Methodology[ edit ] The report is above all, a benchmark study of regulation. The survey consists of a questionnaire designed by the Doing Business team with the assistance of academic advisers. The questionnaire centers on a simple business case that ensures comparability across economies and over time.
Whether conclusion of fee agreement administrative action in terms of PAJA — whether application to set world bank doing business report 20110 fee agreement a review in terms of principle of legality — applicability of delay rule — locus standi of applicants — abuse of process and doctrine of unclean hands.
The court order appointed the second appellant, Mr A L Mostert, as the provisional curator. Mr Mostert, in his personal capacity is the first appellant. He is an attorney practising as the eponymous partner of the fourth appellant.
The present dispute relates to his remuneration as curator. This appeal is with his leave. If investment performance is better than predicted by the actuary the result may be that the assets of the fund are greater than the actuary determines is necessary to provide those benefits.
Under the conventional rules of such funds this surplus enables the employer to take a contribution holiday, that is, make no contributions at all to the fund.
This will deplete the surplus but may not extinguish it entirely. From the side of fund members and pensioners the attitude adopted was that any surplus not needed to provide for future benefits should be used to enhance the benefits of members and pensioners.
Neither view was in law correct. The true position was that all assets belonged to the fund and could only be disposed of in accordance with the rules of the fund and the provisions of the Pension Funds Act 24 of the PFA.
They need to be described briefly in view of the various preliminary points that have been raised and are dealt with below, but I do so using neutral language because there is a heated dispute as to their lawfulness.
This has led to Mr Nash and Midmacor being criminally prosecuted in proceedings that have not yet reached a conclusion. For his part Mr Nash maintains that these arrangements were lawful, their implementation was sanctioned by the FSB as the regulator of pension funds and involved no criminal conduct on his part.
Given that this dispute is to be resolved in another court on another occasion and that its resolution is unnecessary in order to resolve the present case, it is important that this court not express a view on the merits of the opposing contentions.
Midmacor had a number of subsidiaries and operated various businesses. Its employees were members of the Sable Fund, which had previously operated under a different name, and Midmacor became the principal employer of the fund.
According to some of the documents in the record he became a member of the Sable Fund. This business also had a pension fund for its employees that, like the Sable Fund, had an actuarial surplus.
The principal employer in respect of that fund was also enjoying a contribution holiday. Mr Ghavalas devised the following arrangements to enable the surplus in the Sable Fund to be unlocked immediately for the benefit of the employer, without waiting to exhaust it through a contribution holiday.
All the active members of the Sable Fund were transferred to the Cadac Fund, leaving the Sable Fund with a number of pensioners and only four active members, one of whom was Mr Nash.
Provision was made to purchase annuities for the pensioners to provide them with the benefits to which they were entitled under the rules of the Sable Fund and possibly some enhancement of those benefits.
This left the Sable Fund with four active members and an actuarial surplus of some R36 million, represented by assets held by the fund and not required to provide for future benefits.
Pro-Base had no assets and its only value lay in the potential to unlock the surplus in the Sable Fund. This required the assets representing the surplus to be transferred out of the Sable Fund. Illustrative of the fact that unlocking the surplus was the focus of this transaction was clause 7.
In other words it warranted that the surplus reflected therein would in fact exist. At the same time Lifecare assigned to the Lifecare Fund its obligations under the sale agreement with Midmacor in respect of the shares in Pro-Base. The four active members of the Sable Fund agreed to the merger of the businesses of the Sable Fund and the Lifecare Fund and should notionally have become members of the Lifecare Fund, although this does not appear to have happened.
After an investigation by the FSB in the application to place the Sable Fund under curatorship was made and Mr Mostert was appointed as its curator. He formed the view that these various transactions were unlawful and involved the commission of criminal offences and reported accordingly to the FSB.
In his report he indicated that he believed the Sable Fund had claims against various parties including Mr Nash and Midmacor. His problem was that it lacked the resources necessary to conduct the necessary investigations and then pursue actions against these parties to recover what he believed was due to the Sable Fund.
This led to him concluding the disputed fee agreement with the FSB.
This would obviously be prejudicial to the Fund members. Two years later, because the Sable Fund was entitled to receive funds from another curatorship that would enable it to discharge legal expenses already incurred and self-fund future expenses, this agreement was varied in terms of a memorandum of understanding MOU concluded between Mr Mostert, his law firm and a representative of the FSB.
The preamble recorded that: This remuneration is subject to the maximum amounts stated in 6 below. It is recorded that the curator of the Sable Pension Fund has applied for the fund to be placed in liquidation.
Formal notification from the FSB with regard to the fund so being placed in liquidation has not been received. This aspect of the MOU is not in dispute between the parties and nothing more need be said about it.
Preliminary issues  Mr Mostert was represented in his personal capacity, together with his law firm, and separately in his capacity as curator, together with the Sable Fund.The Doing Business Report has reported improvements in ranking in 8 out of 10 indicators, dis includes starting a business, dealing with construction permits, getting electricity, registering property, paying taxes, trading across borders, enforcing contracts and resolving insolvency.
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 Approximately R million of the recoveries has been allocated to three funds where Mr Mostert is a joint curator with a Mr Wandrag and the curators’ fees in respect of these three funds, amounting to nearly R90 million were calculated at a rate of 25% of recoveries in accordance with a court order relating to those funds alone.
This included the legal fees due to the two curators. USAAF Serial Numbers ( to ) Last revised November 1,