Ilse Becker and Others v The Financial Services Conduct Authority and Others (454/2022) [2023] ZASCA 149; 2024 (2) SA 348 (SCA) (10 November 2023)

Ilse Becker and Others v The Financial Services Conduct Authority and Others (454/2022) [2023] ZASCA 149; 2024 (2) SA 348 (SCA) (10 November 2023)

The Supreme Court of Appeal held that the Financial Sector Regulation Act, properly interpreted, does not exclude the right of affected persons to make submissions on whether a contravention of a financial sector law has occurred. Section 154 requires the Authority to provide reasons and invite submissions on all matters relevant to a proposed debarment order, which necessarily includes the issue of contravention. Similarly, section 167 requires consideration of submissions relevant to the imposition of administrative penalties. Even if the Act did not expressly require such submissions, section 91 ensures that PAJA applies, thereby guaranteeing procedural fairness. The principle of...

Citation
[2023] ZASCA 149
Parties
Appellant: Ilse Becker; Appellant: Eugene Becker; Appellant: Fusion Guarantees (Pty) Ltd; Respondent: Financial Services Conduct Authority; Respondent: Enoch Godongwana (Minister of Finance); Respondent: National Credit Regulator; Respondent: Prudential Authority of South Africa
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
10 November 2023
Case Number
454/2022
Procedural Posture
Civil Appeal / Appeal From the Gauteng Division of the High Court, Pretoria
Outcome
Appeal dismissed with costs, including costs of two counsel where so employed.
Judges
Petse, Mothle, Meyer, Siwendu, Unterhalter
Legal Topics
Procedural Fairness, Financial Sector Regulation, Administrative Penalty, Debarment Order, Subsidiarity, Promotion of Administrative Justice Act
Constitutional Law Banking and Finance Administrative Law Procedural Fairness Financial Sector Regulation Administrative Penalty Debarment Order Subsidiarity +1 more

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Parties

Ilse Becker

Appellant

Eugene Becker

Appellant

Fusion Guarantees (Pty) Ltd

Appellant

Financial Services Conduct Authority

Respondent

Enoch Godongwana (Minister of Finance)

Respondent

National Credit Regulator

Respondent

Prudential Authority of South Africa

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether sections 154, 167 and 231 of the Financial Sector Regulation Act 9 of 2017 are unconstitutional and invalid.
  2. 2 Whether the Act fails to observe procedural fairness in deciding whether a person has contravened a financial sector law.
  3. 3 Whether the challenge to constitutional validity should be determined under s 33 of the Constitution or via PAJA due to subsidiarity.

Ratio Decidendi

The Supreme Court of Appeal held that the Financial Sector Regulation Act, properly interpreted, does not exclude the right of affected persons to make submissions on whether a contravention of a financial sector law has occurred. Section 154 requires the Authority to provide reasons and invite submissions on all matters relevant to a proposed debarment order, which necessarily includes the issue of contravention. Similarly, section 167 requires consideration of submissions relevant to the imposition of administrative penalties. Even if the Act did not expressly require such submissions, section 91 ensures that PAJA applies, thereby guaranteeing procedural fairness. The principle of...

Court Disposition

Appeal dismissed with costs, including costs of two counsel where so employed.

Orders

  • The appeal is dismissed with costs, such costs to include the costs of two counsel, where so employed.