CAPE
BAR COUNCIL
5 June 2007
From : ASHLEY BINNS-WARD SC: Chairperson: Cape Bar Council
To: The Chairperson Finance Portfolio Committee National Assembly Parliament
Dear Sir
Re: PENSION FUNDS AMENDMENT BILL [B 11-2007]
The Parliamentary Sub-Committee of the
General Council of the Bar of South Africa has considered especially those
provisions of the Bill which it considers may impact on the administration of
justice or impress as possibly being questionable in terms of the Constitution.
The Bar supports the greater consistency
and attendant fairness that will be introduced by the amendments to 301 of the
Act as proposed in terms of clause 21 of the Bill.
The Bar does not support he proposed amendment of s 30P of the Bill. The
provisions of s 30P, as currently worded, have consistently been interpreted by
the Courts as conferring a right of appeal, in the wide sense of a rehearing,
against the decision of the Pension Funds Adjudicator. These appeal proceedings
are virtually without exception brought on motion and the Courts in any event
determine in such matters whether to hear oral evidence and if so on what
issues.
The amendment
proposed in terms of clause 22 of the Bill does not appear intended to make any
substantive change to the manner in which appeals from decisions of the
Adjudicator are already dealt with by the Courts.
In the circumstances, particularly the
introduction of the proposed sub-section 30P(3) will
serve only to confuse matters.
Accordingly save in respect of the replacement of 'Supreme Court' wherever it
appears with 'High Court', it is submitted that it would be counter-productive
to otherwise adopt the proposed amendment to s 30P.
It is submitted that the proposed wording of s 30Y in terms of clause 23 of the
Bill be supplemented by a sentence to read as follows: 'Provided that the text
of any regulation which it may be proposed to make in terms hereof shall first
be advertised for public comment.'
Clause 26 of the Bill proposes a substitution to s 37 of the Act. The existing
section provides that the contravention of various provisions of the Act
constitutes an offence for which prescribed penalties may be imposed.
Persons upon whom such penalties are imposed must be convicted by a court
before being subject to such penalties and will therefore be entitled to the
protection afforded by the Constitution to persons accused of a crime.
Subsections 2 to 5 enable the imposition of penalties for the failure to file
documents prescribed by the Act or for the late filing thereof. These penalties
may be imposed without recourse to a court of law. These penalties, in the
nature of the statutory provisions concerned, will be visited only on pension
funds, their agents or office bearers. Although not deal, the existing
provisions many pass constitutional muster.
The proposed new section, however, envisages a radical departure from these
principles. It enables the Registrar to impose so-called administrative
penalties of up to R5million per day on pension funds, administrators, or any
other party (third party) for any non-compliance with the Act. Although
subsections 3 and 4 seek in some measure to bring the proceedings into line
with court proceedings, it must be noted that the Registrar will be both the
prosecutor and the judicial officer in such proceedings - a constitutionally unacceptable situation. In
addition, a right of review only is provided, rather than a right of appeal
from a decision of the Registrar.
It is considered that the proposed new provisions, which are essentially penal
in character, offend against the constitutionally entrenched rights to a fair
trial and that it therefore should be removed from the bill, leaving the
existing section unamended.
Yours faithfully
ASHLEY
BINNS-WARD SC Chairperson
Cape Bar Council