THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 467/04
REPORTABLE
In the matter between
ARCHIBALD BARRY NICHOL
First Appellant
THE SAGE SCHACHAT PENSION FUND
Second Appellant
and
THE REGISTRAR OF PENSION FUNDS
First Respondent
THE FINANCIAL SERVICES BOARD
Second Respondent
THE SAGE GROUP LIMITED STAFF PENSION
FUND
Third Respondent
THE SAGE LIFE LIMITED STAFF PENSION &
LIFE ASSURANCE SCHEME (now known as
The Sage Group Pension Fund)
Fourth Respondent
SAGE LIFE LIMITED
Fifth Respondent
THE PENSION FUNDS ADJUDICATOR
Sixth Respondent
RONALD HENRY CECIL SMALL
Seventh Respondent

Coram:
Mpati DP, Navsa et Van Heerden JJA, Maya et Cachalia AJJA
Heard:
13 September 2005
Delivered:
29 September 2005
Summary:
Promotion of Administrative Justice Act 3 of 2000, s 7(2) –
failure to exhaust internal remedies before institution of judicial review proceedings –
application for exemption in terms of s 7(2)(c) of PAJA – meaning of ‘exceptional
circumstances’

JUDGMENT

VAN HEERDEN JA:

Introduction
[1] The main issues in this appeal are the interpretation and application
of the provisions of s 7(2) of the Promotion of Administrative Justice Act 3
of 2000 (‘PAJA’).  Both the first and the second appellants appeal against
an order made by the Pretoria High Court (per Legodi AJ) dismissing an
application, brought by the former in terms of s 7(2)(c) of PAJA, to exempt
him from the obligation1 to exhaust an internal remedy available to him
before pursuing review proceedings which he had previously instituted in
the same high court.  The first, second, fourth and fifth respondents cross
appeal against the order of the Pretoria High court postponing the review
application sine die, the costs of such application to be reserved.  Both the
appeal and the cross appeal are with the leave of this court.
Parties
[2] The first appellant, Mr Archibald Barry Nichol (‘Nichol’), is a
pensioner who, until his retirement in 1994, was an active, contributing
member of the second appellant, the Sage Schachat Pension Fund (‘the
Sage Schachat Fund’), a pension fund registered in accordance with the
Pension Funds Act 24 of 1956 (‘the PF Act’). The first respondent is the
Registrar of Pension Funds (‘the Registrar’), appointed in terms of the PF

1 Imposed on him by s 7(2)(a) of PAJA.

Act and vested with extensive powers and functions in terms thereof.  The
second respondent is the Financial Services Board (‘the FSB’), a statutory
body established in terms of the Financial Services Board Act 97 of 1990
(‘the FSB Act’) with the primary function of supervising the compliance
with laws regulating financial institutions and the provision of financial
services.2  This supervisory function includes compliance with the PF Act
by pension fund organisations registered in terms of such Act.3  Section 3
of the PF Act provides that the executive officer of the FSB and his or her
deputy shall, respectively, also be the Registrar and Deputy-Registrar of
Pension Funds.  The fourth respondent is the Sage Life Limited Staff
Pension and Life Assurance Scheme, now known as the Sage Group
Pension Fund (‘the Sage Group Fund’), also a pension fund registered in
accordance with the PF Act.  The fifth respondent is Sage Life Limited
(‘Sage), a public company which, for present purposes, may be described
as the employer of persons employed within the Sage Group of companies.
Factual background
[3] The present dispute between the parties has a long and convoluted
history, most of which is dealt with in considerable detail in the Cape High

2  Section 3(a) of the FSB Act.
3  In terms of s 1 of the FSB Act, ‘financial institution’ is defined as meaning, inter alia, ‘any pension
fund organisation registered in terms of the Pension Funds Act’, while ‘financial service’ is in turn
defined as ‘any financial service rendered by a financial institution to the public or a juristic person…’.

