THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 222/2015

In the matter between:
REGISTRAR OF PENSION FUNDS

Appellant
and
C T HOWIE NO

First Respondent
D L BROOKING NO

Second Respondent
G O MADLANGA NO

Third Respondent
ROY ALAN HUNTER

Fourth Respondent
TELLUMAT PENSION FUND

Fifth Respondent

Neutral citation: Registrar of Pension Funds v Financial Services
Appeal Board (222/2015) [2015] ZASCA 203 (2
December 2015)
Coram:
MPATI P, LEACH, WALLIS and MATHOPO JJA and
BAARTMAN AJA
Heard:
24 November 2015
Delivered: 2 December 2015
Summary: Locus standi – Board of Appeal established by section 26A of
the Financial Services Board Act 97 of 1990 overturning decision by the

Registrar of Pension Funds –– Registrar does not have locus standi to
review the decision of the Appeal Board.

ORDER

On appeal from: Gauteng Division, Pretoria (Mavundla J, sitting as
court of first instance):
The appeal is dismissed.

JUDGMENT

Wallis JA (Mpati P, Leach and Mathopo JJA and Baartman AJA
concurring)

[1] This appeal is joined with that in Tellumat,1 judgment in which is
to be handed down simultaneously with this judgment.  The two appeals
arise out of the same decision by the Board of Appeal (the Appeal Board)
established in terms of s 26A of the Financial Services Board Act (the
FSB Act).2 The Appeal Board overturned a decision made under s 14 of
the Pension Fund Act (the Act) 3 by the appellant, the Registrar of
Pension Funds (the Registrar), to permit a transfer of business by the
Tellumat Pension Fund (the Fund). Both the Registrar and Tellumat (Pty)

1 Tellumat (Pty) Ltd v Appeal Board of the Financial Services Board and Others [2015] ZASCA 202.
2 Financial Services Board Act 97 of 1990.
3 Pension Funds Act 24 of 1956.

Ltd (Tellumat), the employer in relation to the Fund, challenged the
decision of the Appeal Board by way of review in the high court. Those
challenges were dismissed by the high court but it gave leave in both
cases to appeal to this court.

[2] Ordinarily it would not be necessary to write separate judgments in
these two cases as they raise the same issues on the merits of the review.
But there is a separate issue, arising in this case and not common to
Tellumat, that necessitates a separate judgment. The issue is whether the
Registrar has the necessary locus standi to challenge on review a decision
of the Appeal Board with which the Registrar does not agree. That issue
warrants a separate judgment, which will be confined to that question
alone. As regards the basis for and merits of the review they are dealt
with in the judgment in Tellumat.

[3] This court raised the question of the Registrar’s locus standi prior
to the appeal and we have received full argument from counsel on the
point.  Before considering that argument it is helpful to set out the
statutory background against which the question must be decided.

[4] The Registrar’s functions are set out in the Act. The function with
which we are concerned is that of approving amalgamations of pension

funds and the transfer of any business from a pension fund to any other
person in terms of s 14 of the Act. In this case the Registrar approved a
transfer of part of the business of the Fund. The transfer involved the
cession to pensioners of annuities taken out at their election with an
insurer in order to provide them with the benefits that they would
otherwise have had to look to the Fund to provide. The mechanism by
which this was done is described in the Tellumat judgment.

[5] If anyone is aggrieved by any decision by the Registrar, including
any decision pursuant to s 14 of the Act, they are entitled to lodge an
appeal against that decision with the Appeal Board in terms of s 26(1) of
the FSB Act. The composition of the Appeal Board is set out in s 26A of
the FSB Act. It must be chaired by a retired judge or an advocate or
attorney with a minimum of ten years experience. Its proceedings must be
heard in public (s 26B(9)) and parties are entitled to representation by a
legal representative (s 26B(8)). An appeal is decided on the written
evidence, factual information and documentation submitted to the
Registrar before the decision that is the subject of the appeal was taken
(s 26B(10)).

