Ombud for Financial Services Providers v CS Brokers CC and Others (781/2020) [2021] ZASCA 117 (17 September 2021)

Ombud for Financial Services Providers v CS Brokers CC and Others (781/2020) [2021] ZASCA 117 (17 September 2021)

The Supreme Court of Appeal found that the Ombud failed to exercise her discretion under section 27(3)(c) of the Financial Advisory and Intermediary Services Act. Instead of considering the specific facts and disputes in the matter, the Ombud applied a predetermined policy by stating that her office does not hold hearings. This amounted to a failure to exercise the discretion conferred by statute. The Court held that when a statutory discretion is not exercised, the decision is reviewable and must be set aside. The appeal was dismissed because the Ombud's failure to exercise discretion was fatal to her decision, and the High Court was correct in reviewing and setting aside the Ombud's and...

Citation
[2021] ZASCA 117
Parties
Appellant: Ombud for Financial Services Providers; Respondent: CS Brokers CC; Respondent: Emile Storm; Respondent: L T C Harms N O; Respondent: Z Mabhoza N O; Respondent: G Madlanga N O; Respondent: J B Wallace
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
17 September 2021
Case Number
781/2020
Procedural Posture
Review Application / Appeal From Gauteng Division of the High Court, Pretoria
Outcome
Appeal dismissed with costs, including costs of two counsel wherever so employed.
Judges
Ponnan, Mathopo, Molemela, Mbatha, Gorven
Legal Topics
Financial Advisory and Intermediary Services Act, Ombud Discretion, Review of Administrative Action, Oral Evidence in Administrative Proceedings
Administrative Law Banking and Finance Financial Advisory and Intermediary Services Act Ombud Discretion Review of Administrative Action Oral Evidence in Administrative Proceedings

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Ombud for Financial Services Providers

Appellant

CS Brokers CC

Respondent

Emile Storm

Respondent

L T C Harms N O

Respondent

Z Mabhoza N O

Respondent

G Madlanga N O

Respondent

J B Wallace

Respondent

Procedural Posture

Review Application / Appeal From Gauteng Division of the High Court, Pretoria

Legal Issues

  1. 1 Did the Ombud for Financial Services Providers properly exercise her discretion under section 27(3)(c) of the Financial Advisory and Intermediary Services Act when refusing to refer the complaint to court or to hold a hearing for oral evidence?
  2. 2 Was the Ombud's decision to refuse the application for oral evidence or referral to court reviewable on the grounds of failure to exercise discretion?

Ratio Decidendi

The Supreme Court of Appeal found that the Ombud failed to exercise her discretion under section 27(3)(c) of the Financial Advisory and Intermediary Services Act. Instead of considering the specific facts and disputes in the matter, the Ombud applied a predetermined policy by stating that her office does not hold hearings. This amounted to a failure to exercise the discretion conferred by statute. The Court held that when a statutory discretion is not exercised, the decision is reviewable and must be set aside. The appeal was dismissed because the Ombud's failure to exercise discretion was fatal to her decision, and the High Court was correct in reviewing and setting aside the Ombud's and...

Court Disposition

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

Orders

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