Court judgment in Sage Schachat Pension Fund & others v Pension Funds
Adjudicator & others.4  It began in 1997 with a regrouping of operational
activities within the Sage Group of companies.  This resulted in a decision
taken in August 1998 by the management of the Sage Group to amalgamate
the Sage Schachat Fund, the Sage Group Limited Staff Pension Fund (the
third respondent) and the Sage Group Fund by transferring the businesses
(members, pensioners, assets and liabilities) of the first two pension funds
to the third in accordance with the provisions of s 14 of the PF Act.  On 9
and 10 December 1998 the boards of trustees of all three pension funds
adopted resolutions approving the proposed amalgamation.
[4] The three funds were merged with effect from 1 December 1998,
from which date the merged fund has been operating under the name of the
Sage Group Fund.  It was, however, only in October 1999 that the three
funds applied to the Registrar in terms of s 14 of the PF Act for
retrospective approval of the transfers.5  In the meantime, on 2 April 1999,
Nichol, acting in terms of s 30A(3) of the PF Act, had lodged a complaint
regarding the transfer of the Sage Schachat Fund with the sixth respondent,
the Pension Funds Adjudicator appointed in terms of Chapter VA of that

4  [2003] 4 All SA 394 (C).
5  It is not necessary for present purposes to consider Nichol’s contention that the boards of trustees of the
funds were not, at that time, lawfully constituted in that there had not been compliance with s 7A of the
PF Act providing for the right of members of a pension fund to elect at least 50 per cent of the members
of its board of trustees.

Act (‘the Adjudicator’).6  The basis of Nichol’s complaint was that he (and
others in the same position) had not been consulted on the proposed merger
of the Sage Schachat Fund with the other two funds.  The Sage Schachat
Fund was smaller and in a much more favourable surplus position than
either of the other funds.  Nichol thus opposed the merger on the ground
that, should it take place, the Sage Schachat Fund surplus would
‘effectively be diluted by the cross-subsidisation of the other funds’ as a
result of ‘the pooling of resources’.
[5] On 13 November 2001 the Adjudicator made his determination,
holding that, since the Registrar had not yet approved the merger of the
funds by issuing the requisite certificates in terms of s 14(1)(e) of the Act,
an ‘indispensable requirement for the legal validity of the new scheme’ had
not been met.  Thus, according to the Adjudicator, ‘the legal position is that
the funds are still three separate legal entities, no matter what may be
occurring in practice’.  The Adjudicator accordingly declared that the Sage
Schachat Fund ‘still exists as an independent pension fund organisation as
defined in the Act’.7

6  On 27 May 1999, the seventh respondent, Mr Ronald Henry Cecil Small (‘Small’), a pensioner in
exactly the same position as Nichol, lodged a similar complaint with the Adjudicator.  Small passed away
in December 2004.
7  For the full order made by the Adjudicator, see Sage Schachat Pension Fund & others v Pension Funds
Adjudicator & others n 4 above para 21 at 400e-j.

[6] On 18 December 2001 the Registrar approved the amendments to
the rules of the Sage Group fund and also issued certificates under
s 14(1)(e) of the PF Act approving the transfer of the businesses of the
Sage Schachat Fund and the Sage Group Limited Staff Pension Fund to the
Sage Group Fund.  The effect of these decisions was made retrospective to
1 December 1998, from which date the de facto merger had been in
operation.
[7] An application to the Cape High Court, launched on 27 December
2001 by the Sage Schachat Fund, the Sage Group Limited Staff Pension
Fund, the Sage Group Fund and Sage to set aside the Adjudicator’s
determination, was ultimately dismissed with costs by Van Zyl J on 17
October 2003.8
[8] On 7 January 2002 Nichol became aware of the fact that the
Registrar had issued the s 14(1)(e) certificates giving retrospective approval
to the transfers of business, as set out above.  A month later, on 8 February
2002, Nichol launched review proceedings in the Pretoria High Court,
seeking the following relief:

