Risk and Another v Ombud for Financial Services and Others (38791/2011) [2012] ZAGPPHC 199 (7 September 2012)

Risk and Another v Ombud for Financial Services and Others (38791/2011) [2012] ZAGPPHC 199 (7 September 2012)

The court held that section 27(3)(c) of the FAIS Act does not confer a right on applicants to demand referral of complaints to court, nor does it impose a duty on the Ombud to do so. The section grants the Ombud a discretionary power, which was properly exercised in this case. The applicants failed to exhaust internal remedies as required by section 39 of the FAIS Act and section 7(2) of PAJA, and did not demonstrate exceptional circumstances for exemption. The constitutional challenge to section 27(5)(a) was found to be unnecessary and poorly formulated, as the Ombud's process is consistent with section 34 of the Constitution, which allows for dispute resolution by independent tribunals....

Citation
[2012] ZAGPPHC 199
Parties
Applicant: Deeb Raymond Risk; Applicant: D Risk Insurance Consultants; Respondent: Ombud for Financial Services Providers; Respondent: Stella Mathamela; Respondent: Minister of Finance; Respondent: Elise Barnes; Respondent: Janet Anne Bujok; Respondent: Lionel Walter Oldacre; Respondent: Catherine Marie Oldacre; Respondent: Gillian Marbel Orpen; Respondent: Margery Isobel Mary Salmond; Respondent: Margaret Posgate; Respondent: Camillo Michel Flore
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
7 September 2012
Case Number
38791/2011
Procedural Posture
Review Application / Final Judgment on Review and Constitutional Challenge
Outcome
Application dismissed with costs, including costs of two counsel for first, second, and third respondents.
Judges
S.A.M Baqwa
Legal Topics
Financial Services Ombud, Internal Remedies Exhaustion, Constitutional Right of Access to Court, Statutory Discretion, Judicial Review, Costs Award
Administrative Law Banking and Finance Civil Procedure Financial Services Ombud Internal Remedies Exhaustion Constitutional Right of Access to Court Statutory Discretion Judicial Review +1 more

Case Brief

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Parties

Deeb Raymond Risk

Applicant

D Risk Insurance Consultants

Applicant

Ombud for Financial Services Providers

Respondent

Stella Mathamela

Respondent

Minister of Finance

Respondent

Elise Barnes

Respondent

Janet Anne Bujok

Respondent

Lionel Walter Oldacre

Respondent

Catherine Marie Oldacre

Respondent

Gillian Marbel Orpen

Respondent

Margery Isobel Mary Salmond

Respondent

Margaret Posgate

Respondent

Camillo Michel Flore

Respondent

Procedural Posture

Review Application / Final Judgment on Review and Constitutional Challenge

Legal Issues

  1. 1 Does section 27(3)(c) of the FAIS Act confer a right or impose a duty on the Ombud to refer complaints to court upon demand or reasonable grounds?
  2. 2 Did the Ombud exercise her discretion properly in declining to refer the complaints to court?
  3. 3 Are the applicants entitled to exemption from exhausting internal remedies under section 7(2)(c) of PAJA?

Ratio Decidendi

The court held that section 27(3)(c) of the FAIS Act does not confer a right on applicants to demand referral of complaints to court, nor does it impose a duty on the Ombud to do so. The section grants the Ombud a discretionary power, which was properly exercised in this case. The applicants failed to exhaust internal remedies as required by section 39 of the FAIS Act and section 7(2) of PAJA, and did not demonstrate exceptional circumstances for exemption. The constitutional challenge to section 27(5)(a) was found to be unnecessary and poorly formulated, as the Ombud's process is consistent with section 34 of the Constitution, which allows for dispute resolution by independent tribunals....

Court Disposition

Application dismissed with costs, including costs of two counsel for first, second, and third respondents.

Orders

  • The application is dismissed with costs.
  • Costs to include the costs of two counsel in respect of first, second, and third respondents.