFA
at the relevant time. The court a quo specifically recorded
that the first respondent had been charged in a criminal trial
relating
to the Ghavalas scheme, that this trial had been on-going
for several years and that, at the time of the hearing, the trial was

part-heard. The charges relate, inter alia, to fraud, theft and money
laundering.
[99]
The court a quo noted that the first
respondent had denied any wrongdoing but observed that for the
purposes of the case, the allegations
in the answering affidavit must
be accepted.  I shall deal more fully with this aspect later.
The first respondent denied
that the actuarial surplus of the pension
fund had been removed through the Ghavalas scheme. He also denied
that he was the effective
owner of Midmacor.
[100]
The court a quo accepted that, as a
result of the Ghavalas scheme, the pension fund was left ‘without
any assets under its
control’ and that, in this regard and in
such situations, the FSB had been vested with certain powers in terms
of s 5 of
the Financial Institutions (Protection of Funds) Act 28 of
2001 (FIA), as it read at the relevant applicable time, before FIA’s

amendment in terms of the Financial Laws General Amendment Act 45 of
2013.  The FSB was established in terms of the Financial

Services Board Act 97 of 1990. Its members are, in terms of s 4 of
that Act, appointed by the Minister of Finance and its functions,
set
out in s 3 thereof, make it clear that it is an ‘organ of
state’, performing a ‘public power or performing
a public
function’ in terms of s 1 of PAJA, read with s 239 of the
Constitution.
[101]
The FSB brought an application before
the high court for an order placing the pension fund under
curatorship and appointing the
first appellant as curator. That
application was separate and different from the one in respect of
which the present appeal lies.
The matter came before Poswa J, who
made an order relating thereto on 20 April 2006. As mentioned
previously, this is the order
to which the court a quo and the
parties have referred as ‘the Poswa order’. For
convenience, I shall do the same.
Obviously presented to the
judge as a draft, the order provided comprehensively for the scope of
the curator’s powers and
duties as well as his authority.
For example, it authorises the curator ‘to take control of,
manage and investigate
the business and operations of’ the
pension fund, to pay ‘pensions and other benefits to those
members of the Fund
who are legitimately entitled thereto’, to
invest the funds and so on. These powers are set out over some five
pages of the
order. The curator was no mere ‘debt collector’.
[102]
Of critical importance to this case is
paragraph 9 of the Poswa order, which reads as follows:
‘
The
curator shall be entitled to periodical remuneration in accordance
with the norms of the attorneys’ profession, as agreed
with the
applicant [the fifth appellant in this appeal], such remuneration to
be paid from assets owned, administered or held on
behalf of the Fund
[the pension fund in this appeal], on a preferential basis, after
consultation with the applicant.’
[103]
The first and fourth appellant have alleged
that, following his appointment, the curator sought to recover the
assets of the pension
fund and that, because of this, the curator
would focus his attention on Midmacor and the first respondent
himself, the two main
beneficiaries of the surplus stripping
exercise.  The first and fourth appellants allege that therein
lies the real purpose
of the application. It was, in the
ipsissima
verba
used by the first respondent
himself, to strike ‘a dagger’ at ‘the heart’
of the curatorship itself.
[104]
Although the respondents alleged that
the agreement had been concluded in an exchange of correspondence
contained in correspondence
and a memorandum of understanding (MOU),
referred to as annexures SJN to SJN13 to the founding affidavit to
which the first respondent
had deposed, the first and fourth
appellants allege that the only applicable remuneration agreement,
arising from the Poswa order
is SJN13, which is a MOU, entered into
on or about 17 October 2008, relating to remuneration for the
curatorship of several funds,
including the pension fund itself. The
court a quo accepted this. Both the first and the fifth appellant
signed the MOU. So did
the FSB. For reasons that I shall develop
later, this has the consequence that the agreement constitutes
‘administrative
action’ for the purposes of PAJA.
[105]
Clause 4 of annexure SJN13 provides as
follows:
‘
From
the date of curatorship until the date of liquidation of the Funds
[the various funds to which the MOU applied, including the
pension
fund] the remuneration of the curators and attorney/s shall be in
terms of the applicable orders relating to these funds
[these orders
include the Poswa order]. This remuneration is subject to the maximum
amounts stated in 6 below.’
Clause 6 thereof reads as
follows:
‘
It
is recorded that the Sable Pension Fund [the pension fund] has
applied for the fund to be placed in liquidation. Formal notification

from the FSB with regard to the fund being so placed in liquidation
has not been received. In the circumstances, recovery of assets
made
prior to the fund being placed in liquidation shall be subject to the
curators’ remuneration of 16.66% (exclusive of
VAT) of such
assets recovered.’
Clause 6 accordingly
renders the curator’s fees contingent upon the recovery of
assets of the pension fund, being a percentage
thereof.  Clause
7 of the MOU provides specifically for the fourth appellant’s
fees as ‘attorneys fees’
to be capped according to a
formula.  As far as the substantive issue in this case is
concerned, everyone, including the court
a quo, has accepted that
clause 6 is the vitally relevant clause. This, of course, has to be
linked back to paragraph 9 of the
Poswa order, which provided that
remuneration was to be ‘in accordance with
the norms of the attorneys’ profession’.
[106]
By way of an agreement concluded between
Alexander Forbes Financial Services (Pty) Ltd and the first appellant
on 22 April 2010,
he succeeded in recovering R335 million, plus
interest, as a part recovery of funds lost under the Ghavalas scheme,
including those
of the pension fund. The successes of the curator
were also reported to Parliament by the Minister of Finance, on the
advice of
the registrar, during February 2011. The auditor for the
pension fund, Mr Liedeman of Price Waterhouse Coopers, verified in
March
2017 that the curatorship fees (excluding VAT) debited to Mr
Mostert, for the period 6 June 2006 to 30 June 2015, did not exceed

