Nel v Ncongwane and Others (99788/15) [2019] ZAGPPHC 508 (20 September 2019)

Nel v Ncongwane and Others (99788/15) [2019] ZAGPPHC 508 (20 September 2019)

The court held that the Appeal Board was authorised to apply common law principles in addition to the FAIS Act and Code of Conduct, as both the Ombud and the Appeal Board are required to consider the contractual and other legal relationships between the parties, which may necessitate reference to common law. The statutory framework does not exclude the application of common law, and the argument that the Appeal Board acted outside its powers is without merit. The Appeal Board did not substitute its own decision for that of the Ombud; it merely dismissed the appeal, leaving the Ombud's determination intact. The Potgieter case was distinguished on its facts and found not applicable. The...

Citation
[2019] ZAGPPHC 508
Parties
Applicant: Andries Petrus Nel; Respondent: A T Ncongwane; Respondent: J Pema; Respondent: L Mskhubela; Respondent: Susan Mellet; Respondent: Jacobus Johannes Mellet
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 September 2019
Case Number
99788/15
Procedural Posture
Review Application / High Court Judgment on Review of Administrative Action
Outcome
Application dismissed with costs.
Judges
D S Fourie
Legal Topics
Promotion of Administrative Justice Act, Financial Services Regulation, Duty of Care, Jurisdiction of Ombud, Appeal Board Powers
Administrative Law Banking and Finance Promotion of Administrative Justice Act Financial Services Regulation Duty of Care Jurisdiction of Ombud Appeal Board Powers

Case Brief

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Parties

Andries Petrus Nel

Applicant

A T Ncongwane

Respondent

J Pema

Respondent

L Mskhubela

Respondent

Susan Mellet

Respondent

Jacobus Johannes Mellet

Respondent

Procedural Posture

Review Application / High Court Judgment on Review of Administrative Action

Legal Issues

  1. 1 Whether the Appeal Board was authorised to apply common law principles in addition to the FAIS Act and Code of Conduct.
  2. 2 Whether the Appeal Board unlawfully substituted its own decision for that of the Ombud.
  3. 3 Whether the applicant was bound by the FAIS Act and Code of Conduct despite not being a licensed financial services provider.

Ratio Decidendi

The court held that the Appeal Board was authorised to apply common law principles in addition to the FAIS Act and Code of Conduct, as both the Ombud and the Appeal Board are required to consider the contractual and other legal relationships between the parties, which may necessitate reference to common law. The statutory framework does not exclude the application of common law, and the argument that the Appeal Board acted outside its powers is without merit. The Appeal Board did not substitute its own decision for that of the Ombud; it merely dismissed the appeal, leaving the Ombud's determination intact. The Potgieter case was distinguished on its facts and found not applicable. The...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.