8  See Sage Schachat Pension Fund & others v Pension Fund Adjudicator & others n 4 above.

‘1. To review and set aside the decision or decisions referred to in the letter of JEREMY
ANDREW (Chief Actuary) addressed to Mr JOHN MURPHY, Pension Funds
Adjudicator, dated 29 November 2001…
2. To review and set aside the certification in terms of section 14 (1)(e) of the Pension
Funds Act, No 24 of 1956, that the requirements referred to in paragraph (a) to (d) of
the above section with regard to the transfer of business with effect from 1 December
1998 of 17 Members and 52 Pensioners from the SAGE SCHACHAT PENSION
FUND to the SAGE GROUP PENSION FUND have been satisfied’.
The review application (‘ the main application’) was brought in terms of
Uniform Rule 53, but it is now common cause that, notwithstanding the
fact that no mention is made anywhere in the papers filed in the main
application of PAJA or any of its provisions, the review would fall to be
decided in terms of PAJA.9
[9] According to Nichol, at the time when the review application was
lodged, his attorney of record advised him that ‘all forms of internal appeal
against administrative acts must be exhausted before a court may be
approached to review an administrative act’.  It was explained to him,
however, that ‘in the event of the administration acting in bad faith, the
court may be approached directly’.  As Nichol ‘firmly believed that the

9  See Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC)
paras 20 – 27.

Registrar and the FBS acted in bad faith’, he apparently instructed his
attorney to lodge the review application with High Court.
[10] In the answering affidavit filed in April 2002 on behalf of the
Registrar and the FSB, it was specifically pointed out that the relief sought
by Nichol was inappropriate in that any person aggrieved by a decision of
the Registrar had a right of appeal against such decision to the Board of
Appeal constituted under s 26(1) of the FSB Act (‘the FSB Appeal Board’)
and that ‘the nature and intricacies of this matter more appropriately fell to
be dealt with by [this] expert tribunal’.  Nichol’s response to this, in his
replying affidavit filed during March 2003, was simply to state that he
‘honestly believed’ that the High Court was ‘the right tribunal to address
[his] grievances’.
[11] In the respondents’ heads of argument filed in the court below in
late March and early April 2004 it was pointed out that, as Nichol had an
internal remedy provided for in another law (ie an appeal to the FSB
Appeal Board), s 7(2)(a) of PAJA rendered it impermissible for a court to
review the decision of the Registrar before such internal remedy had been
exhausted.  It was also pointed out that Nichol had not made any
application in terms of s 7(2)(c) of PAJA for exemption from the obligation
to exhaust his internal remedies.  This provoked a response from Nichol in

the form of an application in terms of s 7(2)(c), filed on 8 April 2004, for
an order ‘granting the applicant exemption from the obligation to exhaust
the internal remedy available to him in terms of section 26 of the Financial
Services Board Act, No 97 of 1990, on the grounds that exceptional
circumstances exist and that such exemption is in the interest of justice’.
Unsurprisingly, this application was opposed by the Registrar, the FSB, the
Sage Group Fund and Sage.
[12] The s 7(2)(c) application was heard by the Pretoria High Court on
28 and 29 April 2004 and, on the latter date, Legodi AJ dismissed the
application with costs; directed Nichol to exhaust the internal remedy as
provided for under s 26 of the FSB Act, and postponed the main
application sine die, reserving the costs thereof.  As indicated above, these
orders form the subject of the present appeal and cross appeal.
[13] The affidavits filed on behalf of Nichol in the s 7(2)(c) application
make it clear that, at the time the main application was launched, he and his
legal advisers were aware of the possibility of an appeal to the FSB Appeal
Board in terms of s 26(2) of the FSB Act.  However, as Nichol’s attorney
of record stated in the replying affidavit deposed to by him on Nichol’s
behalf in the s 7(2)(c) application, this subsection ‘only came to [his]
attention when the Respondents filed their Heads of Argument’ in the main

application and he was then ‘obliged to inform [Nichol] of the problem and
the need to bring this [s 7(2)(c)] application.’  Nichol’s attorney of record
stated further that, this notwithstanding, he would have advised Nichol to
bring the exemption application at the outset, had he been aware of the
provisions of s 7(2)(c).  The decision not to pursue the internal remedy
provided in s 26(2) of the FSB Act was thus a deliberate one.  It is clear
that Nichol’s legal advisors were simply unaware of the provisions of
PAJA until a very late stage of the review proceedings.
Section 7(2) of PAJA
[14] Section 7(2) of PAJA provides as follows:
‘(a) Subject to paragraph (c), no court or tribunal shall review an administrative action
in terms of this Act unless any internal remedy provided for in any other law has first
been exhausted.
(b) Subject to paragraph (c), a court or tribunal must, if it is not satisfied that any
internal remedy referred to in paragraph (a) has been exhausted, direct that the person
concerned must first exhaust such remedy before instituting proceedings in a court or
tribunal for judicial review in terms of this Act.
(c) A court or tribunal may, in exceptional circumstances and on application by the
person concerned, exempt such person from the obligation to exhaust any internal
remedy if the court or tribunal deems it in the interest of justice.’