16,66 percent of the assets recovered. Although the percentage is
known, the precise amount, in rand terms, to which this has been

translated, at this stage, is unclear.
[107]
The court a quo considered itself to have
been on the horns of a dilemma as far as the disputes of fact are
concerned. On the one
hand, it considered itself bound by the
time-honoured
Plascon-Evans
rule.
[31]
On the other, it did not want to prejudice the first respondent in
his criminal trial and said that ‘this judgment should
not be
read as pronouncing on Mr Nash’s guilt or innocence’. The
manner in which the court a quo dealt with the issue
was unfortunate.
In parts of the judgment, it appears that it accepted that the first
respondent was indeed guilty of criminal
misconduct and in other
parts, either that he was not or, if he was, it would be irrelevant
to the determination of the case before
it.
[108]
I have mentioned that the parties have
raised numerous preliminary, procedural, ancillary or
in
limine
points. The case may be said to
bristle with them.  Among these points is that the respondents
were out of time in terms of
the 180 day time rule provided for in s
7(1) of PAJA and that they did not qualify for an extension in terms
of s 7(1) thereof.
Mr Loxton fairly and correctly contended not only
that if this point was successful, it would have been unnecessary to
deal with
the alleged misconduct either of the first respondent or Mr
Ghavalas, for that matter, but also that it would have been improper

to do so. For reasons that I shall advance in more detail later in
this judgment, I consider that the respondents were indeed
time-barred. As this is a minority judgment and my colleagues do not
consider the time bar to dispose of the matter, it is necessary
to
deal with the other preliminary, procedural, ancillary or
in
limine
points before I engage with the
180 day rule in PAJA.
Preliminary,
procedural, ancillary or
in
limine
points: (i) the question
of
locus standi
[109] The question of
whether the respondents were time barred in terms of the 180 day rule
in PAJA is fundamentally bound up with
the question of
locus
standi
but on that very question of
locus standi
there were other questions that were raised. The parties agree that,
in terms of s 5 of the FIA at the time, the registrar could
apply to
court for the appointment of a curator and that the court could
determine the remuneration of that person. Moreover, the
parties
agreed that, in terms of this s 5(8)(
a)
of the FIA, ‘any person’ could make application to the
court ‘on good cause shown’ to ‘set aside
or alter
any decision made, or any action taken, by either the registrar or
the curator’.  In other words, there was
no dispute that
the respondents had sufficient interest in the matter to approach the
court for relief. Questions arose, however,
and with which I shall
deal later, as to whether s 5(8)
(a)
is
merely an enabling provision or whether it, ipso facto, creates a
separate and independent basis of review, standing apart from
PAJA
and which may be considered without regard to it. Questions also
arise as to whether the application was one for a review
at all or
whether it was simply an application for a declarator interpreting an
order of court.
[110] Additionally,
the appellants argued that by reason of the applicability of the
Plascon-Evans
rule, the court a quo had to find that the respondents had brought
the application with unclean hands and accordingly, for this
reason,
did not have the necessary locus standi: they should have been
refused a hearing. In other words, the respondents should
have been
barred from a hearing because they were abusing the processes of the
court. The court a quo accepted that the first respondent
had the
motives imputed to him by the appellants but concluded that as the
issue was a complaint raised by the first respondent
that related ‘to
the remuneration of an office bearer who is exercising a public
power’ and that it was ‘in the
highest degree in the
public interest that such complaints should be ventilated and that
appropriate relief should issue if such
a complaint is well-founded’.
This ‘degree of public interest’ raises its head also
when consideration is given
to whether there should be an extension
of the 180 day time bar in PAJA.
[111] It becomes
necessary to consider the correctness of the court a quo’s
decision concerning the ‘clean hands’
point only if that
decision is not found wanting in other respects.
[112] The pension
fund has chosen to abide the decision of this court on the lawfulness
of the agreement. The pension fund contests
however, the respondents’
standing to bring the application contending, as have the other
appellants, that the respondents
have been abusing the court process
to obstruct the curator’s recovery of the pension fund’s
assets. The pension fund
has argued that the application should have
been dismissed for unreasonable delay.
Preliminary,
procedural, ancillary or
in
limine
points: (ii) the question
whether the relationship between the curator and the pension fund is
one between attorney and client
[113] The first,
fourth, fifth and sixth respondents submitted that the relationship
between an attorney and client is essentially
one of mandate and that
the relationship between the curator and the pension fund does not
fall into this category. They also argued
that the curator acts as
curator, not of the pension fund as a juristic person, but as a
curator of the pension fund’s actual
business assets.
[114] Leaving aside
the fact that the Poswa order pertinently stipulated that the
curator’s entitlement to remuneration had
to be ‘in
accordance with the norms of the attorneys’ profession’,
this question needs be decided only if it
appears that the agreement
falls foul of what attorneys are allowed to do.
Preliminary,
procedural, ancillary or
in
limine
points: (iii) The
non-joinder of various parties to the MOU
[115] Although the
respondents concede that the non-joinder of various parties who were
signatories to the MOU (SJN13, which was
sought to be struck down)
presented a difficulty, that difficulty could be overcome by a simple
expedient of not making the order
applicable to any of the parties
not before the Court.
Preliminary,
procedural, ancillary or
in
limine
points:  (iv) the
residual discretion of the court
[116]  The
second and third appellants argued that, even if the agreement was
unlawful, the court a quo should have exercised
its discretion in
terms of s 172(1)
(b)
of
the Constitution. Relying on
Chairperson,
Standing Tender Committee & others v JFE Sapela Electronics (Pty)
Ltd & others
[32]
and
Millennium Waste Management (Pty)
Ltd v Chairperson, Tender Board: Limpopo Province & others
,
[33]
they contended that factors such as the effluxion of time,
practicalities and the disruptive, unjust or inequitable effects have

been taken into account by this court not to strike down an unlawful
act. Self-evidently, this is a consideration that arises only
if the
agreement is unlawful or the application is not dismissed on some
other ground.
Preliminary,
procedural, ancillary or
in
limine
points: (v) the 180 day
time period in PAJA
[117] In terms of s 1 of
PAJA, ‘administrative action’ includes ‘any
decision’, which must be of an administrative
nature, taken by
‘an organ of state, when … exercising a public power or
performing a public function in terms of
any legislation’.
Section 6 thereof provides for judicial review of ‘administrative
action’. There is no dispute
that the respondents became aware
of the contents of annexure SJN13 by 13 January 2011 at the latest
but launched their application
on or about 15 July 2013. This was
more than two years after they had become aware of the agreement and
well after the 180 day
period provided for in s 7(1) of PAJA. The
relevant portions thereof read as follows:
‘
Any
proceedings for judicial review in terms of section 6(1) must be
instituted without unreasonable delay and not later than 180
days
after the date –
(a)
…
; or
(b)
Where no such
remedies [internal remedies] exist, on which the person concerned was
informed of the administrative action, became
aware of the action and
the reasons for it or might reasonably have been expected to have
become aware of the action and the reasons.’
This provision is qualified
by s 9 of PAJA, the relevant portions of which read as follows:
‘
(1)
The period of –
(a)
…
;
(b)
90 days or 180 days
referred to in sections 5 and 7 may be extended for a fixed period,
by
agreement between the parties or, failing such agreement, by a court
or tribunal on application by the person or administrator
concerned.
(2)
The court or tribunal may grant an application in terms of subsection
(1) where the interests of justice so require.’
[118] Mr Subel, who
appeared for the respondents, argued that by reason of the provisions
of s 5(8)
(a)
of FIA, the application was not an application for review but merely
one for the interpretation of an order of court alternatively,
even
if it was an application for review, PAJA did not apply, further
alternatively, even if PAJA did apply the ‘interests
of
justice’ required  that an extension of time  should
be given so as to allow the matter to be heard. If PAJA
applied, the
respondents relied on the following provisions thereof: s 6(2)
(f)
(i)
(the action ‘contravenes a law or is not authorised by the
empowering provision’) and s 6(2)
(h)
(the action ‘is so unreasonable
that no reasonable person could have so exercised the power or
performed the function’).
I shall deal with these points in
turn.
[119] The fact that
an act may derive or purport to derive from an order of court does
not, without further ado, necessarily deprive
it of its
administrative character and quality. An administrative act
authorised or prohibited by an order of court is not thereby
removed
from scrutiny according to the law of review. The fact that an
administrative act may have been preceded by, or follow
consequent
upon, an order of court also does not isolate it from the law of
review. In order for outsiders such as the respondents
in this case
successfully to challenge acts or actions that are derivative from a
court order they will have to demonstrate not
only
locus
standi
but also a recognised legal peg
upon which to hang their case.
[120] Every working
day in our land, innumerable administrative acts are authorised or
prohibited by orders of court. This derives
from the self-evident
fact that when a court orders or authorises an organ of State to do
or not to do something, it authorises
or forbids an administrative
act. If, for example, a court sets aside a municipal tender and
directs that the tender process be
undertaken afresh, the fact that
the second tender process derives from an order of court cannot
possibly have the consequence
that it escapes judicial scrutiny upon
review. The hard, ineluctable truth in this matter is that a court
order cannot hoist an
agreement entered into with an organ of State
outside of the purview of PAJA.
[121] The fact that
the respondents have alleged that the agreement failed to comply with
the requirement in a court order that
the curator’s
remuneration should be ‘in accordance with the norms of the
attorneys’ profession’ does not
alter the reality of the
fact that the application is one for review. As mentioned above, s
6(2)
(f)
(i)
of PAJA proscribes the contravening of a law or an action not
authorised by a particular empowering provision. It relates, more

