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

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

The majority held that the FSCA had recognised and discharged any duty to investigate alleged irregularities in the pension funds cancellations project by commissioning multiple independent investigations (O'Regan, KPMG, Mort). The applicant's remedy, if dissatisfied with the registrar's decisions, lay in review proceedings under PAJA, not in a mandamus compelling further investigation. The Court found that the applicant had standing to bring the matter in the public interest, but her case for further investigation was not made out on the facts or in her founding affidavit. The Minister was not required to intervene, as no culpable remissness was established. The joinder of the third and...

Citation
[2018] ZACC 31
Parties
Applicant: Rosemary Thérésé Hunter; Respondent: Financial Sector Conduct Authority; Respondent: Abel Moffat Sithole N.O.; Respondent: Dube Phineas Tshidi N.O.; Respondent: Jurgen Arnold Boyd N.O.; Respondent: Knowledge Malusi Nkanyezi Gigaba N.O.; Amicus Curiae: Casual Workers Advice Office; Amicus Curiae: Right2Know Campaign
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
20 September 2018
Case Number
CCT 165/17
Procedural Posture
Leave to Appeal / Constitutional Court Judgment on Application for Leave to Appeal and Merits
Outcome
Application for leave to appeal granted; appeal dismissed; conditional counter-appeal dismissed; no order as to costs.
Judges
Mogoeng, Cachalia, Dlodlo, Froneman, Goliath, Jafta, Khampepe, Madlanga, Petse, Theron
Legal Topics
Promotion of Administrative Justice Act, Locus Standi, Public Functionary Duty, Pension Funds Act, Ministerial Intervention, Review of Administrative Action
Administrative Law Civil Procedure Commercial and Corporate Promotion of Administrative Justice Act Locus Standi Public Functionary Duty Pension Funds Act Ministerial Intervention +1 more

Case Brief

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Parties

Rosemary Thérésé Hunter

Applicant

Financial Sector Conduct Authority

Respondent

Abel Moffat Sithole N.O.

Respondent

Dube Phineas Tshidi N.O.

Respondent

Jurgen Arnold Boyd N.O.

Respondent

Knowledge Malusi Nkanyezi Gigaba N.O.

Respondent

Casual Workers Advice Office

Amicus Curiae

Right2Know Campaign

Amicus Curiae

Procedural Posture

Leave to Appeal / Constitutional Court Judgment on Application for Leave to Appeal and Merits

Legal Issues

  1. 1 Whether the Financial Sector Conduct Authority (FSCA) had a constitutional and statutory duty to investigate alleged irregularities in the pension funds cancellations project.
  2. 2 Whether the appropriate remedy for the applicant was a review under the Promotion of Administrative Justice Act (PAJA) or a mandamus compelling further investigation.
  3. 3 Whether the Minister of Finance was required to intervene in respect of the applicant's governance complaint.

Ratio Decidendi

The majority held that the FSCA had recognised and discharged any duty to investigate alleged irregularities in the pension funds cancellations project by commissioning multiple independent investigations (O'Regan, KPMG, Mort). The applicant's remedy, if dissatisfied with the registrar's decisions, lay in review proceedings under PAJA, not in a mandamus compelling further investigation. The Court found that the applicant had standing to bring the matter in the public interest, but her case for further investigation was not made out on the facts or in her founding affidavit. The Minister was not required to intervene, as no culpable remissness was established. The joinder of the third and...

Court Disposition

Application for leave to appeal granted; appeal dismissed; conditional counter-appeal dismissed; no order as to costs.

Orders

  • The application for leave to appeal is granted.
  • The appeal is dismissed.