Financial Services Board v Barthram and Another (20207/2014) [2015] ZASCA 96; [2015] 3 All SA 665 (SCA); 2018 (1) SA 139 (SCA) (1 June 2015)

Financial Services Board v Barthram and Another (20207/2014) [2015] ZASCA 96; [2015] 3 All SA 665 (SCA); 2018 (1) SA 139 (SCA) (1 June 2015)

The Supreme Court of Appeal held that debarment under section 14(1) of the Financial Advisory and Intermediary Services Act 37 of 2002 precludes a representative from rendering financial services on an industry-wide basis, not merely for the debarring provider. The court found that the High Court's interpretation was incorrect and would undermine the regulatory regime and public protection. Furthermore, the court determined that Discovery Life Ltd failed to observe basic principles of procedural fairness in debarring Mr Barthram, as he was not given a fair opportunity to respond to the allegations against him. The court set aside the debarment decision and confirmed that such decisions...

Citation
[2015] ZASCA 96
Parties
Appellant: Financial Services Board; Respondent: Percy George Edward Barthram; Respondent: Discovery Life Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 June 2015
Case Number
20207/2014
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria
Outcome
Appeal by the Financial Services Board upheld; appeal by Mr Barthram upheld; orders of the High Court set aside and replaced.
Judges
Ponnan, Cachalia, Leach, Dambuza, Gorven
Legal Topics
Debarment of Representatives, Fit and Proper Requirements, Procedural Fairness, Financial Services Regulation, Audi Alteram Partem, Review Under Paja
Administrative Law Banking and Finance Debarment of Representatives Fit and Proper Requirements Procedural Fairness Financial Services Regulation Audi Alteram Partem Review Under Paja

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Parties

Financial Services Board

Appellant

Percy George Edward Barthram

Respondent

Discovery Life Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria

Legal Issues

  1. 1 Whether debarment under section 14(1) of the Financial Advisory and Intermediary Services Act 37 of 2002 precludes a representative from rendering financial services on an industry-wide basis.
  2. 2 Whether Discovery Life Ltd's decision to debar Mr Barthram was procedurally fair and lawful.
  3. 3 Whether the debarment process complied with the requirements of the Promotion of Administrative Justice Act (PAJA) and common law principles of fairness.

Ratio Decidendi

The Supreme Court of Appeal held that debarment under section 14(1) of the Financial Advisory and Intermediary Services Act 37 of 2002 precludes a representative from rendering financial services on an industry-wide basis, not merely for the debarring provider. The court found that the High Court's interpretation was incorrect and would undermine the regulatory regime and public protection. Furthermore, the court determined that Discovery Life Ltd failed to observe basic principles of procedural fairness in debarring Mr Barthram, as he was not given a fair opportunity to respond to the allegations against him. The court set aside the debarment decision and confirmed that such decisions...

Court Disposition

Appeal by the Financial Services Board upheld; appeal by Mr Barthram upheld; orders of the High Court set aside and replaced.

Orders

  • The interim order issued against the Financial Services Board on 18 September 2012 is set aside and the application against it is dismissed.
  • The decision taken by Discovery Life Ltd to debar Mr Barthram in terms of section 14(1) of FAIS is set aside.