Executive Officer: Financial Services Board v Dynamic Wealth Ltd and Others (888/10) [2011] ZASCA 193; 2012 (1) SA 453 (SCA); [2012] 1 All SA 135 (SCA) (15 November 2011)

Executive Officer: Financial Services Board v Dynamic Wealth Ltd and Others (888/10) [2011] ZASCA 193; 2012 (1) SA 453 (SCA); [2012] 1 All SA 135 (SCA) (15 November 2011)

The Supreme Court of Appeal held that the court below erred in excluding the inspectors' report and annexures from evidence, as they were properly incorporated and served. The evidence established serious regulatory breaches and improper conduct by the Dynamic Wealth group, which would have justified the appointment of curators at the time the application was brought. However, due to subsequent changes—including the withdrawal of licences, cessation of business activities, and appointment of independent directors—the court found that curatorship was no longer desirable or permissible, as there was no business left to manage. The appeal was not moot, as the judgment clarified important...

Citation
[2011] ZASCA 193
Parties
Appellant: Executive Officer of the Financial Services Board; Respondent: Dynamic Wealth Ltd; Respondent: Dynamic Wealth Management (Pty) Ltd; Respondent: Dynamic Wealth Stockbrokers (Pty) Ltd; Respondent: The Bridging Factory (Pty) Ltd; Respondent: Specialist Income Limited; Respondent: Associations known as Dynamic Wealth Investment Association, Retirement Fund Association, Multi Manager Association, Kwanda Association, MFI Association and SASEP Association
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
15 November 2011
Case Number
888/10
Procedural Posture
Civil Appeal / Appeal From North Gauteng High Court, Pretoria
Outcome
Appeal upheld; order of the court below set aside; respondents ordered to pay the applicant's costs, including costs of two counsel, jointly and severally.
Judges
Harms, Van Heerden, Malan, Wallis, Petse
Legal Topics
Curatorship, Admissibility of Evidence, Collective Investment Schemes, Financial Services Regulation, Statutory Interpretation, Judicial Review
Banking and Finance Administrative Law Civil Procedure Curatorship Admissibility of Evidence Collective Investment Schemes Financial Services Regulation Statutory Interpretation +1 more

Case Brief

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Parties

Executive Officer of the Financial Services Board

Appellant

Dynamic Wealth Ltd

Respondent

Dynamic Wealth Management (Pty) Ltd

Respondent

Dynamic Wealth Stockbrokers (Pty) Ltd

Respondent

The Bridging Factory (Pty) Ltd

Respondent

Specialist Income Limited

Respondent

Associations known as Dynamic Wealth Investment Association, Retirement Fund Association, Multi Manager Association, Kwanda Association, MFI Association and SASEP Association

Respondent

Procedural Posture

Civil Appeal / Appeal From North Gauteng High Court, Pretoria

Legal Issues

  1. 1 Whether the Registrar established good cause for the appointment of curators under section 5(1) of the Financial Institutions (Protection of Funds) Act.
  2. 2 Whether the inspectors' report and its annexures were admissible as evidence in support of the application.
  3. 3 Whether the business of the respondents required curatorship at the time of the appeal, given changed circumstances.

Ratio Decidendi

The Supreme Court of Appeal held that the court below erred in excluding the inspectors' report and annexures from evidence, as they were properly incorporated and served. The evidence established serious regulatory breaches and improper conduct by the Dynamic Wealth group, which would have justified the appointment of curators at the time the application was brought. However, due to subsequent changes—including the withdrawal of licences, cessation of business activities, and appointment of independent directors—the court found that curatorship was no longer desirable or permissible, as there was no business left to manage. The appeal was not moot, as the judgment clarified important...

Court Disposition

Appeal upheld; order of the court below set aside; respondents ordered to pay the applicant's costs, including costs of two counsel, jointly and severally.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • The order of the court below is set aside and replaced by an order that the respondents pay the applicant’s costs, including the costs of two counsel.