[6] The powers of the Appeal Board are set out in s 26B(15) of the
Act. These read as follows:

‘The appeal board may—

(a)
confirm, set aside or vary the decision under appeal, and order that any
such decision of the appeal board be given effect to; or

(b)
remit the matter for reconsideration by the decision-maker concerned
in accordance with such directions, if any, as the appeal board may determine.’
The appeal is accordingly of the second type referred to in Tikly.4 The
Appeal Board decides whether the Registrar’s decision was right or
wrong. Its decision either affirms or replaces that of the Registrar.

[7] If the Appeal Board did not exist the only way to challenge a
decision by the Registrar would be by way of judicial review. In such a
review the Registrar would be cited and would be able to enter the lists to
defend the challenged decision.5 Where the Appeal Board endorses the
decision by the Registrar and an aggrieved party wishes to challenge it,
they may do so by way of judicial review in terms of PAJA6 for the
reasons explained in Tellumat. In such a case, as the decision under
challenge is effectively that of the Registrar, endorsed by the Appeal
Board, both the Registrar and the Appeal Board are cited as parties to the
review and it is customary for the Registrar to appear and defend the

4 Tikly and Others v Johannes NO and Others 1963 (2) SA 588 (T) at 590F-H.
5 S A Medical & Dental Council v McLoughlin 1948 (2) SA 355 (A) (McLoughlin) at 370-1.
6 The Promotion of Administrative Justice Act 3 of 2000.

decision.7 That is not a problem. Where the decision by a functionary or
body is challenged by judicial review, and that functionary or body is
cited in the review proceedings, it is clearly open to them to participate in
the review and defend the challenged decision. There are many cases that
illustrate this principle.

[8] But the present case is different. Here the Registrar is adopting an
adversarial position towards the Appeal Board. The dispute is not
between the Registrar and an outside party aggrieved by the decisions. It
is an internal quarrel between the Registrar and the Appeal Board over
the correctness of the Registrar’s decision. It is immaterial to this review
whether other interested parties also wish to challenge the decision of the
Board. The Registrar is challenging it in her own right.8 In the
submissions on her behalf it was contended that in an appeal the Registrar
is a party to the proceedings and as such enjoys the same right as any
other party to challenge the outcome by way of judicial review. The issue
dealt with in this judgment is whether that proposition is correct.

7 Edcon Pension Fund v Financial Services Board of Appeal and Another [2008] ZASCA 65; 2008 (5)
SA 511 (SCA); National Tertiary Retirement Fund v Registrar of Pension Funds [2009] ZASCA 41;
2009 (5) SA 366 (SCA); Registrar of Pension Funds v ICS Pension Fund [2010] ZASCA 63; 2010 (4)
SA 488 (SCA) are all cases of this type,
8 The decision in question was taken by the previous registrar, Mr Jurgen Boyd, but the current
registrar, Ms Rosemary Hunter, is pursuing the review.

[9] The point made in the previous paragraph, that the Registrar’s
challenge is independent of the attitude of other interested parties, is
indicative of the problem that lies in accepting that the Registrar has l
locus standi to challenge the decision of the Appeal Board on appeal from
one of her decisions. The problem does not arise in this case because
Tellumat brought review proceedings in its own right. But, had it not
done so, the position would have been that all the parties concerned in
practical terms with the Appeal Board’s decision would have accepted it,
but it would be susceptible to being overturned at the instance of the
Registrar. That would be a most unusual situation. There are any number
of reasons why parties will be prepared to accept the decision of the
Board of Appeal after it is made. Indeed they might have had an
agreement prior to the appeal hearing that they would do so. Why should
their acceptance be subject to the Registrar wishing to establish that the
original decision was correct and that the Appeal Board has erred?

