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Orphan funds campaigners lose in Constitutional Court

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Judge Sisi Khampepe. Picture: Gallo Images
Judge Sisi Khampepe. Picture: Gallo Images

The former deputy registrar of pension funds Rosemary Hunter this week lost her epic years-long battle against the controversial mass cancellation of “orphan” pension and provident funds.

Hunter claimed that a mass deregistration of orphan funds – shell funds left without any members or assets or dormant funds without boards – from 2007 to 2013 was unlawful and potentially prejudicial to pensioners and other beneficiaries.

Hunter had asked the Constitutional Court to institute a court-supervised investigation into the cancellation of thousands of funds, the majority of which were cancelled by financial services group Liberty on behalf of what was then called the Financial Service Board, now the Financial Services Conduct Authority.

This is after previous investigations into whether the cancellations had prejudiced anyone

The court produced three rulings, but the majority ruled against Hunter and declared that the Financial Services Conduct Authority had already done what could be expected of it.

“The danger with the approach adopted by Ms Hunter is that it is very likely to yield a never-ending investigation. Investigations would be difficult to bring to finality as long as, in her view, something might just be uncovered,” reads the ruling penned by Judge Sisi Khampepe

“This observation must be understood within the context of the several credible investigations already conducted by people whose capacity to address actual or perceived irregularities is beyond doubt. One would therefore not be too hard on Ms Hunter by suggesting that even if another investigation were to be sanctioned by this court, it may still not satisfy Ms Hunter’s quest for ‘justice’, as she sees it.”

Jennifer Lawrence from Lawyers for Human Rights said that there was more work to do and that the ruling had given useful guidance to campaigners.

Lawyers for Human Rights represented the Casual Workers Advice Office, which was admitted as an amicus in the case.

The judges said that Hunter should have pursued a Promotion of Administrative Justice Act review of the decision to cancel the funds.

At this point too much time had lapsed to attempt a new case in relation to the 4 600 fund cancellations, but if orphan funds were cancelled in future, this would be the route to follow, said Lawrence.

Hunter was appointed deputy registrar in 2013 and immediately stopped the cancellation project.

A massively acrimonious battle inside the Financial Service Board ensued with Hunter’s superiors offering her a golden handshake to leave and then embarking on a failed disciplinary process.

Hunter’s fixed term ended in 2016, but she has carried on with the campaign.

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