Nichol and Another v Registrar of Pension Funds and Others (467/2004) [2005] ZASCA 97; 2008 (1) SA 383 (SCA) ; [2006] 1 All SA 589 (C) (29 September 2005)

Nichol and Another v Registrar of Pension Funds and Others (467/2004) [2005] ZASCA 97; 2008 (1) SA 383 (SCA) ; [2006] 1 All SA 589 (C) (29 September 2005)

The court held that section 7(2) of PAJA imposes a strict obligation to exhaust internal remedies before instituting judicial review, unless exceptional circumstances exist and exemption is in the interests of justice. The circumstances advanced by Nichol, including allegations of bad faith, procedural irregularity, and the existence of a prior determination, did not amount to exceptional circumstances. The FSB Appeal Board was found to be a competent and effective internal remedy, capable of granting the relief sought. The expiry of the time period for appeal did not constitute exceptional circumstances, especially as the decision to proceed by judicial review was deliberate and not...

Citation
[2005] ZASCA 97
Parties
Appellant: Archibald Barry Nichol; Appellant: The Sage Schachat Pension Fund; Respondent: Registrar of Pension Funds; Respondent: Financial Services Board; Respondent: The Sage Group Limited Staff Pension Fund; Respondent: The Sage Life Limited Staff Pension & Life Assurance Scheme (now known as The Sage Group Pension Fund); Respondent: Sage Life Limited; Respondent: Pension Funds Adjudicator; Respondent: Ronald Henry Cecil Small
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 September 2005
Case Number
467/2004
Procedural Posture
Civil Appeal / Appeal and Cross Appeal From Pretoria High Court
Outcome
Appeal dismissed with costs; cross-appeal struck from the roll with costs.
Judges
Mpati, Navsa, Van Heerden, Maya, Cachalia
Legal Topics
Promotion of Administrative Justice Act, Exhaustion of Internal Remedies, Exceptional Circumstances, Judicial Review, Pension Fund Regulation
Administrative Law Civil Procedure Promotion of Administrative Justice Act Exhaustion of Internal Remedies Exceptional Circumstances Judicial Review Pension Fund Regulation

Case Brief

Summary, issues, holding and outcome

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Parties

Archibald Barry Nichol

Appellant

The Sage Schachat Pension Fund

Appellant

Registrar of Pension Funds

Respondent

Financial Services Board

Respondent

The Sage Group Limited Staff Pension Fund

Respondent

The Sage Life Limited Staff Pension & Life Assurance Scheme (now known as The Sage Group Pension Fund)

Respondent

Sage Life Limited

Respondent

Pension Funds Adjudicator

Respondent

Ronald Henry Cecil Small

Respondent

Procedural Posture

Civil Appeal / Appeal and Cross Appeal From Pretoria High Court

Legal Issues

  1. 1 Whether the appellants were entitled to exemption from the obligation to exhaust internal remedies before instituting judicial review proceedings under section 7(2) of PAJA.
  2. 2 Whether exceptional circumstances existed justifying exemption from the internal remedy requirement.
  3. 3 Whether the internal remedy provided by the Financial Services Board Appeal Board was adequate and effective.

Ratio Decidendi

The court held that section 7(2) of PAJA imposes a strict obligation to exhaust internal remedies before instituting judicial review, unless exceptional circumstances exist and exemption is in the interests of justice. The circumstances advanced by Nichol, including allegations of bad faith, procedural irregularity, and the existence of a prior determination, did not amount to exceptional circumstances. The FSB Appeal Board was found to be a competent and effective internal remedy, capable of granting the relief sought. The expiry of the time period for appeal did not constitute exceptional circumstances, especially as the decision to proceed by judicial review was deliberate and not...

Court Disposition

Appeal dismissed with costs; cross-appeal struck from the roll with costs.

Orders

  • The appeal is dismissed with costs.
  • The cross-appeal is struck from the roll with costs.