- The Municipal Employees’ Pension Fund lost its attempt to force the FSCA to hand over investigation records.
- The Supreme Court of Appeal found that the FSCA’s decision to investigate does not automatically give rise to a right to disclosure.
- The judgment draws a clear line between investigations that gather information and decisions that directly affect legal rights.
The Municipal Employees’ Pension Fund has lost its appeal to force the FSCA to release records from its investigation.
The dispute began when the FSCA started investigating the Municipal Employees’ Pension Fund under Section 135 of the Financial Sector Regulation Act 9 of 2017. The regulator suspected the fund might be breaking financial sector laws. Acting on these suspicions, the FSCA obtained a court warrant, searched the fund’s offices, and seized documents listed in the court order.
The pension fund responded by urgently challenging the warrant and seeking to review the FSCA’s decision to investigate. As part of this challenge, the fund demanded the full record of what led to the investigation, arguing that it needed these documents for its review.
The parties’ fight
The Municipal Employees’ Pension Fund argued that once review proceedings had started, the FSCA had to provide the record of its decision-making process. The High Court in Pretoria agreed and ordered the FSCA to disclose the records.
The FSCA appealed the ruling, arguing that its decision to investigate was just a preliminary step in the regulatory process. It did not determine guilt, impose penalties, or directly affect anyone’s rights. Therefore, the FSCA said, its decision should not automatically be open to review or require full disclosure of records.
In a unanimous judgment written by Judge MM Makgoka, the Supreme Court of Appeal agreed. Judge Makgoka noted that the FSCA suspected that the Pension Fund was contravening financial sector laws and launched an investigation into the Pension Fund’s conduct.
Judge Makgoka rejected the High Court’s broad approach, making it clear that simply starting review proceedings does not automatically give access to every internal record a public body holds.
What the court found
The Supreme Court of Appeal distinguished a decision to investigate and one that has direct legal consequences. A regulatory investigation by itself is just a step to gather information, not to determine guilt or liability.
Judge Makgoka emphasised that the FSCA’s decision neither determined culpability nor adversely affected rights. That was central to the court’s finding that the pension fund was not automatically entitled to disclosure of the investigation record.
The court also noted that legal processes should not be used to gain broad access to internal records where the underlying decision has not yet resulted in action that directly affects rights or has legal consequences.
Get your news on the go. Clickhere to follow the Conviction WhatsApp channel.
