Ovation Preservation Pension Fund and Others v Executive Officer Financial Services Board (519/2007) [2008] ZASCA 82; 2009 (1) SA 485 (SCA) (2 June 2008)

Ovation Preservation Pension Fund and Others v Executive Officer Financial Services Board (519/2007) [2008] ZASCA 82; 2009 (1) SA 485 (SCA) (2 June 2008)

The Supreme Court of Appeal held that section 5(5) of the Financial Institutions (Protection of Funds) Act confers a wide discretion on the court to make orders necessary for the effective management of an institution under curatorship. This includes authorising curatorship costs to be paid from trust assets if the institution's own funds are insufficient, as the curatorship is intended to protect investors. The court further held that it was competent to restrict payments to beneficiaries and disinvestment from the institution during curatorship, as such measures may be necessary to preserve the institution's assets and ensure its survival. The curatorship order does not extinguish...

Citation
[2008] ZASCA 82
Parties
Appellant: Ovation Preservation Pension Fund; Appellant: Ovation Preservation Provident Fund; Appellant: Ovation Preservation Annuity Fund; Respondent: Executive Officer of the Financial Services Board
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
2 June 2008
Case Number
519/2007
Procedural Posture
Civil Appeal / Appeal From Confirmation of Provisional Curatorship Order
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Scott, Mlambo, Hurt, Leach, Kgomo
Legal Topics
Curatorship, Trust Property, Powers of Court, Costs of Curatorship, Restriction on Disinvestment, Pension Benefits
Banking and Finance Civil Procedure Curatorship Trust Property Powers of Court Costs of Curatorship Restriction on Disinvestment Pension Benefits

Case Brief

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Parties

Ovation Preservation Pension Fund

Appellant

Ovation Preservation Provident Fund

Appellant

Ovation Preservation Annuity Fund

Appellant

Executive Officer of the Financial Services Board

Respondent

Procedural Posture

Civil Appeal / Appeal From Confirmation of Provisional Curatorship Order

Legal Issues

  1. 1 Whether the court was authorised to order that curatorship costs be defrayed from trust assets held by the institution.
  2. 2 Whether the court could restrict payments to investment beneficiaries and disinvestment from the institution under curatorship.
  3. 3 Whether the curators' powers could extend to limiting contractual rights of pension funds and their members.

Ratio Decidendi

The Supreme Court of Appeal held that section 5(5) of the Financial Institutions (Protection of Funds) Act confers a wide discretion on the court to make orders necessary for the effective management of an institution under curatorship. This includes authorising curatorship costs to be paid from trust assets if the institution's own funds are insufficient, as the curatorship is intended to protect investors. The court further held that it was competent to restrict payments to beneficiaries and disinvestment from the institution during curatorship, as such measures may be necessary to preserve the institution's assets and ensure its survival. The curatorship order does not extinguish...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, such costs to include the costs of two counsel.