[10] It was submitted that the Registrar was a party to the proceedings
before the Board of Appeal, using ‘party’ in its litigious sense of one of
the adversaries in a dispute. Our attention was drawn in this regard to the
provisions of s 26B(12) of the FSB Act. Under s 26B(11) the Appeal
Board is confined to the material that was before the Registrar in

considering the appeal. But s 26B(12) authorises a departure from this
principle. It reads:
(a)  Despite the provisions of subsection (11) the chairperson of a panel designated to
hear an appeal may on application by—
(i)
the appellant concerned, and on good cause shown, allow further oral and
written evidence or factual information and documentation not made available to the
decision-maker prior to the making of the decision against which the appeal is lodged;
or
(ii)
the decision-maker concerned, and on good cause shown, allow further oral
and written evidence or factual information and documentation to be submitted and
introduced into the record on appeal.
(b)  If further oral and written evidence or factual information and documentation is
allowed into the record on appeal under paragraph (a) (i), the matter must revert to the
decision-maker concerned for reconsideration, and the appeal is deferred pending the
final decision of the decision-maker.
(c)  If, after the decision-maker concerned has made a final decision as contemplated
in paragraph (b), the appellant continues with the appeal by giving written notice to
the secretary, the record on appeal must include the further oral evidence, properly
transcribed, written evidence or factual information and documentation allowed, and
further reasons or documentation submitted by the decision-maker concerned.’

[11] I do not think that this section bears the construction suggested by
the Registrar. The reference to an application is merely a convenient way
of describing the mechanism whereby the appellant or the Registrar may

escape the constraints of s 26B(11). It does not necessarily bear any
connotation of a form of legal procedure. It means nothing more than that
the appellant may ask the Appeal Board for permission to submit
additional material that was not before the Registrar when the decision
was made. If there is a good reason for permitting it to do so the Appeal
Board may permit it to be admitted, but must then remit the matter to the
Registrar for a reconsideration of the original decision. In the same way
the Registrar may ask to submit additional material, either on the basis
that it is necessary to elucidate an issue that the Appeal Board must
consider, or because it is relevant and has only recently become
available.9 The Board of Appeal has a discretion to permit the
introduction of additional material taking into account its relevance and
questions of prejudice that may be caused by permitting it to be
introduced.

[12] In my view none of that means that the Registrar becomes a party
to the appeal proceedings in the sense that would permit it now to adopt
an adversarial position vis-à-vis the Appeal Board. Such a status would
be inconsistent with the role of the Registrar as an impartial regulator
acting in the interests of the industry generally and, when dealing with an

9 This is not intended to be an exhaustive statement of the circumstances in which additional material
may be introduced.

application such as this, acting as a neutral decision maker, bearing in
mind the interests of all parties to the fund in question. That the Registrar
is obliged to adopt an impartial stance when considering an application
under s 14 of the Act goes without saying. Indeed if the Registrar did not
do so that would be a ground of review under s 6(2)(a)(iii) of PAJA.10 As
that is undoubtedly the case, I find it difficult to see on what basis the
Registrar can become a party to the merits of the decision in an
adversarial sense when that decision is taken on appeal. The position is
wholly different from that which pertains in a review, where the
lawfulness of the procedure adopted by the Registrar would be attacked.
Recognising that a decision maker has locus standi to defend the
lawfulness of their conduct is different from recognising them as having
locus standi to defend the correctness of their decision. But in an appeal
to the Board of Appeal the latter is the issue.

[13]  There is a further problem that arises if the Registrar has locus
standi to challenge the decision of the Appeal Board on review. It is well
illustrated by this case. In the Registrar’s founding affidavit she charged
the Appeal Board with misdirections of fact and law; of taking into
account irrelevant considerations and ignoring relevant considerations;

10 The Promotion of Administrative Justice Act 3 of 2000.

and finally of taking a decision that was so unreasonable that no
reasonable person could have so exercised their powers. These allegations
were addressed to an Appeal Board chaired by a former President of this
court. While that does not render the Appeal Board immune from
criticism, if the Registrar is free to challenge in the courts the decisions of
the Appeal Board established by Parliament to hear appeals against her
decisions, that will serve to undermine public confidence in the Appeal
Board. After all, if the Registrar regards the decisions of the Appeal
Board as grossly unreasonable, why should the public have any faith in
them?

