2017-07-03Staff Report 2 Roland Routh Windhoek-Former members of the Rössing Pension Fund were collectively disappointed when three judges of appeal upheld the appeal Rössing lodged against an earlier High Court decision that set aside a decision on the distribution of the Fund surplus. Judge of Appeal Dave Smuts, Chief Justice Peter Shivute and Deputy Chief Justice Petrus Damaseb found that the High Court erred in finding Rössing and the trustees of the Fund acted unlawfully when it decided how to distribute the surplus in the Fund. In his decision High Court Judge Shafimana Uitele found that the trustees had merely “rubberstamped” a decision by the mine and in essence “abdicated” their decision-making function to the mine. But the Supreme Court found that the trustees had indeed acted within the confines of the rules of the Fund, which provided that the final decision concerning a surplus rests with the employer. “The trustees had made recommendations to the employer to distribute the surplus. The decision to distribute the surplus in the ratio impugned in the proceedings was made by Rössing as employer and not by the trustees. “It was thus not competent to seek to review a decision of the trustees,” Judge Smuts, who wrote the judgment, stated. He went on to say the decision to distribute the surplus did not constitute administrative action as contemplated in Article 18 of the Constitution, because of the nature of the functions and powers exercised by the trustees and employer in doing so. This merely means the trustees and the mine did not infringe on Article 18, which stipulates that: ‘Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation; and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or Tribunal’. The High Court previously found that the decisions of trustees of pension funds not only affect their members, but have an impact on the wider economy and society at large and thus perform a public function susceptible to judicial review in terms of Article 18, Judge Smuts remarked. But he added, the pension fund in this instance relates to the management and administration of a privately-funded pension fund and does not concern the State or its bureaucracy. In fact, the judge said, while pensioners are not without remedies against trustees or employers when they breach their respective duties, the need for further remedies and safeguards for fund members is an aspect that should enjoy legislative attention. In the end, Judge Smuts said, the former members failed to prove that the trustees and the mine had acted outside the rules of the Fund, nor did they establish any breach of the duty of the mine to act in good faith as employer. He further said it was “incumbent” on the former members to establish a breach, on the basis of which to challenge the action of the trustees or the employer and this they failed to do. He then ruled that Rössing’s appeal was successful and proceeded to set aside the order of the High Court. Judge Smuts made no order as to costs. Rössing Uranium Mine and the trustees of the Rössing Pension Fund lodged their appeal after the High Court had nullified a decision of the mine with regards to the distribution of some N$454 million surplus from the Fund, giving the former members 15 percent of the surplus while the mine was to get 33 percent and the current and active members of the Fund 52 percent. The former members of the Rössing Pension Fund were represented by Cape Town-based Adv Norman Arendse SC, instructed by Clement Daniels Attorneys and assisted by Advocate Werner Boesak. The trustees were represented by Adv Andrew Corbett SC, instructed by Hanno Bossau and the mine by Adv Reinhardt Totemeyer SC, instructed by Dr Weder, Kauta and Hoveka Inc. 2017-07-03Staff Report 2