[15] Under the common law, the mere existence of an internal remedy
was not, by itself, sufficient to defer access to judicial review until the
remedy had been exhausted.  Judicial review would in general only be
deferred where the relevant statutory or contractual provision, properly
construed, required that the internal remedies first be exhausted. 10
However, as is pointed out by Iain Currie and Jonathan Klaaren,11 ‘by
imposing a strict duty to exhaust domestic remedies, [PAJA] has
considerably reformed the common law’.  It is now compulsory for the
aggrieved party in all cases to exhaust the relevant internal remedies unless
exempted from doing so by way of a successful application under s 7(2)(c).
Moreover, the person seeking exemption must satisfy the court of two
matters: first, that there are exceptional circumstances and second, that it is
in the interest of justice that the exemption be given.12
The meaning of exceptional circumstances
[16] Counsel for the Registrar and the FSB submitted that, while there is
no definition of ‘exceptional circumstances’ in PAJA, these must be
circumstances that are out of the ordinary and that render it inappropriate

10 See eg Shames v South African Railways & Harbours 1922 AD 228 at 233-234; Welkom Village
Management Board v Leteno 1958 (1) SA 490 (A) at 502D-503D; Local Road Transportation Board &
another v Durban City Council & another 1965 (1) SA 586 (A) at 592F-594C.  See also Daniel Malan
Pretorius ‘The Wisdom of Solomon: The Obligation to Exhaust Internal Remedies in South African
Administrative Law’ (1999) 116 SALJ 113 and the other authorities there cited.
11 The Promotion of Administrative Justice Act Benchbook p 182.
12  See Earthlife Africa (Cape Town) v Director-General: Department of Environmental Affairs &
Tourism & another 2005 (3) SA 156 (C) para 45.

for the court to require the s 7(2)(c) applicant first to pursue the available
internal remedies.  The circumstances must in other words be such as to
require the immediate intervention of the courts rather than resort to the
applicable internal remedy.  I agree with this contention.  In the words of
Sir John Donaldson MR in R v Secretary of State for the Home
Department, Ex parte Swati:13
‘By definition, exceptional circumstances defy definition, but, where Parliament
provides an appeal procedure, judicial review will have no place unless the applicant
can distinguish his case from the type of case for which the appeal procedure was
provided.’
[17] The exceptional circumstances upon which reliance is placed in
support of an application for exemption in terms of s 7(2)(c) should
primarily be facts and circumstances existing before or at the time of the
institution of the review proceedings.  This does not mean that the court
may not, in principle, take into consideration events occurring after the
launch of such proceedings.  Apart from the judgment of the Cape High
Court handed down on 17 October 2003 – the relevance of which I will
discuss below –  the alleged ‘exceptional circumstances’ ultimately relied
upon by Nichol all existed prior to the commencement of the main
application.

13  [1986] 1 All ER 717 (CA) at 724a-b, as cited with approval in Earthlife Africa para 31.

[18] As ‘exceptional circumstances’ which might justify an exemption in
terms of s 7(2)(c) would exist where the available internal remedy would
not be able to provide the applicant with effective redress for his or her
complaint, 14 it is necessary to examine more closely the nature of the
internal remedy provided for in the FSB Act.
The internal remedy
[19] Section 26(2) of the FSB Act –
‘Any person aggrieved by a decision by the executive officer [the Registrar] under a
power conferred or a duty imposed upon him by or under this Act or any other law may
within the period and in the manner and upon payment of the fees prescribed by the
Minister [of Finance] by regulation, appeal against such decision to the board of
appeal.’
[20] The FSB Appeal Board, established in terms of s 26(1) of the FSB
Act, is a specialist tribunal with a wide range of expertise available to it.  It
consists of three persons appointed by the Minister of Finance on the basis
of their ‘wide experience’ and ‘expert knowledge’ of, respectively, law,15
financial institutions and financial services, and the accountants’ and
auditors’ profession.  In addition the Board may co-opt an assessor having