generally, to acts outside of the law, rather than outside of a
particular court order.
[122] Section 5(8)(
a)
of
FIA provides as follows:
‘
Any
person, on good cause shown, may make application to the court to set
aside or alter any decision made, or any action taken,
by the curator
or the registrar with regard to any matter arising out of or in
connection with, the control and management of the
business of an
institution which has been placed under curatorship.’
The respondents
argued that this created a basis for review that is separate and
independent, standing apart from PAJA and s 33
of the Constitution.
Section 5(8)(
a)
of
FIA relates to
locus standi
and not to the substantive grounds upon which decisions or actions of
either the curator or the registrar may be set aside. Rarely,
if
ever, will a curator be an organ of State. Inevitably, he or she will
perform acts independently of any organ of State. Section
5(8)(
a)
of FIA permits persons to challenge
acts that do not necessarily constitute ‘administrative action’
but, once locus
standi has been established, there must be a
recognised, clear and identifiable legal ground upon which to strike
down or set aside
the act or action in question. Otherwise, I fear
that this court will have admitted a Lernaean Hydra into its bosom.
[123] It seems to me
that
Bato Star Fishing (Pty) Ltd v
Minister of Environmental affairs and Others
[34]
has remarked approvingly of the apparent legislative intention to
codify the law of review.
[35]
Professor Cora Hoexter in her
Administrative
Law in South Africa
argues that logic
therefore requires that applicants should bring their cases for
review under PAJA ‘where possible’.
[36]
There is no impossibility in applying PAJA in this case. Furthermore,
FIA was enacted after PAJA and the edition of Hoexter’s
book to
which I have referred, some eleven years after FIA. Significantly,
she does not mention even the possibility that s 5(8)(
a)
of FIA may have established a review
regime that stands apart from PAJA.  Moreover, the long title
and the preamble to PAJA
not only record that it is enacted to give
effect to the general right to fair administrative action in terms of
s 33 of the Constitution
but also seem to be comprehensive in their
scope. It also seems to me that will be confusing to the general
public and generally
undesirable to have an ever expanding range of
different regimes for review.
[124] Perhaps,
however, the answer lies in a decision in the Constitutional Court
itself,
Walele v City of Cape Town &
others
.
[37]
There, as Clive Plasket pointedly notes, Jafta AJ said: ‘All
statutes which authorise the making of administrative action
must now
be read with PAJA unless their provisions are inconsistent with
it’.
[38]
Jafta AJ’s was a minority judgment but the majority, referring
to his judgment, did not appear to disagree with this proposition.
[125] In
AllPay
Consolidated Investment Holdings (Pty) Ltd & others v Chief
Executive Officer, South African Social Security Agency &

others
[39]
the Constitutional Court unanimously  came to the conclusion
that : ‘Once a particular administrative process is prescribed

by law it is subject to the norms of procedural fairness codified by
PAJA, this , it seems to me, must apply to the agreement.’
[40]
[126] In
Minister
of Health & another NO v
New
Clicks South Africa (Pty) Ltd & others (Treatment Action Campaign
and another as Amici Curiae)
),
[41]
Chaskalson CJ held that:
‘
PAJA
is the national legislation that was passed to give effect to the
rights contained in s 33. It was clearly intended to be,
and in
substance is, a codification of these rights. It was required to
cover the field and purports to do so.’
[42]
Similar views were
expressed by Ngcobo in
Zondi v MEC for
Traditional and Local Government and Others
.
[43]
[127] I accept that
there may be exceptions to PAJA covering the field when it comes to
reviews.  In this regard it is instructive
to read the unanimous
judgment delivered by Navsa JA in
Fesi v
Ndabeni Communal Property Trust
.
[44]
In my opinion, the Constitutional Court’s perspective has been
clearly set out: PAJA must, at least as a general rule, apply
to all
reviews of administrative action. Accordingly, the exceptional cases
must be transparently evident and unambiguously required.
Section
5(8)
(a)
of
FIA is not one of them.
[128] Moreover, in
State Information Technology Agency Soc
Ltd v Gijima Holdings (Pty) Ltd
[45]
this court held that a decision by a State entity to award a contract
for services constitutes administrative action for the purposes
of
PAJA.
[46]
Subsequently, the Constitutional court held that an organ of State,
when reviewing its own administrative decision, may not rely
on PAJA
but must bring a ‘legality review’ in terms of s 1
(c)
,
read with s 33 of the Constitution.
[47]
This did not alter this court’s broad observation that
contractual awards by State entities constitute administrative
action
for the purposes of PAJA. Indeed, the vast administrative machinery
of the State functions largely through its various organs
entering
into contracts with private persons. That is how service delivery
takes place. Therein lies both the strength and weakness
of State
administration in any country.  All over the world, in our
scrutiny thereof, we have to sail through the Scylla of
corruption
and maladministration and the Charybdis of dysfunctional tardiness.
Against this background, it seems to me that simply
has to have been
the intention both of s 33 of the Constitution and indeed PAJA itself
that the review of  all agreements
entered into by organs of
State are determined within a single cohesive legal framework, rather
than in some piecemeal fashion.
That framework is PAJA.
[129] Apart from
these general observations, it seems to me that there is a still more
specific reason why s 5(8)(
a)
of
FIA does not establish a different regime for reviews that is
separate from PAJA.  It is plainly an enabling provision.
It
confers
locus standi
rather than creating a separate system for review. This is apparent
from a plain reading of the subsection. The point is underlined
by
the fact that the phrase ‘on good cause shown’ is
positioned where it is and not at the end of the subsection. The

