Pension funds case: real issue

CONCOURT: SECOND INVESTIGATION THROWS CASE OUT

The regulator didn’t shy away from investigating. Mistakes were made

What Hunter wanted and was right to expect was that the FSB should investigate the cancellation of thousands of funds that had been de-registered during the project. She believed the process was legally flawed.

Retired judge Kate O’Regan, who conducted the first investigation, concluded that the registrar may have assumed powers that he legally didn’t have.

The second investigation, by KPMG, found reason to believe many funds had been cancelled when they still had assets. The third investigation, by pension fund lawyer Jonathan Mort, identified a number of funds where this was indeed the case.

The FSCA can’t dispute that mistakes were made. However, it has never tried to do so.

Hunter’s case before the courts has unfortunately relied on her belief the FSB was trying to hide something. Initially, she even made accusations of corruption and of a conspiracy to prevent a proper investigation. She however never presented any evidence.

Three independent investigations can’t be called a cover-up.

This is what the ConCourt found: “The FSCA has not only recognised and discharged its duty to investigate whatever is worthy of an investigation, but administrators have also embarked on the responsible exercise of ensuring that the interests of the admittedly vulnerable pensioners are not compromised,” Justice Sisi Kamphepe wrote in the judgment. “Public sector functionaries, too, deserve the space to carry out their duties free from outside interference that virtually amounts to unintended micromanagement. It should be enough that they have done what is reasonably necessary to achieve a process that would potentially yield a credible, transparent, inclusive and unbiased outcome. This they have done.”

Acrimony

Hunter believed the cancellations projected should be investigated. The regulator never shied away from doing so.

However, as Treasury stated: “It is important to note this case was not about issues of corruption, malfeasance, whistleblowing or unclaimed benefits.” It was about whether proper investigation into the cancellations project had taken place. And that is indeed the case.