Mostert NO v The Registrar of Pension Funds and Others

The appellant, a joint liquidator of the Picbel Groepvoorsorgfonds, sought to review and set aside regulation 35(4) made under the Pension Funds Act 24 of 1956. The regulation governs the treatment of unclaimed surplus benefits of former pension fund members, requiring such amounts to be placed in a contingency reserve and ultimately paid to the Guardian’s Fund or a similar statutory fund if members cannot be traced. The regulation was promulgated in 2003. The fund was placed under curatorship in 2005, liquidated in 2008, and its surplus apportionment scheme approved in 2012. The review application was only launched in February 2015. The High Court dismissed the application on the basis that it was brought outside the 180-day period prescribed by s 7(1) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), with no application for condonation under s 9.

The appeal was dismissed with costs, including the costs of two counsel.

The case confirms that compliance with the 180-day time limit in s 7(1) of PAJA is jurisdictional: once exceeded, a court lacks authority to entertain a review absent condonation under s 9. It clarifies that courts may raise PAJA delay issues themselves and that respondents may argue lack of jurisdiction even if not pleaded. The judgment also affirms that where regulation-making is treated as administrative action, PAJA’s procedural requirements, including time limits, apply.