Celliers v Warwick Invest (Pty) Ltd and Others (85389/16) [2019] ZAGPPHC 540 (31 October 2019)

Celliers v Warwick Invest (Pty) Ltd and Others (85389/16) [2019] ZAGPPHC 540 (31 October 2019)

The court found that Warwick Specialists (Pty) Ltd failed to follow a fair administrative process in debarring the applicant. The debarment decision was made automatically following dismissal for misconduct, without giving the applicant a reasonable opportunity to make representations regarding her honesty and integrity. The disciplinary hearing did not address the fit and proper requirements for debarment, and the applicant was denied access to relevant information and documents necessary for her defence. The absence of an internal review process at the time further prejudiced the applicant. The court held that the debarment was procedurally unfair and arbitrary, as not all relevant...

Citation
[2019] ZAGPPHC 540
Parties
Applicant: Desiree Kim Celliers; Respondent: Warwick Invest (Pty) Ltd; Respondent: Warwick Specialists (Pty) Ltd; Respondent: Warwick Wealth (Pty) Ltd; Respondent: Registrar of Financial Services Providers
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
31 October 2019
Case Number
85389/16
Procedural Posture
Review Application / Judgment
Outcome
The decision of Warwick Specialists (Pty) Ltd to debar the applicant is reviewed and set aside. Costs of the application are awarded against the second respondent.
Judges
Francis-Subbiah
Legal Topics
Debarment of Financial Services Representative, Fit and Proper Requirements, Procedural Fairness, Promotion of Administrative Justice Act, Financial Advisory and Intermediary Services Act
Administrative Law Banking and Finance Debarment of Financial Services Representative Fit and Proper Requirements Procedural Fairness Promotion of Administrative Justice Act Financial Advisory and Intermediary Services Act

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Parties

Desiree Kim Celliers

Applicant

Warwick Invest (Pty) Ltd

Respondent

Warwick Specialists (Pty) Ltd

Respondent

Warwick Wealth (Pty) Ltd

Respondent

Registrar of Financial Services Providers

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the debarment of the applicant by Warwick Specialists (Pty) Ltd in terms of section 14(1) of the FAIS Act was procedurally fair and lawful.
  2. 2 Whether the applicant is entitled to condonation for the late filing of the review application under PAJA.
  3. 3 Whether Warwick followed a fair administrative process in debarring the applicant.

Ratio Decidendi

The court found that Warwick Specialists (Pty) Ltd failed to follow a fair administrative process in debarring the applicant. The debarment decision was made automatically following dismissal for misconduct, without giving the applicant a reasonable opportunity to make representations regarding her honesty and integrity. The disciplinary hearing did not address the fit and proper requirements for debarment, and the applicant was denied access to relevant information and documents necessary for her defence. The absence of an internal review process at the time further prejudiced the applicant. The court held that the debarment was procedurally unfair and arbitrary, as not all relevant...

Court Disposition

The decision of Warwick Specialists (Pty) Ltd to debar the applicant is reviewed and set aside. Costs of the application are awarded against the second respondent.

Orders

  • The decision of the second respondent taken on about 30 March 2014 to debar Ms Desiree Kim Celliers in accordance with section 14(1) of the Financial Advisory and Intermediary Services Act 37 of 2002 is reviewed and set aside.
  • The second respondent is ordered to pay the costs of the application.