14  See eg Marais v Democratic Alliance [2002] 2 All SA 424 (C) paras 59-62 and cf Governing Body,
Mikro Primary School & another v Minister of Education, Western Cape , & others 2005 (3) SA 504 (C)
at 515F-G.  On the common law position in this regard, see Lawrence Baxter Administrative Law p 721-
722 and the authorities there cited.
15  This person is the chair of the Appeal Board.

‘expert knowledge of a particular matter’ to assist it where this is deemed
necessary for the hearing of a particular appeal.16  It has been held to be an
independent tribunal as contemplated in s 34 of the Constitution.17
[21] In terms of s 26(7), the Commissions Act 8 of 1947 applies to the
Appeal Board and it thus has all the powers of a High Court to summon
and examine witnesses and to call for the production of books, documents
and objects.18  It has very wide powers on appeal, including the power to
confirm, set aside or vary the decision of the Registrar against which the
appeal is brought; to refer the matter back for consideration or
reconsideration by the Registrar in accordance with such directions as the
Board may lay down; or to order that its own decisions be given effect to.19
In addition, it is empowered under s 26(2A) to grant interim relief by
suspending the operation or execution of the decision appealed against and,
under s 26(14), it can make an appropriate order as to costs.
[22] The Appeal Board therefore conducts an appeal in the fullest sense
– it is not restricted at all by the Registrar’s decision and has the power to
conduct a complete rehearing, reconsideration and fresh determination of
the entire matter that was before the Registrar, with or without new

16  Section 26(1B) of the FSB Act.
17  Financial Services Board & another v Pepkor Pension Fund & another 1999 (1) SA 167 (C) at 175I-J.
18  Section 3 of the Commissions Act 8 of 1947.
19  Section 26(10) of the FSB Act.

evidence or information.20  This is not disputed by Nichol.  It has also never
been suggested that the Appeal Board has been tainted by any of the
alleged procedural or substantive irregularities of which Nichol
complains. 21  I therefore cannot agree with the argument advanced by
counsel for the appellants to the effect that the Appeal Board would be
unable to give effect to their constitutional rights to fair administrative
action and would not be able to ‘make a declaration of invalidity’ in respect
of the impugned decisions of the Registrar, as opposed to ‘simply setting
aside’ such decisions.  As detailed in the previous paragraph, the powers of
the Appeal Board are certainly extensive enough to afford Nichol the same
relief (if justified) as that sought by him in the main application, namely an
order ‘reviewing and setting aside’ the relevant decisions of the Registrar,
in particular the issue of a certificate in terms of s 14(1)(e) of the PF Act in
respect of the transfer of business from the Sage Schachat Fund to the Sage
Group Fund.
The grounds for Nichol’s s 7(2)(c) application
[23] In his founding affidavit in support of the exemption application,
Nichol contended that all of the grounds of review on which he relied in the

20  See eg Paarlse Munisipale Weduwee-en Wese-Pensioenfonds v Registrar of Pension Funds [2000] 3
BPLR 247 (PFA).
21  Cf Earthlife Africa (Cape Town) v Director-General: Department of Environmental Affairs & Tourism
& another n 12 above para 40.

main application in themselves constitute ‘exceptional circumstances’.
This submission was elaborated upon in great detail in the heads of
argument filed on his behalf in this court, reference being made (inter alia)
to the majority of the grounds of review listed in s 6 of PAJA.  Not only are
the numerous grounds of review canvassed in Nichol’s heads of argument
by and large not the grounds relied upon in his affidavits in the main
application, but he also failed dismally to demonstrate why the FSB Board
of Appeal would not be able effectively to consider and remedy each of
these ‘complaints’.
[24] Moreover, as was pointed out by counsel for both sets of
respondents, Nichol’s contention in this regard ‘puts the cart before the
horse’.  It is based on the proposition that Nichol is entitled to be exempted
from complying with the requirements of s 7(2)(a) of PAJA and exhausting
his internal remedies merely because – so it is contended – his case on the
merits of the main application is strong.  This cannot be so.  Taken to its
logical conclusion, such an approach would defeat the purpose of s 7(2),
which requires an applicant for judicial review to have exhausted his or her
internal remedies before resorting to review proceedings.  Allegations of
procedural or substantive administrative irregularities per se are not
‘exceptional’ in review proceedings.