[14] But the Registrar’s claim lies under PAJA and the question of locus
standi is therefore to be answered in terms of s 38 of the Constitution.11
Two possible grounds for locus standi arise there. The first would be that
the Registrar is acting in her own interest.12 In Giant Concerts13 the
Constitutional Court held that whilst this might not require the same
sufficient, personal and direct interest as the common law, it still required
that the litigant must show that the contested legal decision directly
affects their rights or interests, or potential rights or interests. But the

11 See Giant Concerts CC v Rinaldo Investments (Pty) Ltd [2012] ZACC 28; 2013 (3) BCLR 251 (CC)
paras 41 and 43; Tulip Diamonds FZE v Minister of Justice and Constitutional Development and
Others [2013] ZACC 19; 2013 (10) BCLR 1180 (CC) para 31.
12 Section 38(a) of the Constitution.
13 Para 41.

Registrar’s rights and interests, actual or potential, are not affected by the
Appeal Board’s decision. She has no interest in the Fund other than as
regulator and this case raises no regulatory concerns. The parties
interested in the decision are the Fund, the pensioners and Tellumat, as
the employer.

[15]  It was suggested that the Registrar would be bound by any
underlying principle articulated by the Appeal Board in its decision. But
the principle of stare decisis is not applicable in relation to the decisions
of the Appeal Board.

[16]  The other possibility recognised in the Constitution is that the
Registrar is acting in the public interest.14 Counsel urged upon us that the
Registrar performs important functions and has an interest, shared by the
public, in the correctness of her decisions. My difficulty with this is that
the existence of the Appeal Board presupposes that the legislature was of
the view that some of the decisions by the Registrar might be incorrect,
and that there needed to be a mechanism to challenge and correct those
decisions. The view of the legislature was that when an appeal against a
decision of the Registrar succeeds, the Registrar is wrong and the Appeal

14 Section 38(d) of the Constitution.

Board right, or expressed more charitably, as between the Appeal Board
and the Registrar the Appeal Board’s decision is to be taken as correct.15

[17] Counsel referred us to a number of cases dealing with locus standi
while accepting that none of them were on all fours with this case. He
cited McLoughlin,16 but the question in issue there was whether a
statutory council that had conducted disciplinary proceedings against a
medical practitioner and imposed sanctions, could appeal to the then
Appellate Division against a judgment setting aside its decisions on
review. Not surprisingly the court held that, as a party to the review
proceedings it had a right to do so.

[18] Of rather more relevance to the situation in the present case is the
earlier decision in Minister of Labour.17 The Industrial Registrar, under
the old Industrial Conciliation Act,18 refused to register certain
amendments to a trade union’s constitution. An appeal to the Minister of
Labour was dismissed and the union pursued a statutory appeal to the
Supreme Court. Under the terms of the statute the decision of the court
was deemed to be that of the Minister, and the decision of the Minister

15 This is reminiscent of Justice Jackson’s aphorism about the United States Supreme Court that ‘We
are not final because we are infallible, but we are infallible only because we are final’. Brown v Allen
344 US 443 at 540.
16 At 370-1. See also Maske v The Aberdeen Licencing Court 1930 AD 30.
17 The Minister of Labour v Building Workers’ Industrial Union 1939 AD 328.
18 Industrial Conciliation Act 36 of 1937.

was deemed to be the decision of the Registrar. This court held that this
necessarily excluded a further appeal by the Minister. The parallel with
this case lies in the fact that under s 26B(15) the decision of the Appeal
Board either confirms or replaces the decision of the Registrar. Although
there is no equivalent deeming provision, permitting the Registrar to
challenge that decision in effect means that the Registrar is challenging
her own decision.

