Nichol v Registrar of Pension Funds and Others

The first appellant, Mr Archibald Barry Nichol, a pensioner and former member of the Sage Schachat Pension Fund, challenged the retrospective approval by the Registrar of Pension Funds of a merger of three pension funds under s 14 of the Pension Funds Act 24 of 1956. Although the merger was implemented in practice from December 1998, statutory approval was only granted in December 2001. Nichol had earlier lodged a complaint with the Pension Funds Adjudicator, who ruled that the merger was invalid pending Registrar approval. After the Registrar issued certificates retrospectively approving the merger, Nichol instituted review proceedings in the Pretoria High Court without first appealing to the Financial Services Board (FSB) Appeal Board, an internal remedy available under s 26 of the Financial Services Board Act 97 of 1990. When this defect was raised, Nichol applied for exemption under s 7(2)(c) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), which the High Court dismissed.

The appeal was dismissed. The High Court’s order refusing exemption under s 7(2)(c) of PAJA, directing Nichol to exhaust the internal appeal to the FSB Appeal Board, and postponing the review application sine die was upheld.

The case is a leading authority on s 7(2) of PAJA, clarifying the strict duty to exhaust internal remedies and the narrow scope of the 'exceptional circumstances' exemption. It underscores the central role of specialist statutory appeal bodies in South African administrative law.