Potgieter v Howie NO and Others (50574/12) [2013] ZAGPPHC 313; 2014 (3) SA 336 (GP) (29 October 2013)

Potgieter v Howie NO and Others (50574/12) [2013] ZAGPPHC 313; 2014 (3) SA 336 (GP) (29 October 2013)

The court found that the Appeal Board acted ultra vires by substituting its own decision for that of the JSE, specifically by finding the applicants guilty of contravening section 5.69 read with section 5.82 of the Listing Requirements when the JSE had not charged or found them guilty of such. The enabling statute, section 26B(15) of the Financial Services Board Act, does not empower the Appeal Board to substitute new charges or findings beyond the scope of the original decision under appeal. Furthermore, the applicants were denied procedural fairness as they were not given adequate notice or an opportunity to respond to the new charge, violating the audi alteram partem principle and the...

Citation
[2013] ZAGPPHC 313
Parties
Applicant: Anton Daniel Potgieter; Applicant: James Charles Herbst; Respondent: CT Howie NO; Respondent: JD Pema NO; Respondent: DL Brooking NO; Respondent: Johannesburg Securities Exchange Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 October 2013
Case Number
50574/12
Procedural Posture
Review Application / High Court Review of Administrative Decision
Outcome
Application for review succeeded; paragraphs 3 and 4 of the Appeal Board's decision are reviewed and set aside.
Judges
BAQWA
Legal Topics
Ultra Vires, Procedural Fairness, Jse Listing Requirements, Promotion of Administrative Justice Act, Derivative Transactions, Natural Justice
Administrative Law Commercial and Corporate Ultra Vires Procedural Fairness Jse Listing Requirements Promotion of Administrative Justice Act Derivative Transactions Natural Justice

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Parties

Anton Daniel Potgieter

Applicant

James Charles Herbst

Applicant

CT Howie NO

Respondent

JD Pema NO

Respondent

DL Brooking NO

Respondent

Johannesburg Securities Exchange Limited

Respondent

Procedural Posture

Review Application / High Court Review of Administrative Decision

Legal Issues

  1. 1 Whether the Appeal Board acted ultra vires by substituting its own decision for that of the JSE.
  2. 2 Whether the applicants were denied procedural fairness and the audi alteram partem principle regarding the charge under section 5.82 of the Listing Requirements.
  3. 3 Whether the Appeal Board's decision was reviewable under PAJA for lack of authority and rationality.

Ratio Decidendi

The court found that the Appeal Board acted ultra vires by substituting its own decision for that of the JSE, specifically by finding the applicants guilty of contravening section 5.69 read with section 5.82 of the Listing Requirements when the JSE had not charged or found them guilty of such. The enabling statute, section 26B(15) of the Financial Services Board Act, does not empower the Appeal Board to substitute new charges or findings beyond the scope of the original decision under appeal. Furthermore, the applicants were denied procedural fairness as they were not given adequate notice or an opportunity to respond to the new charge, violating the audi alteram partem principle and the...

Court Disposition

Application for review succeeded; paragraphs 3 and 4 of the Appeal Board's decision are reviewed and set aside.

Orders

  • The decision of the first to third respondents (the Appeal Board) set out in paragraphs 3 and 4 of the Appeal Board’s decision dated 3 July 2012 is hereby reviewed and set aside.
  • The applicants are awarded the costs of the application, which shall be paid by the fourth respondent and shall include costs of two counsel.