Pityana v ABSA Group Limited and Others [2023] ZAGPPHC 342; 2024 (1) SA 491 (GP) (10 May 2023)

Pityana v ABSA Group Limited and Others [2023] ZAGPPHC 342; 2024 (1) SA 491 (GP) (10 May 2023)

The court held that the decision by the board of ABSA Bank to remove Mr Pityana as a director under section 71(5) of the Companies Act is not administrative action as defined by PAJA or the Constitution. The decision is commercial or managerial in nature, not governmental or bureaucratic, and does not involve the exercise of public power or function. Consequently, Rule 53, which is designed for the review of decisions of inferior courts, tribunals, boards, or officers performing judicial, quasi-judicial, or administrative functions, does not apply to this review. The invocation of Rule 53 by the applicant is therefore irregular and non-compliant with the Uniform Rules of Court. The court...

Citation
[2023] ZAGPPHC 342
Parties
Applicant: Sipho Mila Pityana; Respondent: ABSA Group Limited; Respondent: ABSA Bank Limited; Respondent: Prudential Authority
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 May 2023
Case Number
64258 / 2021
Procedural Posture
Review Application / Interlocutory Application to Declare Use of Rule 53 Irregular in Review Under Section 71(5) of the Companies Act
Outcome
Application granted. The applicant's use of Rule 53 in the review application is declared irregular and non-compliant with the Uniform Rules.
Judges
M Snyman, AJ
Legal Topics
Removal of Director, Companies Act Section 71, Uniform Rule 53, Administrative Action Definition, Common Law Review
Civil Procedure Commercial and Corporate Removal of Director Companies Act Section 71 Uniform Rule 53 Administrative Action Definition Common Law Review

Case Brief

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Parties

Sipho Mila Pityana

Applicant

ABSA Group Limited

Respondent

ABSA Bank Limited

Respondent

Prudential Authority

Respondent

Procedural Posture

Review Application / Interlocutory Application to Declare Use of Rule 53 Irregular in Review Under Section 71(5) of the Companies Act

Legal Issues

  1. 1 Whether the decision of a company's board to remove a director under section 71(5) of the Companies Act constitutes administrative action under PAJA.
  2. 2 Whether Uniform Rule 53 applies to review proceedings under section 71(5) of the Companies Act.
  3. 3 Whether the applicant's invocation of Rule 53 is an irregular step in the context of this review.

Ratio Decidendi

The court held that the decision by the board of ABSA Bank to remove Mr Pityana as a director under section 71(5) of the Companies Act is not administrative action as defined by PAJA or the Constitution. The decision is commercial or managerial in nature, not governmental or bureaucratic, and does not involve the exercise of public power or function. Consequently, Rule 53, which is designed for the review of decisions of inferior courts, tribunals, boards, or officers performing judicial, quasi-judicial, or administrative functions, does not apply to this review. The invocation of Rule 53 by the applicant is therefore irregular and non-compliant with the Uniform Rules of Court. The court...

Court Disposition

Application granted. The applicant's use of Rule 53 in the review application is declared irregular and non-compliant with the Uniform Rules.

Orders

  • It is declared that the applicant's review application dated 21 December 2021 constitutes an irregular step and is not in compliance with the Rules insofar as it invokes the provisions of Uniform Rule 53.
  • That portion of the Notice of Motion in the review application which invokes the provisions of Uniform Rule 53 is set aside or struck out.