Basson v Associated Portfolio Solutions (Pty) Ltd and Others (16224/2017) [2018] ZAWCHC 184 (14 December 2018)

Basson v Associated Portfolio Solutions (Pty) Ltd and Others (16224/2017) [2018] ZAWCHC 184 (14 December 2018)

The court found that the debarment decisions taken by the respondents were procedurally unfair and unlawful. The applicant was not afforded a reasonable opportunity to make representations regarding his proposed debarment, and the disciplinary enquiry did not address the statutory fit and proper requirements under the FAIS Act. The majority directors were embroiled in litigation with the applicant and stood to benefit from his debarment, resulting in actual or perceived bias and a breach of the rule against being a judge in one's own cause. The debarment process failed to comply with the audi alteram partem rule and the requirements of PAJA and the Constitution. The counter-application...

Citation
[2018] ZAWCHC 184
Parties
Applicant: Pieter Willem Basson; Respondent: Associated Portfolio Solutions (Pty) Ltd; Respondent: Pentagon Financial Solutions (Pretoria) (Pty) Ltd; Respondent: Moonstone Compliance (Pty) Ltd; Respondent: Registrar of Financial Services Providers
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
14 December 2018
Case Number
16224/2017
Procedural Posture
Review Application / Final Judgment on Review and Counter Application
Outcome
The review application is granted; the debarment decisions are set aside. The counter-application is dismissed.
Judges
Sievers
Legal Topics
Promotion of Administrative Justice Act, Fit and Proper Requirements, Procedural Fairness, Debarment of Representatives, Conflict of Interest, Audi Alteram Partem
Administrative Law Commercial and Corporate Promotion of Administrative Justice Act Fit and Proper Requirements Procedural Fairness Debarment of Representatives Conflict of Interest Audi Alteram Partem

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Parties

Pieter Willem Basson

Applicant

Associated Portfolio Solutions (Pty) Ltd

Respondent

Pentagon Financial Solutions (Pretoria) (Pty) Ltd

Respondent

Moonstone Compliance (Pty) Ltd

Respondent

Registrar of Financial Services Providers

Respondent

Procedural Posture

Review Application / Final Judgment on Review and Counter Application

Legal Issues

  1. 1 Whether the debarment of the applicant as a representative and key individual under section 14(1) of the FAIS Act was procedurally fair and lawful.
  2. 2 Whether the disciplinary enquiry and subsequent debarment complied with the requirements of PAJA and the Constitution.
  3. 3 Whether the majority directors were biased or acted as judges in their own cause when deciding to debar the applicant.

Ratio Decidendi

The court found that the debarment decisions taken by the respondents were procedurally unfair and unlawful. The applicant was not afforded a reasonable opportunity to make representations regarding his proposed debarment, and the disciplinary enquiry did not address the statutory fit and proper requirements under the FAIS Act. The majority directors were embroiled in litigation with the applicant and stood to benefit from his debarment, resulting in actual or perceived bias and a breach of the rule against being a judge in one's own cause. The debarment process failed to comply with the audi alteram partem rule and the requirements of PAJA and the Constitution. The counter-application...

Court Disposition

The review application is granted; the debarment decisions are set aside. The counter-application is dismissed.

Orders

  • The decision taken by Associated Portfolio Solutions (Pty) Ltd on 17 May 2017 to debar the applicant in terms of section 14(1) of the FAIS Act is reviewed and set aside.
  • The decision taken by Pentagon Financial Solutions (Pretoria) (Pty) Ltd on 17 May 2017 to debar the applicant in terms of section 14(1) of the FAIS Act is reviewed and set aside.