‘good cause shown’ relates to the reason to be heard, not
the substantive merits of the application itself. In summary,
the
subsection does not give any person having an interest in the matter,
willy-nilly or holus-bolus to apply for the setting aside
of a
decision of the curator or registrar on any ground and at any time
that he or she may choose.
[130] Referring to s
1, the definitions section of PAJA and the
Shorter
Oxford English Dictionary
, the court a
quo held that PAJA applies not to contracts (such as the one in
question) but to decisions. This, it seems to me,
is clearly wrong.
[131] In
Opposition
to Urban Tolling Alliance & others v The South African National
Roads Agency Ltd & other
,
[48]
(OUTA), Brand JA, delivering the unanimous judgment of this court
affirmed the general principle that, in review applications,
a court
should deal with the delay rule before considering the merits.
[49]
[132]
In OUTA Brand JA went on to say that:
‘
The
delay rule gives expression to the fact that there are circumstances
in which it is contrary to the public interest to attempt
to undo
history. The clock cannot be turned back to when the toll roads were
declared, and I think it would be contrary to the
interests of
justice to attempt to do so.’
[50]
Moreover, this court
has generally disapproved of unreasonable delay in initiating
proceedings.
[51]
Delays not only clog up the administration of the State but also have
the consequence that prudent and competent persons of business
are
wary of entering into contracts with organs of State.
In
my opinion, it would also not be in the interests of justice to
attempt to undo history in this case. Ordinarily, that would
be
dispositive of the matter. Nevertheless, apart from the fact that
this is a minority judgment, there are two other reasons why
I
consider it appropriate to touch upon the merits. The first is, as
mentioned previously, the trenchant finding by the court a
quo that
it is in the ‘highest degree in the public interest’ that
the matter should be considered. The second is that
responsible
persons and bodies such as the registrar and the FSB, who are
required to act in the public interest, consider it imperative
that
there be clarity on the question of contingency fees in circumstances
such as these.
[133]
Additionally, I do not understand Brand JA to have said that the
merits in an application for condonation should never be
considered
in review applications, but merely that it is generally undesirable
to do so. Ordinarily, when it comes to the sound
administration of
the State, it will not be in the interests of justice to be indulgent
towards applicants when it comes to delays
in their bringing
applications for review. There are other vital interests of society,
which come into play as well. Delays render
the administration of the
State apparatus sclerotic, thereby hampering the delivery of services
in society. There may, however,
be exceptions to the general rule
that the merits should be considered separately from the explanation
for the delay. After all,
in a recent matter dealing with
condonation,
Mulaudzi
v Old Mutual Insurance Company (South Africa) Limited and Others,
National Director Public Prosecutions and Another v Mulaudzi
[52]
Ponnan JA, delivering the unanimous judgment of this court, albeit in
a different context, said that in applications for condonation
the
substantive merits of the case may be relevant, but this was not
necessarily the case and neither are they decisive.
[53]
Moreover, the merits may conceivably be so closely
bound up with the reasons for the delay that it is neither sensible
nor practical
to consider them separately.
[134] I am fortified
in my opinion that Brand JA’s setting out of the process to be
adopted was not meant to be understood
in absolute terms by reference
to
South African Roads Agency Limited v
Cape Town City,
[54]
in which Navsa JA, delivering the unanimous judgment of this court
said that it ‘cannot be read to signal a clinical excision
of
the merits of the impugned decision’.
[55]
This qualification by Navsa JA has been approved by this court more
recently, when Swain JA delivered the unanimous judgment
in
Asla
Construction (Pty) Ltd v Buffalo City Metropolitan Municipality
[56]
With some hesitation, reservations and reluctance, I turn now to
consider the merits of the case.
The merits of the
case: the lawfulness of the agreement
[135]
I have previously indicated that I consider it to be an error of law
to elide or conflate
the
presumption of unlawfulness when it comes to determining locus standi
with the determination of unlawfulness itself, once it
has been
accepted that the applicant has standing. Leaving aside the
appellants’ ‘clean hands’ point, I accept,
without
any difficulty, that the respondents have locus standi to bring the
application. As Cameron J said in
Giant
Concerts CC v Rinaldo Investments (Pty) Ltd and Others
,
[57]
it is a matter of logic.
[58]
It is not a ‘smoke and mirrors’ exercise. Botha JA,
delivering the unanimous judgment of this court in
Ritz
Hotel Ltd v Charles of the Ritz Ltd and Anothe
r,
[59]
made it plain that the presumption for the purposes of determining
locus standi has nothing to do with the substantive determination
of
the contested issues in the case.
[60]
[136]
It
is
apparent from the judgment of the court a quo, as well as the heads
of argument of the parties that they were all in agreement
that the
real issue in this case, overshadowing all else, is whether annexure
SJN13 is lawful and therefore valid. Put differently,
the fundamental
point in contention has been whether the agreement offended against
public policy, constituting an unlawful contingency
agreement. The
first and fourth appellants contend that, in order to reach that
conclusion, the court a quo needed to come to two
further conclusions
fundamental to the appeal and did, in fact, do so. The first was that
the common law prohibition on contingency
agreements was a widely
recognised ‘norm’ or rule of practice in the attorneys’
profession. The second was that
that prohibition extended to fees
charged for non-litigious work.
[137]
The first and fourth appellants contend that the court a quo took a
step in the right direction when it found that ‘the
norms of
the attorneys’ profession’ meant that the remuneration
regime should be constrained by the ‘well-known
ethical norms
applicable to legal practitioners’. They argue that this
interpretation would have meant nothing more than
that the Poswa
order was designed to ensure that the remuneration of the curator was
reasonable, appropriate and did not venture
in the sphere of
overreaching. The first and fourth appellants point out, however,
that the case made out by the respondents was
not that the curator’s
fee was unreasonable but that the agreement was invalid for failing
to comply with the Poswa order
which, in turn, required compliance
with the Contingency Fees Act 66 of 1997 (the CFA).
[138]
Related to the point mentioned earlier concerning the nature of the
relationship between a curator and a pension fund, the
first and
fourth appellants contend that the CFA does not apply to remuneration
of curators, even if they happen to also be qualified
as legal
practitioners. A curator need not necessarily be an attorney (or any
other kind of legal practitioner) for the purposes
of the CFA. The
court a quo seemed to accept that the work of a curator is different
from that done by an attorney, whether in
litigation or outside of
it. Accordingly, the first and fourth appellants contend that the
norm (if such it is) prohibiting contingency
fees as between attorney
and client is irrelevant to the lawfulness of the agreement.
[139] The first and fourth
appellants accept that, of course, an attorney is not entitled to
overreach his client in any circumstances
(whether litigious or not),
but  contend that this consideration goes to the reasonableness
of the attorney’s fee, not
the manner in which the fee is
determined. The first and fourth appellants have submitted that the
only sensible meaning to be
given to the phrase ‘in accordance
with the norms of the attorneys’ profession’ in the Poswa
order is that it
sought to ensure that the curator’s fees were
reasonable, appropriate and not excessive. That, so their argument
went, did
not imply that it prohibited the curator and the FSB from
determining the appropriate fee with reference to a percentage of the

