Peri Formwork Scaffolding Engineering (Pty) Ltd v Broad-Based Black Economic and Others (20479/21) [2024] ZAGPPHC 359 (19 April 2024)

Peri Formwork Scaffolding Engineering (Pty) Ltd v Broad-Based Black Economic and Others (20479/21) [2024] ZAGPPHC 359 (19 April 2024)

The court found that the Commission's findings dated 17 December 2020 were final and not preliminary, as evidenced by the language of the correspondence and the absence of further engagement after the applicant's response. The findings had a direct external legal effect and adversely affected the applicant's rights, thus constituting administrative action under PAJA. The Commission's misunderstanding of the applicant's ownership structure and the operation of the trust led to findings based on irrelevant considerations and errors of law. The Commission failed to follow proper procedure, including not affording a formal hearing as required by the B-BBEE Act and its regulations. The court...

Citation
[2024] ZAGPPHC 359
Parties
Applicant: Peri Formwork Scaffolding Engineering (Pty) Ltd; Respondent: Broad-Based Black Economic Empowerment Commissioner; Respondent: Broad-Based Black Economic Empowerment Commission; Respondent: Fasco Holdings (Pty) Ltd; Respondent: Geo Holdings (Pty) Ltd; Respondent: Fasco Empowerment Investments (Pty) Ltd; Respondent: Trustees of the Fasco Empowerment Trust
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 April 2024
Case Number
20479/21
Procedural Posture
Review Application / Judgment After Hearing on Merits
Judges
M P Motha
Legal Topics
Promotion of Administrative Justice Act, Fronting Practice, Bbbee Compliance, Trust Law, Procedural Fairness, Company Structure
Administrative Law Commercial and Corporate Promotion of Administrative Justice Act Fronting Practice Bbbee Compliance Trust Law Procedural Fairness Company Structure

Case Brief

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Parties

Peri Formwork Scaffolding Engineering (Pty) Ltd

Applicant

Broad-Based Black Economic Empowerment Commissioner

Respondent

Broad-Based Black Economic Empowerment Commission

Respondent

Fasco Holdings (Pty) Ltd

Respondent

Geo Holdings (Pty) Ltd

Respondent

Fasco Empowerment Investments (Pty) Ltd

Respondent

Trustees of the Fasco Empowerment Trust

Respondent

Procedural Posture

Review Application / Judgment After Hearing on Merits

Legal Issues

  1. 1 Whether the findings of the Broad-Based Black Economic Empowerment Commission dated 17 December 2020 were preliminary or final.
  2. 2 Whether the Commission's findings constituted administrative action under PAJA.
  3. 3 Whether the Commission's findings were procedurally and substantively fair.

Ratio Decidendi

The court found that the Commission's findings dated 17 December 2020 were final and not preliminary, as evidenced by the language of the correspondence and the absence of further engagement after the applicant's response. The findings had a direct external legal effect and adversely affected the applicant's rights, thus constituting administrative action under PAJA. The Commission's misunderstanding of the applicant's ownership structure and the operation of the trust led to findings based on irrelevant considerations and errors of law. The Commission failed to follow proper procedure, including not affording a formal hearing as required by the B-BBEE Act and its regulations. The court...