Associated Portfolio Solutions (Pty) Ltd and Another v Basson and Others (16224/2017) [2019] ZAWCHC 11 (1 February 2019)

Associated Portfolio Solutions (Pty) Ltd and Another v Basson and Others (16224/2017) [2019] ZAWCHC 11 (1 February 2019)

The court found that the directors of the applicants were required to recuse themselves from the debarment enquiry due to a reasonable apprehension of bias, as they had acted as witnesses in the disciplinary enquiry and had a direct financial interest in the outcome. The First Respondent was not afforded an impartial hearing regarding his fitness for office under the FAIS Act, and the disciplinary enquiry did not suffice for this purpose. The applicants' arguments regarding fairness and technicality were rejected, as the procedural requirements for impartiality were not met. Regarding the counter application, the court held that there is no legislative basis obliging the FSB to consider...

Citation
[2019] ZAWCHC 11
Parties
Applicant: Associated Portfolio Solutions (Pty) Ltd; Applicant: Pentagon Financial Solutions (Pretoria) (Pty) Ltd; Respondent: Pieter Willem Basson; Respondent: Registrar of Financial Services Providers; Respondent: Moostone Compliance (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
1 February 2019
Case Number
16224/2017
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment in Convention
Outcome
Application for leave to appeal dismissed with costs, including costs of two counsel where briefed.
Judges
Sievers
Legal Topics
Reasonable Apprehension of Bias, Recusal of Decision Makers, Fair Administrative Action, Debarment Proceedings, Fit and Proper Requirements
Administrative Law Civil Procedure Reasonable Apprehension of Bias Recusal of Decision Makers Fair Administrative Action Debarment Proceedings Fit and Proper Requirements

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 3 Party arguments 2
Sign in to unlock

Parties

Associated Portfolio Solutions (Pty) Ltd

Applicant

Pentagon Financial Solutions (Pretoria) (Pty) Ltd

Applicant

Pieter Willem Basson

Respondent

Registrar of Financial Services Providers

Respondent

Moostone Compliance (Pty) Ltd

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment in Convention

Legal Issues

  1. 1 Whether the directors of the applicants were required to recuse themselves from the debarment enquiry due to a reasonable apprehension of bias.
  2. 2 Whether the First Respondent was afforded an impartial hearing regarding his fitness for office under the FAIS Act.
  3. 3 Whether the Financial Services Board (FSB) was obliged to apply its mind to the reappointment of the First Respondent as a fit and proper person.

Ratio Decidendi

The court found that the directors of the applicants were required to recuse themselves from the debarment enquiry due to a reasonable apprehension of bias, as they had acted as witnesses in the disciplinary enquiry and had a direct financial interest in the outcome. The First Respondent was not afforded an impartial hearing regarding his fitness for office under the FAIS Act, and the disciplinary enquiry did not suffice for this purpose. The applicants' arguments regarding fairness and technicality were rejected, as the procedural requirements for impartiality were not met. Regarding the counter application, the court held that there is no legislative basis obliging the FSB to consider...

Court Disposition

Application for leave to appeal dismissed with costs, including costs of two counsel where briefed.

Orders

  • The application for leave to appeal is dismissed.
  • Costs are awarded against the applicants, including the costs of two counsel where briefed.