[25] So too, Nichol’s allegations of mala fides on the part of the
Registrar and the FSB in various forms do not take his case any further.
One of the listed grounds of review in s 6(2) of PAJA is that the relevant
administrative action ‘was taken in bad faith’.22  As pointed out above,
there was no suggestion that the FSB Appeal Board was itself tainted or the
appeal procedure compromised in any way.  For the purposes of the
exemption application under discussion, the allegation of bad faith does not
per se constitute an ‘exceptional circumstance’.
[26] For the same reasons as those set out in the three preceding
paragraphs, Nichol’s contention that the alleged failure on the part of the
Registrar and the FSB to comply with the provisions of s 3 of PAJA also
constitutes an ‘exceptional circumstance’ in terms of s 7(2)(c) must be
rejected.  Even assuming there to have been non-compliance with the
requirements for procedural fairness set out in s 3, this would simply afford
the aggrieved party grounds for review on the basis that the administrative
action in question ‘was procedurally unfair’.23  As with any of the other
grounds of review listed in s 6 of PAJA, however, the manner of review of
such procedurally unfair administrative action is still governed by s 7(2), in

22  Section 6(2)(e)(v).
23  Section 6(2)(c).

terms of which the aggrieved party is obliged to exhaust his or her internal
remedies before bringing review proceedings.
[27] Nichol also contended that the existence of the determination by the
PFA precluded the Registrar from issuing the s 14(1)(e) certificate and that,
in so doing, the Registrar acted in ‘clear and deliberate disregard of an
existing court order’.  He relied in this regard on the provisions of s 30O of
the PF Act, in terms of which ‘any determination of the Adjudicator shall
be deemed to be a civil judgment of any court of law had the matter in
question been heard by such court’.  Nichol argued further that, as the
application to the Cape High court to have the Adjudicator’s determination
set aside was dismissed, albeit after the launch of the review proceedings,
the s 14(1)(e) certification by the Registrar was in direct contravention (and
in contempt) of ‘an Order deemed to be an Order of Court and confirmed
as such by the Cape High Court’.  According to Nichol, this ‘anomaly’
constituted an ‘exceptional circumstance’ entitling him to exemption in
terms of s 7(2)(c).
[28] Counsel for the Registrar and the FSB argued, on the other hand,
that, once the rules of the Sage Group Fund had been amended and the
s 14(1)(e) certificates had been issued, the necessary result was that the
amalgamation of the three funds became lawful, even if this might have

had the result of rendering redundant some or all of the terms of the
Adjudicator’s determination.  Counsel contended that this position was not
altered in any way by the judgment in the proceedings before the Cape
High Court.
[29] The relationship between the PFA and the Registrar, and the status
of the determination made by the former in the light of the issue of the
s 14(1)(e) certificates by the latter, are clearly central to the dispute
between the parties.  However, for present purposes, it is not necessary to
decide these issues one way or the other.  Suffice it to say that these are
exactly the sort of issues that can – and should – be addressed by the FSB
Appeal Board.  They do not, in my view, constitute exceptional
circumstances entitling Nichol to ask the court to exempt him from the
obligation to comply with s 7(2)(a) of PAJA and exhaust his internal
remedy before instituting review proceedings.
[30] In terms of the Regulations in Respect of Appeals to the Board of
Appeal made by the Minister of Finance under s 26(2) of the FSB Act,24
any person aggrieved by a decision of the Registrar ‘shall within twenty
business days after the date of the decision in writing note an appeal against

24  Government Notice R6 in GG 14514 dated 8 January 1993, as amended by Government Notice R1024
in GG 14870 dated 18 June 1993 and Government Notice R1666 in GG 15096 dated 3 September 1993.

