On Thursday Justice Hendrik Jacobs of the North Gauteng High Court refused with costs the application by Rosemary Hunter to appeal against his findings in her case against the Financial Services Board (FSB) and others. The case relates to the cancellation of thousands of dormant pension funds between 2007 and 2013.
Hunter, who is the former deputy registrar of pension funds at the FSB, put a stop to the cancellations project shortly after taking up her position at the regulator. Her belief is that that process followed was flawed and may have led to members in these funds suffering material prejudice.
She had approached the High Court to ask it to order the FSB to properly investigate her claims and for the court itself to oversee this process. She also asked the court to order a thorough investigation into the conduct of the FSB’s CEO, Dube Tshidi, and other office bearers who she argued had frustrated her efforts to review the process.
In his original judgement, Jacobs found that Hunter had not presented the court with the required facts and legal conclusions to support her application. He also pointed out that an investigation into the cancellations project by pension fund lawyer Jonathan Mort was still ongoing.
In his ruling on the application for leave to appeal, Jacobs noted that:
“It was common cause throughout the proceedings that the FSB appointed Mr. Mort to undertake the investigation and inspections the FSB considered appropriate under the circumstances. The relief sought by the applicant in her main application and the proposed amended application is to have another person or institution appointed to undertake the work and to prescribe by way of court order the manner of execution thereof and for monitoring of execution of that order by the Court.”
However, he reiterated his belief that Hunter does not have the standing to seek this relief.
“The submission in my view loses sight of the fact that the FSB in the present matter considered the applicant’s views on the cancellations project, the recommendations of the O’Regan report and that of KPMG and acted in a manner not fully in line with the aforesaid recommendations, but as the FSB saw fit,” Jacobs said. “Absent in the present matter is any conduct which the FSB and the Minister considered irregular or unlawful to obligate the FSB to act in the manner claimed by the applicant. The FSB did act but in a different manner by appointing Mr. Mort and not the entities the applicant has in mind.”
Hunter has however made it clear that she intends to continue her fight. She believes that the way the FSB handled the matter raised serious questions that need to be answered.
In a statement, she noted that Jacobs said nothing “about the fact that there was nothing on the papers to suggest that the FSB had investigated – at all – the merits of my allegations against the executive officer and other FSB employees and office-bearers. For this reason, amongst others, I will be petitioning the Supreme Court of Appeal for leave to appeal to it.”
The FSB didn’t wish to comment on the court’s decision.