[19] The other case on which counsel placed considerable reliance was
Brits Town Council v Pienaar NO.19 He particularly stressed a sentence in
the judgment of Roper J,20 where the judge said that a town council, as
the body having jurisdiction over the issue of trading licences, had an
interest in the grant or refusal of a certificate by the Administrator of the
province compelling it to issue such a licence. But the context was
different and did not involve an appeal against the council’s refusal of a
licence. Three times the council refused an application for the issue of a
motor garage and general dealer’s licence. Under the Ordinance the
Administrator could issue a certificate compelling the council to issue a
licence if its grounds for refusal had been that there were sufficient such
licences in the municipality. Purporting to act in terms of this provision,

19 Brits Town Council v Pienaar NO and Another 1949 (1) SA 1004 (T).
20 At 1024-5.

but without asking the council why it had refused the licences, the
Administrator issued a certificate. The council challenged that decision as
unlawful and beyond the powers of the Administrator. It was in that
context and in relation to a challenge to the council’s locus standi that
Roper J said that it had an interest in the grant or refusal of a certificate
because it was the authority responsible for licencing in the town. The
case is entirely distinguishable.

[20] There is a brief statement in Rajah & Rajah,21 that indicates that a
local authority with a licencing function may have locus standi to review
and set aside the grant of a licence on the basis that it is in the public
interest for it to oversee the issue of such licences. But the context is
again different and the case was decided on the basis that the council had
suffered no prejudice as a result of the issue of the licence. As it was not
prejudiced, and on the face of it could not be prejudiced, by the issue of
the licence it is not clear why its licencing function should have given it
locus standi to bring review proceedings.

21 Rajah & Rajah (Pty) Ltd v Ventersdorp Municipality and Others 1961 (4) SA 402 (A) at 407E.

[21] Lastly, it is necessary to have regard to the decision in this court in
Pepcor.22 The case also arose from an application to the Registrar under
s 14 of the Act. Some years after the Registrar issued a certificate under
that section it appeared that the certificate had been issued on the basis of
information that was inaccurate and misleading. The Registrar
accordingly applied to set the certificate aside. His locus standi to do so
was challenged. The court held that he had locus standi on the basis that
he had committed an irregular act in issuing the approval in the first
instance and therefore had locus standi in the public interest to remedy
the situation by seeking to set the approval aside by way of review
proceedings. This constitutes an exception to the principle that once a
public body or functionary has exercised their powers they are functus
officio and their decision may only be set aside by a court at the instance
of a third party having a legal interest in that decision.23

[22] Once again that case is distinguishable from this situation. The
Registrar was seeking to set aside his own decision that had been made
irregularly. Here the Registrar seeks to set aside a decision of the Appeal
Board in order to vindicate a decision that the Appeal Board decided was

22 Pepcor Retirement Fund and Another v Financial Services Board and Another [2002] ZASCA 198;
2003 (6) SA 38 (SCA) [2003] 3 All SA 21 (SCA) at para 13.
23 See also Transair (Pty) Ltd v National Transport Commission and another 1977 (3) SA 784 (A) at
792H–793G; Municipal Manager: Qaukeni Local Municipality v F V Guard Trading CC [2009]
ZASCA 66; 2010 (1) SA 356 (SCA); [2010] 4 All SA 213 (SCA) at paras 23-24.

incorrect. Counsel argued that because there was locus standi in the
former situation and also when the Appeal Board was taken on review
after upholding the Registrar’s decision, it necessarily followed that the
Registrar had locus standi in this case. I do not agree. The answer to the
question whether a party has locus standi will vary depending on the
nature of the interest that the party seeks to vindicate.