assets recovered.  The first and fourth appellants argue that as
there were no other funds from which the fee could be paid,
the fee
could only be determined with reference to the assets recovered.
Correspondingly, in their submission, it was appropriate
and
necessary in the circumstances to set the curator’s fee as a
percentage of the amounts recovered.
[140] The Law
Commission considered the potentially negative consequences of a
contingency fee agreement in its working paper that
resulted in the
Contingency Fees Act, but
nonetheless supported the promulgation of
the Act.
[61]
The CFA followed the pattern adopted in England in 1990. The
government of that country had published a Green Paper on contingency

fees in 1989. There has been a ‘sea change’, a shift of
massive proportions, in attitudes. In this regard it is instructive

to read
Price Waterhouse Coopers v
National Potato Co-operative,
[62]
which deals comprehensively with the history of contingency fees. The
appellants have argued that the report of the Law Commission
and the
CFA represent a clear recognition in the Republic of South Africa
that the abuses associated with champerty are not the
invariable
result of all varieties of contingency fee agreements.
[141]  In an old
case,
Incorporated Law Society of Natal
v JV and FM Hiller
,
[63]
it was recognised that fees for an attorney in non-litigious work
could be charged on a percentage or commission basis.
[64]
Our common law has never set its face against the payment of
remuneration or, indeed other kinds of payment being contingent upon

the occurrence of an uncertain future event. Were this not the case,
most contracts subject to suspensive conditions would be
anathema.
[65]
Payments that depend upon the successful outcome of particular
endeavours are commonly called ‘commissions’. Estate

agents’ commission provide a ready example. Our law has,
however, historically taken an adverse view of what have been termed

‘champertous’ agreements.
[66]
These were agreements in terms of which a person not party to
litigation provided finance to enable a person who was such party
to
litigate, in return for a share of the proceeds of the action if that
party was successful, or any agreement whereby a party
was said to
‘traffic’, gamble or speculate in litigation.
[67]
This was, in any event, not an absolute rule: bona fide assistance in
the pursuit of a claim that was believed to be just and where
the
return for such assistance was not extortionate or unconscionable
could pass muster.
[68]
[142] The common law,
both in the Netherlands and England, was influenced by the
Reformation.
[69]
The theology of the Reformation was strongly opposed to gambling.
[70]
There were two main reasons for this: (a) the income from gambling
was ‘unearned’ and (b) there was much empirical
evidence
that gambling could lead to financial ruin, casting whole families
into poverty.
[71]
Indeed, gambling was associated with ‘drinking in taverns,
whoring and singing obscene ballads’.
[72]
In the face of attitudes such as this, it is hardly surprising that,
for several hundred years, lawyers were expected to refrain
from
anything that smacked of gambling.
[143] As has become
apparent, the attitude of both the courts and legislatures, not only
in South Africa but also in other parts
of the world has, over time,
become more relaxed to the payment of fees in litigation being
dependent upon success therein.
[73]
This resulted in the enactment of the CFA. The CFA permits the
payment of contingency fees in relation to ‘any proceedings’,

which are defined as:
‘
any
proceedings in or before any court of law or any tribunal or
functionary having the powers of a court of law, or having the
power
to issue, grant or recommend the issuing of any licence, permit or
other authorisation for the performance of any act or
the carrying on
of any business or other activity, and includes any professional
services rendered by the legal practitioner concerned
and any
arbitration proceedings, but excludes any criminal proceedings or any
proceedings in respect of any family law matter.’
[144] The relaxation
contained in the CFA relates to litigious matters. The court a quo,
however, found that ‘there can be
no justification for allowing
legal practitioners to conclude contingency fee agreements in
relation to non-litigious work’
[74]
and said that:
‘
I
find that contingency fee agreements in relation to non-litigious
work are against public policy for broadly the same reasons
that such
agreements are contrary to public policy in relation to non-litigious
work.’
[75]
The court concluded
that the remuneration agreement in question was ‘against public
policy because it amounts to an unlawful
contingency fee agreement’
and that under s 171(1)
(a)
of the Constitution, it ‘must declare the agreement to be
unlawful and invalid’.
[145] It does not
necessarily follow that, because the CFA applies to litigious
matters, a residual prohibition against contingency
fees for legal
practitioners in non-litigious matters applies. The converse may be
true: The CFA was enacted to apply to litigious
matters because the
law already permitted it in non-litigious matters subject, of course,
to reasonable limitations. Our law has
never been impervious to the
need for contracts to take into account the vicissitudes of life, its
contingencies. If this were
otherwise, not only would contracts
subject to suspensive conditions not generally have been legally
possible but also, more specifically,
contracts of insurance, which
have been recognised since ancient times.
[76]
Lawyers, especially those who do not practise as advocates, do not
confine their professional work to assisting others in litigation:

they do much else besides. The mischief at which the common law
concerning ‘contingency fees’ was directed was champerty,