the decision’ to the FSB Board of Appeal.25  Nichol contended that by the
time he became aware of the decision of the Registrar on 7 January 2002,
the 20 day time period provided for appeals to the Board of Appeal had
already expired.  This, according to Nichol, precluded him from pursuing
his internal remedy under the FSB Act and constituted exceptional
circumstances making an exemption in terms of s 7(2)(c) clearly in the
interests of justice.
[31] As was pointed out by counsel for both sets of respondents, this
contention was not raised in Nichol’s exemption application, but surfaced
for the first time in Nichol’s second set of supplementary heads of
argument filed a day before the hearing in the court a quo. This meant that
none of the respondents had the opportunity of responding to this matter in
the course of the exemption application.  In addition, on the facts, counsel
for the respondents disputed the contention that the time period within
which to lodge an appeal had passed by the time Nichol became aware of
the Registrar’s decision.
[32] Counsel also submitted that, although the regulations do not make
explicit provision for the Appeal Board to condone non-compliance with
the prescribed time period, the regulations are capable of an interpretation

25  Regulation 2.

that the Appeal Board does have such powers of condonation.  In any
event, as pointed out above, it is clear from the affidavits deposed to by
Nichol and his attorney that consideration was given to pursuing an internal
appeal and that the decision not to do so and to proceed by way of judicial
review was a deliberate one.  There is no suggestion whatsoever in the
papers that the reason for this decision was that the internal appeal was out
of time.  Nichol’s case is that he was unaware of the provisions of s 7(2) of
PAJA, but that had he been made aware of those provisions at an earlier
stage, he would still have proceeded by way of judicial review and not by
way of an appeal to the Appeal Board.  This being so, he cannot now raise
the expiry of the time limit for the lodging of such an appeal as an
exceptional circumstance for the purposes of an exemption application in
terms of s 7(2)(c) of PAJA.
[33] It is thus not necessary to decide whether or not the FSB Appeal
Board does have the power to condone non-compliance with the time limit
prescribed for the lodging of appeals to it.  It should, however, be noted
that, in argument before this court, counsel for the Registrar and the FSB
gave an undertaking on their behalf that, should Nichol lodge an appeal

with the Appeal Board in terms of s 26(2) of the FSB Act, they would not
rely on the expiry of the twenty day time period as a bar to such appeal
[34] It follows from the above that, in my view, the court below
correctly held that there were no exceptional circumstances in terms of
s 7(2)(c) of PAJA for exempting Nichol from his obligation to exhaust his
internal remedy prior to instituting review proceedings.  Accordingly the
appeal should be dismissed with costs.
[35] It is apparent from what I have already said that the question of the
continued existence as separate entities of the Sage Schachat Fund, of the
third respondent and of the fourth respondent (as a ‘merged fund’) after the
issue of the s 14(1)(e) certificates by the Registrar is one of the main issues
that will have to be decided by the FSB Appeal Board.  This question
cannot be resolved in the present appeal.  So too, the correctness of the
contention by counsel for both sets of respondents that the Sage Schachat
Fund had no standing to prosecute this appeal cannot be determined at this
stage.
The cross appeal
[36] In my view, the cross appeal against the order of the court a quo
postponing the main application sine die and reserving the costs thereof is

misconceived.  This ‘order’ does not satisfy the first jurisdictional
requirement for appealabilty under s 20 of the Supreme Court Act 59 of
1959 in that it lacks the attributes of a ‘judgment or order’ within the
meaning of those words in s 20(1).  It is not final in its effect and is
susceptible of alteration by the court of first instance; it is not definitive of
the rights of the parties; and it does not have the effect of disposing of at
least a substantial portion of the relief claimed in the main proceedings.26
That being so, the cross appeal should be struck from the roll.
Order
[37] In the circumstances, the following order is made:
(a) The appeal is dismissed with costs.
(b) The cross-appeal is struck from the roll with costs.

B J VAN HEERDEN
JUDGE OF APPEAL
Concur: Mpati DP, Navsa JA, Maya AJA, Cachalia AJA

26 See in this regard Zweni v Minister of Law and Order 1993 (1) SA 523 (A); see further LTC Harms
Civil Procedure in the Superior Courts paras C1.15-C1.18 and the other authorities there cited.