[23] In order to determine the nature of that interest one must go back to
the purpose behind the establishment of the Appeal Board and its powers
under s 26B(15) of the FSB Act. The purpose is clear. It is to enable
persons affected by decisions of the Registrar24 to challenge those
decisions before a specially constituted body. The Appeal Board is to
decide, on the information before the Registrar, what decision the
Registrar should have made. And, once the Appeal Board has spoken,
either the Registrar’s decision stands, because it has been confirmed, or it
is substituted by the Appeal Board’s decision. In the latter event the
Appeal Board’s decision stands in the place of the decision of the
Registrar. In effect it becomes the Registrar’s decision. That much is

24 The definition of ‘decision maker’ in section 1 means that the right of appeal in s 26 is far wider than
a right of appeal against decisions of the Registrar and extends to the registrars of other financial
institutions.

clear from the fact that it does not direct the Registrar to act differently,
but directs that its own order be given effect.25

[24] Recognising that the Registrar has locus standi to challenge the
decision by the Appeal Board would upset the statutory relationship
between the two as set out in the FSB Act. It would be inconsistent with
the purpose of creating the Appeal Board and has the potential to
undermine it in performing its function. If one of the parties affected by it
is unhappy with a decision by the Appeal Board they are free to review it.
Recognising an independent right in the Registrar would permit of
challenges to a decision accepted by the parties affected thereby. The
Registrar does not point to any aspect of her regulatory functions that
would be detrimentally affected if she cannot challenge decisions by the
Appeal Board. Whilst the absence of authority to support the Registrar’s
position is not of itself fatal it provides a further pointer to the conclusion
that the Registrar does not have locus standi in this situation.

[25] This conclusion should not be a hindrance to the performance by
the Registrar of her functions. It relates only to a narrow area where the
Registrar disagrees with a decision of the Appeal Board overturning one

25 Section 26B(15)(a) of the FSB Act.

of her decisions. It will not affect the Registrar’s ability when she and the
Appeal Board see eye to eye to defend that position in review
proceedings. Nor will it prevent the Registrar from bringing proceedings
in other instances relating to her performance of her statutory functions.

[26] In the result I hold that the Registrar lacked locus standi to institute
the review proceedings in this case. The appeal is dismissed.

M J D WALLIS
JUDGE OF APPEAL

Appearances

For appellant:
F C SNYCKERS SC (with him S KHUMALO
Instructed by:
Rooth & Wessels Attorneys, Pretoria;
McIntyre & Van der Post, Bloemfontein

For respondents: No appearance.
Supreme Court of Appeal of South Africa

MEDIA SUMMARY– JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
2 December 2015
Status:
Immediate
Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.
Tellumat (Pty) Ltd v Appeal Board of the Financial Services Board
[2015] ZASCA 202 and Registrar of Pension Funds v Financial
Services Appeal Board [2015] ZASCA 203 .
The SCA today delivered judgment in these two appeals. Both arose out
of a decision by the Registrar of Pension Funds to approve the transfer to
pensioners of the Tellumat Pension Fund of annuity insurance policies
selected by the pensioners for the purpose of providing them with the
benefits they would otherwise have had to obtain from the Fund. The
decision was taken on review to the Appeal Board and set aside. Both the
employer, Tellumat (Pty) Ltd and the Registrar challenged the Appeal
Board’s decision by way of judicial review. Their applications were
dismissed and they appealed to the SCA.
The SCA dismissed the Registrar’s appeal on the grounds that she lacked
locus standi to challenge the decision of the Appeal Board. It held that to
permit a review would be contrary to the purpose of the legislature in
establishing the Appeal Board with the power to hear appeals against the
Registrar’s decisions and either to confirm those decisions or to vary or
set them aside and replace them with its own.

The SCA upheld Tellumat’s appeal. It said that the Appeal Board had
failed to pay sufficient regard to the fact that the application for the
Registrar’s approval was part of a larger distribution scheme properly
agreed upon by the Fund’s trustees. The effect of its order would have
been to disturb that scheme and require the actions taken pursuant to it
from 2007, with the support of the majority of pensioners, to be
overturned and revisited. Instead of considering the scheme as a whole
and the part the transfer would play in that scheme it treated the issues
before it as discrete and separate from the scheme. This failed to
recognise that the arrangements between the parties, which included
substantial improvements in existing pensions would not have been the
same were the issue to be approached on the basis it had done. Its
decision was accordingly set aside.