in particular and gambling or speculating in litigation, in
general.
[77]
This is more especially the case where practices of such a kind may
prejudice the weak and the vulnerable.
[78]
There was no blanket prohibition on remuneration being dependent on
the outcome of an uncertain future event. To the extent that
certain
other cases decided in the high court may have suggested that any
agreement between an attorney and client that made fees
payable on
the happening of an uncertain future event were ‘unlawful
contingency fees’, these cases were wrongly decided.
[79]
[146] Legal
practitioners, like justice itself, are not cloistered in their
virtue. There is no good reason why they should not,
in appropriate
circumstances unrelated to litigation, be able to earn remuneration,
which is contingent upon the happening of an
uncertain future event
(a ‘contingency fee’). In this regard, they will be on
the same footing as so many of their
fellow citizens, who go about
their business making an honest living. There are powerful
restraining factors operating against
the mischievous abuse of
contingency fees by legal practitioners. In the first instance, there
is the constraint of a necessary
consensus
ad idem
, an agreement. Secondly, the
courts will strike down any unconscionable agreement on the basis
that is contrary to public policy.
[80]
Thirdly, the profession itself may adopt guidelines and even
regulation on the question. Above all, sight must not be forgotten
of
the fact that, as Cameron JA said in
Brisley
v Drotsky,
[81]
‘shorn of its obscene excesses’, contractual autonomy is
part of our core constitutional values of freedom and dignity.
[82]
[147] As the judgment
of the court a quo appears to recognise, the pension fund had, at the
relevant time, been stripped of all
its assets. Without an agreement
of the kind in question, it would not, realistically, have been
possible for the fund to recover
any of its previously held assets,
never mind pay fees in the ordinary course for this purpose. Against
the background of facts
in this case, there was nothing wrong in
structuring an agreement on the basis that the curator would be
remunerated on the basis
of a percentage of assets successfully
recovered. Opinions may vary on how generous the actual percentage
may have been but it
was not necessarily unconscionably high in all
the circumstances of the matter.
[148] Mention has
been made earlier of the fact that the task of the curator was no
bare debt collection exercise. Some kind of
comparative analysis
between the norms of the attorneys’ profession concerning debt
collection and the inputs, not only intellectual
but also in terms of
time and money spent, when it comes to debt-collecting and
curatorship respectively is likely to be necessary
before a final
view can be formed in the matter. No such evidence was put before the
court. The onus was on the respondents. No
allegation of collusion
between the FSB and the curator was made. As a responsible organ of
State, the FSB must be presumed to
have intended to act in the public
interest.  Ex facie the papers before the court, it cannot be
concluded, in the words of
s 6(2)
(h)
of PAJA, that the agreement was so unreasonable that no reasonable
person could have entered into it. The test is a high one. In
Bato
Star
it was held that a court ‘should
be careful not to attribute to itself superior wisdom in relation to
matters entrusted to
other branches of government’.
[83]
In my opinion, a similar philosophy must apply in respect of this
court’s gaze upon the agreement.
[149] Accordingly,
there is no reason to grant condonation or, put differently, to grant
an extension to the 180 day time period
within which the respondents
should have mounted their challenge to the agreement.  In the
result, in my opinion, the case
of the respondents should fail and
for reasons that are not only incontestably substantive but also far
deeper than merely being
out of time – if such a point can be
‘mere’.
Conclusion
[150]
In
my opinion, the reasoning and conclusions of the court a quo were,
accordingly, wrong. Nothing in this judgment should be construed
as
giving an imprimatur to the scale of fees of the curator. The
respondents should  have failed because they approached the

court out of time and on a basis that was fatally flawed.
Accordingly, in my opinion, the appeal should have been upheld, with

costs, including the costs of two counsel. The orders of the  court
a quo should have been  set aside and  replaced
with an
order dismissing the application with costs, including the costs of
two counsel.
______________________
N P WILLIS
Judge
of Appeal
Appearances
For first and fourth appellants:  C D A Loxton SC (with him A
Milovanovic)
Instructed by:
Assheton-Smith Incorporated, Cape Town
Lovius Block, Bloemfontein.
For second and
third appellants: J H Dreyer SC (with him J Bleazard)
Instructed by:
Polson Attorneys, Johannesburg
Rosendorff Reitz Barry, Bloemfontein.
For fifth and sixth
appellants: Q Pelser SC (with him E L Theron SC)
Instructed by:
Rooth & Wessels Inc, Pretoria
Phatsoane Henney Attorneys, Bloemfontein
For respondents:
A Subel SC (with him  W J De Bruyn)
Instructed by:
Cowan - Harper Attorneys, Johannesburg
Pieter Skein Attorneys, Bloemfontein.
[1]
Then Mr Dube Tshidi. The Executive Officer is by
virtue of his office also the Registrar of Pension Funds, the sixth
appellant,
although the role is usually filled by one of his
deputies. For the purposes of this judgment they are referred to
collectively
as the FSB.
[2]
Tek Corporation Provident Fund and Others v Lorentz
[1999]
ZASCA 54
;
1999 (4) SA 884
(SCA) paras 15-17.
[3]
Alexander Pope’s ‘Portrait of
Addison’ in his Satires,
Epistle
to Doctor Arbuthnot
.
[4]
Giant Concerts CC v Rinaldo Investments (Pty)
Ltd and Others
[2012] ZACC 28
;
2013
(3) BCLR 251
(CC) para 36.
[5]
Ibid
paras 32
and 33.
[6]
Ibid
para 32.
[7]
United Watch and Diamond Co (Pty) Ltd and
Others v Disa Hotels Ltd and Another
1972
(4) SA 409
(C) at 415A-416C.
[8]
L. F. Boshoff Investments (Pty) Ltd v Cape
Town Municipality; Cape Town Municipality v L. F. Boshoff
Investments (Pty) Ltd
1969 (2) SA 256
(C) at 275B-D (
Boshoff Investments
).
[9]
Beinash and Another v Ernst and Young and
Others
[1998] ZACC 19
;
1999 (2) SA 116
(CC) para 17.
[10]
Beinash v Wixley
[1997]
ZASCA 32
;
1997 (3) SA 721
(SCA) at 734F-H.
[11]
Boshoff Investments
at
275B-C.
[12]
The
Promotion of Administrative Justice Act 3 of
2000
.
[13]
Opposition to Urban Tolling Alliance and
Others v The South African National Roads Agency Ltd and Others
[2013] ZASCA 148
;
[2013] 4 All SA 639
(SCA) paras 22, 41 and 43.
[14]
Khumalo and Another v MEC for Education,
KwaZulu-Natal
[2013] ZACC 49
;
2014 (5)
SA 579
(CC) paras 45-48;
State
Information Technology Agency SOC Ltd v Gijima Holding (Pty) Ltd
[2017] ZACC 40
,
2018 (2) SA 23
(CC)
paras 43 to 50.
[15]
State Information Technology Agency SOC Ltd v
Gijima Holding (Pty) Ltd
[2016] ZASCA
143
;
2017 (2) SA 63
(SCA) para 16. This proposition was neither
questioned nor endorsed in the subsequent appeal to the
Constitutional Court and
its wide terms may require some
qualification in the light, for example, of decisions of that court
holding that the relationship
between organs of state and their
employees does not generally constitute administrative action.
[16]
These are essential requirements for action to
constitute administrative action in terms of PAJA. See
Minister
of Defence and Military Veterans v Motau and Others
[2014]
ZACC 18
;
2014 (5) SA 69
(CC) (
Motau
)
para 33.
[17]
Department of Transport and Others v Tasima
(Pty) Ltd
[2016] ZACC 39
;
2017 (2) SA
622
(CC) paras 177-183.
[18]
Such an order was sought by Mr Nash and Midmacor
‘in so far as it may be necessary’.
[19]
Approximately R395 million of the recoveries
has been allocated to three funds where Mr Mostert is a joint
curator with a
Mr Wandrag and the curators’ fees in respect of
these three funds, amounting to nearly R90 million were calculated
at a
rate of 25% of recoveries in accordance with a court order
relating to those funds alone. This included the legal fees due to
the two curators’ law firms for legal work.
[20]
Oudekraal Estates (Pty) Ltd v City of Cape
Town and Others
[2009] ZASCA 85
;
2010
(1) SA 333
(SCA) especially paras 81-82;
South
African National Roads Agency v City of Cape Town
[2016]
ZASCA 122
;
2017 (1) SA 468
(SCA) paras 107 and 108.
[21]
Price Waterhouse Coopers Inc and Others v
National Potato Co-operative Ltd
[2004]
ZASCA 64
;
2004 (6) SA 66
(SCA);
South
African Association of Personal Injury Lawyers v Minister of Justice
and Constitutional Development
[2013]
ZAGPPHC 34;
2013 (2) SA 583
(GSJ) and
Ronald
Bobroff and Partners Inc v De La Guerre
[2014]
ZACC 2; 2014 (3) SA 134 (CC).
[22]
Ronald Bobroff and Partners Inc v De La Guerre and Another
[2014] ZACC 2
;
2014 (3) SA 134
(CC);
Fluxmans Inc v Levenson
2007 (2) SA 520
(SCA). See also
De La Guerre v Ronald Bobroff and
Partners Inc and Others
[2013] ZAGPPHC 33 para 13.
[23]
The papers reveal that he was able to conclude a
settlement without admission of liability with one of the pension
fund administrators
involved in the transactions arranged by Mr
Ghavalas in an amount of R325 million.
[24]
Firestone South Africa (Pty) ltd v
Gentiruco
A.G.
1977 (4) SA 298
(A) at 304D-H.
[25]
CUSA v Tao Ying Metal Industries and Others
[2008] ZACC 15
;
2009 (2) SA 204
(CC)
para 68;
Fischer and Another v
Ramahlele and Another
[2014] ZASCA 88
;
2014 (4) SA 614
(SCA) paras 13 and 14.
[26]
Paddock Motors (Pty) Ltd v Igesund
1976
(3) SA 16
(A) at 23D-G is the leading authority.
[27]
Incorporated Law Society of Natal v J.V. and F.M. Hiller
(1913) 34 NPD 237
at 244 provides an example of a fee being charged
on an unconventional basis, but it does not mean that such a fee is
one in
accordance with the norms of the attorneys’ profession.
It merely means that the conclusion of such an agreement in relation

