Becker and Others v Financial Services Conduct Authority and Others (23807/2020) [2022] ZAGPPHC 22 (1 February 2022)

Becker and Others v Financial Services Conduct Authority and Others (23807/2020) [2022] ZAGPPHC 22 (1 February 2022)

The court found that the applicants failed to establish that sections 154, 167, and 231 of the Financial Sector Regulation Act are unconstitutional. Section 154 prescribes procedural requirements before a debarment order but does not itself debar anyone; section 153, which is not challenged, is the operative provision. The right to fair administrative action under section 33 is given effect by PAJA, which applies to all administrative actions by financial sector regulators, and the applicants must rely on PAJA rather than direct constitutional challenge. The right to a hearing before an independent tribunal under section 34 only arises after a final decision is made, and the statutory...

Citation
[2022] ZAGPPHC 22
Parties
Applicant: Ilse Becker; Applicant: Eugene Becker; Applicant: Fusion Guarantees (Pty) Ltd; Respondent: Financial Services Conduct Authority; Respondent: Minister Tito Titus Mboweni, Minister of Finance of the Republic of South Africa; Respondent: National Credit Regulator
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 February 2022
Case Number
23807/2020
Procedural Posture
Constitutional Application / Judgment on Merits
Outcome
Application dismissed with costs.
Judges
Ncongwane
Legal Topics
Financial Sector Regulation Act, Bill of Rights Limitation, Promotion of Administrative Justice Act, Debarment Orders, Administrative Penalties, Access to Court
Constitutional Law Administrative Law Banking and Finance Financial Sector Regulation Act Bill of Rights Limitation Promotion of Administrative Justice Act Debarment Orders Administrative Penalties +1 more

Case Brief

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Parties

Ilse Becker

Applicant

Eugene Becker

Applicant

Fusion Guarantees (Pty) Ltd

Applicant

Financial Services Conduct Authority

Respondent

Minister Tito Titus Mboweni, Minister of Finance of the Republic of South Africa

Respondent

National Credit Regulator

Respondent

Procedural Posture

Constitutional Application / Judgment on Merits

Legal Issues

  1. 1 Whether sections 154, 167 and 231 of the Financial Sector Regulation Act 9 of 2017 are unconstitutional.
  2. 2 Whether the impugned sections violate the rights to freedom of trade, occupation and profession (section 22), fair administrative action (section 33), and access to courts (section 34) under the Constitution.
  3. 3 Whether the lack of automatic suspension of debarment orders pending reconsideration violates constitutional rights.

Ratio Decidendi

The court found that the applicants failed to establish that sections 154, 167, and 231 of the Financial Sector Regulation Act are unconstitutional. Section 154 prescribes procedural requirements before a debarment order but does not itself debar anyone; section 153, which is not challenged, is the operative provision. The right to fair administrative action under section 33 is given effect by PAJA, which applies to all administrative actions by financial sector regulators, and the applicants must rely on PAJA rather than direct constitutional challenge. The right to a hearing before an independent tribunal under section 34 only arises after a final decision is made, and the statutory...

Court Disposition

Application dismissed with costs.

Orders

  • The applicants' application is dismissed with costs, including the costs of two counsel where so employed.