Mamepe Capital (Pty) Ltd and Another v Financial Services Tribunal and Another (93773/2019) [2021] ZAGPPHC 148 (29 January 2021)

Mamepe Capital (Pty) Ltd and Another v Financial Services Tribunal and Another (93773/2019) [2021] ZAGPPHC 148 (29 January 2021)

The court held that section 144(3)(e) of the Financial Sector Regulation Act empowers the FSCA to issue restorative directives, including repayment of monies, to remedy the effects of contraventions of financial sector laws. The applicants admitted to publishing false statements and facilitating fraudulent transactions, causing pecuniary loss to SME Bank, which was a financial customer under the Act. The court found the applicants' arguments regarding lack of authority, reasonableness, and the status of the bank as a financial customer to be without merit. The FSCA's directive was rational, reasonable, and consistent with the statutory objectives of protecting financial customers and...

Citation
[2021] ZAGPPHC 148
Parties
Applicant: Mamepe Capital (Pty) Ltd; Applicant: Mauwane Kotane; Respondent: Financial Services Tribunal; Respondent: Financial Sector Conduct Authority
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 January 2021
Case Number
93773/2019
Procedural Posture
Review Application / Judgment on Review Application After Dismissal by Tribunal
Outcome
Application dismissed with costs, including costs of senior counsel.
Judges
Swanepoel
Legal Topics
Financial Sector Regulation Act, Promotion of Administrative Justice Act, Remedial Directives, Misleading Statements, Repayment Order, Judicial Review
Administrative Law Banking and Finance Commercial and Corporate Financial Sector Regulation Act Promotion of Administrative Justice Act Remedial Directives Misleading Statements Repayment Order +1 more

Case Brief

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Parties

Mamepe Capital (Pty) Ltd

Applicant

Mauwane Kotane

Applicant

Financial Services Tribunal

Respondent

Financial Sector Conduct Authority

Respondent

Procedural Posture

Review Application / Judgment on Review Application After Dismissal by Tribunal

Legal Issues

  1. 1 Whether the FSCA was authorised under section 144(3)(e) of the Financial Sector Regulation Act to direct repayment of R10 million to SME Bank.
  2. 2 Whether the FSCA's directive was irrational or unreasonable under PAJA.
  3. 3 Whether the bank was a 'financial customer' within the meaning of the Act.

Ratio Decidendi

The court held that section 144(3)(e) of the Financial Sector Regulation Act empowers the FSCA to issue restorative directives, including repayment of monies, to remedy the effects of contraventions of financial sector laws. The applicants admitted to publishing false statements and facilitating fraudulent transactions, causing pecuniary loss to SME Bank, which was a financial customer under the Act. The court found the applicants' arguments regarding lack of authority, reasonableness, and the status of the bank as a financial customer to be without merit. The FSCA's directive was rational, reasonable, and consistent with the statutory objectives of protecting financial customers and...

Court Disposition

Application dismissed with costs, including costs of senior counsel.

Orders

  • The application is dismissed with costs, including the cost of senior counsel.
  • The Registrar of Court is requested to forward this judgment to the Director of Public Prosecutions, Johannesburg for consideration.