to fees is not
per se
unprofessional conduct by the attorney.
[28]
See
Giant Concerts CC v Rinaldo Investments (Pty) Ltd and
Others
[2012] ZACC 28
; 2013 (3) SA BCLR 251 (CC) paras 32, 33
and 36 concerning the presumption when it comes to standing.
[29]
See for example,
Bato Star Fishing (Pty)
Ltd v Minister of Environmental Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) para 45 and the authorities
therein cited.
[30]
That the first respondent was implicated in the
Ghavalas scheme was a finding made by Nicholls J, in another matter,
Executive Officer of the Financial
Services Board v Cadac Pension Fund
[2013] ZAGPJHC 401; 2014 JDR 2721 (GJ).
[31]
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C. In
National Director of Public Prosecutions v
Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA)
this court said:
'Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause
facts. Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine
probabilities. It
is well established under the
Plascon-Evans
rule
that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the
facts averred
in the applicant's (Mr Zuma’s) affidavits, which have been
admitted by the respondent (the NDPP), together
with the facts
alleged by the latter, justify such order. It may be different if
the respondent’s version
consists
of bald or uncreditworthy denials, raises fictitious disputes of
fact, is palpably implausible, far-fetched or so clearly
untenable
that the court is justified in rejecting them merely on the papers.'
(Para
26.)
The
Plascon-Evans
rule has been emphatically endorsed by the Constitutional Court. See
for example
President of the Republic of
South Africa and Others v M and G Media Ltd
[2011] ZACC 32
;
2012 (2) SA 50
(CC) para 34.
[32]
Chairperson, Standing Tender Committee and
Others v JFE Sapela Electronics (Pty) Ltd and Others
[2005] ZASCA 90
;
2008 (2) SA 638
(SCA) paras 20,
28-29.
[33]
Millennium Waste Management (Pty) Ltd v
Chairperson, Tender Board: Limpopo Province and Others
[2007] ZASCA 165
;
2008 (2) SA 481
(SCA) paras
25-30.
[34]
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Others
[2004] ZACC 15
;
2004 (4)
SA 490
(CC) paras 22-25
.
[35]
C Hoexter , 2012,
Administrative Law in South Africa
,
(2 ed, 20110) p118.
[36]
Ibid.
[37]
Walele v City of Cape Town and Others
2008 (6) SA 129 (CC).
[38]
Para 51. Clive Plasket  ‘Administrative Law’ 2008
Annual Survey of South African Law
24 at p35.
[39]
AllPay Consolidated Investment Holdings (Pty)
Ltd and Others v Chief Executive Officer, South African Social
Security Agency and
Others
[2013] ZACC 42
;
2014 (1) SA
604
(CC). See also
Aurecon South Africa (Pty) Ltd v Cape
Town Cit
y
[2015] ZASCA 209
;
2016 (2) SA 199
(SCA) para 43.
[40]
Para 40.
[41]
Minister of Health and Another NO v
New
Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign
and Another as Amici Curiae)
[2005] ZACC 14; 2006 (2) SA 311
(CC).
[42]
Para 95. See also C Plasket ‘Post -1994 Administrative Law in
South Africa: The Constitution, The
Promotion of Administrative
Justice Act 3 of 2000
and the Common Law’ (2007) 21
Speculum
Juris
25.
[43]
Zondi v MEC for Traditional and Local
Government and Others
[2004] ZACC 19
;
2005 (3) SA
589
(CC) paras 101 and 102. See also Plasket
supra
.
[44]
Fesi v Ndabeni
Communal Property Trust
[2018]
ZASCA 33
(27 March 2018) para 54. See also
Nel
& another NNO v The Master (ABSA Bank Ltd & others
intervening)
2005 (1) SA 276
(SCA) paras 22-23.
[45]
State
Information Technology Agency Soc Ltd v Gijima Holdings (Pty) Ltd
[2016] ZASCA 143
;
2017
(2) SA 63
(SCA)
.
[46]
Para 16.
[47]
State Information Technology Agency Soc Ltd v
Gijima Holdings (Pty) Ltd
supra
.
[48]
Opposition to Urban Tolling Alliance and
Others v The South African National Roads Agency Ltd and Others
[2013] ZASCA 148; [2013] 4 All SA 639
(SCA).
[49]
Paras 22 and 43.
[50]
Para 41.
[51]
See for example
Associated
Industries Pension Fund and Others v Van Zyl and Others
2005 (2) SA 302
(SCA) para 46. See also
Khumalo
and Another v MEC for Education, Kwazulu-Natal
[2013] ZACC 49
;
2014 (5) SA 579
(CC) para 44.
[52]
Mulaudzi
v Old Mutual Insurance Company (South Africa) Limited and Others,
National Director Public Prosecutions and Another v
Mulaudzi
[2017] ZASCA 88; 2017 (6) SA 90 (SCA).
[53]
Para 34.
[54]
South African Roads Agency Limited v Cape Town
City
[2016] ZASCA 122; 2017 (1) SA 468 (SCA).
[55]
Para 81.
[56]
Asla Construction (Pty) Ltd v Buffalo City
Metropolitan Municipality
[2017] ZASCA 23
(24 March
