Brown and Others v Financial Service Board and Others (679/2007) [2013] ZAWCHC 142 (20 September 2013)

Brown and Others v Financial Service Board and Others (679/2007) [2013] ZAWCHC 142 (20 September 2013)

The applicants failed to establish any grounds for rescission of the curatorship order, as they did not prove fraud or iustus error. The inspection report, even if containing inaccuracies, was known to the applicants at the time and not challenged when the curatorship was ordered. The curatorship order was justified by material findings of regulatory non-compliance, and the applicants' allegations of misconduct were comprehensively refuted by the curators and not supported by credible evidence. The application was fatally delayed, lacked locus standi, and constituted an abuse of process. The applicants were not permitted to withdraw the application post-set down without consent or leave,...

Citation
[2013] ZAWCHC 142
Parties
Applicant: Joseph Arthur Walter Brown; Applicant: Carter & Kloof (Pty) Ltd; Applicant: Martin James Van Schalkwyk; Applicant: JAW Brown Family Trust; Applicant: Z C Brown Family Trust; Applicant: Antheru Mandated Invest; Applicant: Brown Brothers Holding; Respondent: Financial Services Board; Respondent: Fidentia Holdings (Pty) Limited; Respondent: Fidentia Asset Management (Pty) Ltd; Respondent: Bramber Alternative Investments (Pty) Ltd; Respondent: Dines Chandra Manilal Gihwala N.O.; Respondent: George Nicholas Papadakis N.O.
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
20 September 2013
Case Number
679/2007
Procedural Posture
Review Application / Final Judgment After Opposed Application; Applicants Attempted Withdrawal Post Set Down, Refused by Court, Judgment Delivered on Merits.
Outcome
Application dismissed with costs on an attorney and client scale, including costs of two counsel where applicable.
Judges
D M Davis
Legal Topics
Curatorship, Rescission of Judgment, Abuse of Process, Punitive Costs, Financial Institutions Act, Locus Standi
Banking and Finance Civil Procedure Curatorship Rescission of Judgment Abuse of Process Punitive Costs Financial Institutions Act Locus Standi

Case Brief

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Parties

Joseph Arthur Walter Brown

Applicant

Carter & Kloof (Pty) Ltd

Applicant

Martin James Van Schalkwyk

Applicant

JAW Brown Family Trust

Applicant

Z C Brown Family Trust

Applicant

Antheru Mandated Invest

Applicant

Brown Brothers Holding

Applicant

Financial Services Board

Respondent

Fidentia Holdings (Pty) Limited

Respondent

Fidentia Asset Management (Pty) Ltd

Respondent

Bramber Alternative Investments (Pty) Ltd

Respondent

Dines Chandra Manilal Gihwala N.O.

Respondent

George Nicholas Papadakis N.O.

Respondent

Procedural Posture

Review Application / Final Judgment After Opposed Application; Applicants Attempted Withdrawal Post Set Down, Refused by Court, Judgment Delivered on Merits.

Legal Issues

  1. 1 Whether the applicants are entitled to rescind the curatorship order granted over the Fidentia companies.
  2. 2 Whether the applicants have shown fraud or iustus error sufficient to set aside a final judgment.
  3. 3 Whether the applicants have locus standi to bring the application.

Ratio Decidendi

The applicants failed to establish any grounds for rescission of the curatorship order, as they did not prove fraud or iustus error. The inspection report, even if containing inaccuracies, was known to the applicants at the time and not challenged when the curatorship was ordered. The curatorship order was justified by material findings of regulatory non-compliance, and the applicants' allegations of misconduct were comprehensively refuted by the curators and not supported by credible evidence. The application was fatally delayed, lacked locus standi, and constituted an abuse of process. The applicants were not permitted to withdraw the application post-set down without consent or leave,...

Court Disposition

Application dismissed with costs on an attorney and client scale, including costs of two counsel where applicable.

Orders

  • The application is refused with costs, such costs to include the costs occasioned by the employment of two counsel, where applicable.
  • The applicants are ordered jointly and severally to pay the costs of the first respondent and the first and second intervening respondents, i.e., the curators, on the scale as between attorney and client.