Koch and Kruger Brokers CC and Another v Financial Sector Conduct Authority and Others (48799/19) [2024] ZAGPPHC 496 (30 May 2024)

Koch and Kruger Brokers CC and Another v Financial Sector Conduct Authority and Others (48799/19) [2024] ZAGPPHC 496 (30 May 2024)

The court held that the Ombud's determination is a civil judgment and not administrative action as defined by PAJA, and thus not subject to judicial review under section 6(1) of PAJA. The investigative process leading to the determination does not have direct external legal effect and is not reviewable under PAJA. The refusal by the Chairperson of the Financial Services Tribunal to grant leave to appeal is a quasi-judicial function, not administrative action, and is reviewable only under legality principles, which the applicants expressly disavowed. The applicants' case was confined to a PAJA review, and having failed to establish that any impugned action constituted administrative...

Citation
[2024] ZAGPPHC 496
Parties
Applicant: Koch and Kruger Brokers CC; Applicant: Deon Kruger; Respondent: Financial Sector Conduct Authority; Respondent: Ombud for Financial Services Providers; Respondent: Yvonne Mokgoro N.O; Respondent: Financial Services Tribunal; Respondent: George Baben; Respondent: Lucille Miriam Baben
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
30 May 2024
Case Number
48799/19
Procedural Posture
Review Application / Judgment on Application for Judicial Review Under PAJA
Outcome
Application for review dismissed with costs.
Judges
Moshoana
Legal Topics
Promotion of Administrative Justice Act, Financial Services Regulation, Ombud Determinations, Leave to Appeal, Judicial Review, Civil Judgment Enforcement
Administrative Law Banking and Finance Civil Procedure Promotion of Administrative Justice Act Financial Services Regulation Ombud Determinations Leave to Appeal Judicial Review +1 more

Case Brief

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Parties

Koch and Kruger Brokers CC

Applicant

Deon Kruger

Applicant

Financial Sector Conduct Authority

Respondent

Ombud for Financial Services Providers

Respondent

Yvonne Mokgoro N.O

Respondent

Financial Services Tribunal

Respondent

George Baben

Respondent

Lucille Miriam Baben

Respondent

Procedural Posture

Review Application / Judgment on Application for Judicial Review Under PAJA

Legal Issues

  1. 1 Whether the Ombud's determination constitutes administrative action reviewable under PAJA.
  2. 2 Whether the process leading to the Ombud's determination is reviewable under PAJA.
  3. 3 Whether the refusal by the Chairperson of the Financial Services Tribunal to grant leave to appeal is administrative action.

Ratio Decidendi

The court held that the Ombud's determination is a civil judgment and not administrative action as defined by PAJA, and thus not subject to judicial review under section 6(1) of PAJA. The investigative process leading to the determination does not have direct external legal effect and is not reviewable under PAJA. The refusal by the Chairperson of the Financial Services Tribunal to grant leave to appeal is a quasi-judicial function, not administrative action, and is reviewable only under legality principles, which the applicants expressly disavowed. The applicants' case was confined to a PAJA review, and having failed to establish that any impugned action constituted administrative...

Court Disposition

Application for review dismissed with costs.

Orders

  • The application is dismissed.
  • The applicants are to jointly and severally pay the costs of this application on a party and party scale to be taxed or settled on scale B, the one paying absolving the other.