2017).
[57]
See
Giant Concerts CC v Rinaldo Investments (Pty) Ltd and
Others
supra
paras 32, 33 and 36 concerning the
presumption when it comes to standing.
[58]
Para 32. See also
Jacobs en ’n ander v Waks en andere
[1991] ZASCA 152
;
1992 (1) SA 521
(A) at 536A;
Ritz Hotel Ltd v Charles of
the Ritz Ltd and Another
1988 (3) SA 290
(A) at 307H. As Botha
JA, delivering the unanimous judgment of the court said in
Jacobs
at 536B: ‘Die veronderstelde nietigheid van die besluit hou
nie verband met die applikante se bewerings oor hoe hulle
besigheidsbelange daardeur getref is nie.’
[59]
Ritz Hotel Ltd v Charles of the Ritz Ltd and Another
(supra).
[60]
At 536B.
[61]
Law Society Working Paper 36, Project 93
‘
Speculative and Contingency Fees’
November 1996.
[62]
Price Waterhouse Coopers Inc v National Potato
Co-operative Ltd
[2
004
]
ZASCA 64;
2004
(6) SA 66
(SCA)
paras
36-43.
[63]
Incorporated Law Society
of Natal v JV and FM Hiller
1913 NPD 237.
[64]
At 244.
[65]
For a good summary of what an agreement subject to a
suspensive condition is in our law, see
Command Protection
Services (Gauteng) (Pty) Ltd t/a Maxi Security v South African Post
Office Lt
d
[2012] ZASCA 160
;
2013 (2) SA 133
(SCA) para 10 and
the other authorities therein cited.
[66]
See, for example,
Price Waterhouse Coopers Inc and Others v
National Potato Co-operative Ltd
supra
para 26 and the
authorities therein cited. See also
Fluxmans Inc v Levenson
[2016] ZASCA 183
;
2017 (2) SA 520
(SCA) para 41.
[67]
Ibid.
[68]
Price Waterhouse Coopers Inc and Others v National Potato
Co-operative Ltd
(supra) paras 27 and 28.
[69]
See for example
Becker S, Pfaff S and Rubin J
‘Causes and Consequences of the Protestant Reformation’
(2015) 1105
Warwick Economic Research
Paper Series
ISSN 2059 4283 at 29 and
37.
[70]
See for example
Berman H ‘The
Spiritualization of Secular Law: The Impact of the Lutheran
Reformation’ (1999) 14
Journal of
Law and Religion
at 332.
[71]
See for example
Binde P ‘Gambling and
Religion’ (2007) 20
Journal of
Gambling Issues
at 153-156
http://www.camh.net/egambling/issue20/pdfs/03binde.pdf
(Accessed 5 May 2018).
[72]
See for example
Binde P ‘Gambling and
Religion’ (2007) 20
Journal of
Gambling Issues
at 156
http://www.camh.net/egambling/issue20/pdfs/03binde.pdf
(Accessed 5 May 2018).
[73]
See, once again, for example,
Price Waterhouse Coopers Inc and
Others v National Potato Co-operative Ltd
supra
para
23-52 and the authorities therein cited. See also
Fluxmans Inc v
Levenson
2017 (2) SA 520
(SCA) para 41.
[74]
Para 80 of the judgment.
[75]
Ibid.
[76]
J Voet
Commentarius
Ad Pandectas
(1723) 1.5.4. (Translated
by Sir Percival Gane in
The Selective
Voet being the Commentary on the Pandects
(1955). See also Wille’s
Principles
of South African Law
, 9
th
ed, p786.
[77]
See Voet,
supra
;
Command Protection Services (Gauteng)
(Pty) Ltd t/a Maxi Security v SA Post Office Lt
d,
supra,
paras 23 to 52;
Yannakou v Apollo Club
1974 (1) SA 614
(A) at
628H-629H and
Nichol v Burger
1990 (1) SA 231
(C) at
231J-238D.
[78]
Ibid
.
[79]
See  for example
SA Association of Personal Injury Lawyers v
Minister of Justice and Constitutional Development (Road Accident
Fund, Intervening
Party)
[2013] ZAGPPHC 34;
2013 (2) SA 583)
(GSJ) paras 9 and 10. But see, by way of contrast,
Headleigh v
Private Hospital (Pty) Ltd t/a Rand Clinic v Soller and Manning
Attorneys and Others
2001 (4) SA 360
(W) at 371C-H. See, in
particular,
Command Protection Services (Gauteng) (Pty) Ltd t/a
Maxi Security v SA Post Office Lt
d,
supra
, in which the
importance of freedom of contract and the generally careful
restraint of the courts to render contracts unenforceable
on the
grounds of public policy were emphasised in paras 23 and 44.
[80]
See for example
Safin (Pty) Ltd v Beukes
1989 (1) SA 1
(A) at
7I and 9A-C;
Botha (now Griessel) and Another v Finanscredit
(Pty) Ltd
1989 (3) SA 773
(A) at 782J-783B;
Brisley v Drotsky
[2002] ZASCA 35
;
2002 (4) SA 1
(SCA) para 94;
Healthcare Bpk v
Strydom
2002 (6) SA 21
(SCA) para 8;
Price Waterhouse Coopers
Inc and Others v National Potato Co-operative Lt, supra
,
para 23.
[81]
Brisley v Drotsky,
supra
.
[82]
Para 94. See also
Command Protection Services (Gauteng) (Pty) Ltd
t/a Maxi Security v SA Post Office Ltd,
supra,
para 44.
[83]
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Others
,
supra
,  para 48. See also
Koyabe and Others v
Minister of Home Affairs and Others (Lawyers for Human Rights as
Amicus Curiae)
[2009] ZACC 23
;
2010 (4) SA 327
(CC) para 36.