Pather and Another v Financial Services Board and Others (57617/10) [2014] ZAGPPHC 303; [2014] 3 All SA 208 (GP); 2014 (9) BCLR 1082 (GP) (20 March 2014)

Pather and Another v Financial Services Board and Others (57617/10) [2014] ZAGPPHC 303; [2014] 3 All SA 208 (GP); 2014 (9) BCLR 1082 (GP) (20 March 2014)

The court held that the Enforcement Committee had jurisdiction to impose administrative penalties for contraventions of section 76 of the Securities Services Act, 36 of 2004, as the Act's provisions for administrative penalties operate independently of the criminal jurisdiction conferred on the High Court and Regional Court by section 79. The transitional provisions of section 78(4) of the 2008 Amendment Act preserved the Committee's jurisdiction for investigations and proceedings pending or instituted before the amendments took effect, including the applicants' matter. The Committee was entitled to apply the civil standard of proof, as its proceedings are administrative and not criminal...

Citation
[2014] ZAGPPHC 303
Parties
Applicant: Maslamon Theegarajan Pather; Applicant: Ah-Vest Limited; Respondent: Financial Services Board; Respondent: Enforcement Committee; Respondent: Minister of Finance (RSA)
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 March 2014
Case Number
57617/10
Procedural Posture
Review Application / Final Judgment on Review and Constitutional Challenge
Outcome
Application for review and constitutional challenge dismissed with costs, including costs of two counsel.
Judges
N F Kgomo
Legal Topics
Securities Regulation, Administrative Penalties, Jurisdiction of Statutory Bodies, Standard of Proof, Constitutional Review, Promotion of Administrative Justice Act
Administrative Law Commercial and Corporate Securities Regulation Administrative Penalties Jurisdiction of Statutory Bodies Standard of Proof Constitutional Review Promotion of Administrative Justice Act

Case Brief

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Parties

Maslamon Theegarajan Pather

Applicant

Ah-Vest Limited

Applicant

Financial Services Board

Respondent

Enforcement Committee

Respondent

Minister of Finance (RSA)

Respondent

Procedural Posture

Review Application / Final Judgment on Review and Constitutional Challenge

Legal Issues

  1. 1 Whether the Enforcement Committee had jurisdiction to impose administrative penalties for contraventions of section 76 of the Securities Services Act, 36 of 2004.
  2. 2 Whether the transitional provisions of section 78(4) of the Financial Services Laws General Amendment Act, 22 of 2008, deprived the Enforcement Committee of jurisdiction.
  3. 3 Whether the Enforcement Committee applied the correct standard of proof in its proceedings.

Ratio Decidendi

The court held that the Enforcement Committee had jurisdiction to impose administrative penalties for contraventions of section 76 of the Securities Services Act, 36 of 2004, as the Act's provisions for administrative penalties operate independently of the criminal jurisdiction conferred on the High Court and Regional Court by section 79. The transitional provisions of section 78(4) of the 2008 Amendment Act preserved the Committee's jurisdiction for investigations and proceedings pending or instituted before the amendments took effect, including the applicants' matter. The Committee was entitled to apply the civil standard of proof, as its proceedings are administrative and not criminal...

Court Disposition

Application for review and constitutional challenge dismissed with costs, including costs of two counsel.

Orders

  • The application for review of the Enforcement Committee's decision is dismissed.
  • The constitutional challenge to sections 102 to 105 of the Securities Services Act, 36 of 2004, as amended, is dismissed.