Smith v Financial Services Board and Another (9046/2018) [2019] ZAGPPHC 83 (20 March 2019)

Smith v Financial Services Board and Another (9046/2018) [2019] ZAGPPHC 83 (20 March 2019)

The court found that the applicant was not afforded procedural fairness prior to her debarment. She was not notified that the meeting could result in debarment, nor was she given sufficient time or information to prepare a defence. The process failed to comply with the requirements of section 14(1) of the FAIS Act and the common law principles of fairness, as articulated in Financial Services Board v Barthram and Heatherdale Farms. The decision to debar the applicant was therefore unlawful and must be set aside.

Citation
[2019] ZAGPPHC 83
Parties
Applicant: Marie Smith; Respondent: Financial Services Board; Respondent: Best Advice Financial Services (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 March 2019
Case Number
9046/2018
Procedural Posture
Review Application / Final Hearing
Outcome
Application granted. The decision to debar the applicant is reviewed and set aside. Costs awarded against the second respondent.
Judges
Millar
Legal Topics
Debarment of Representatives, Procedural Fairness, Fit and Proper Requirements, Financial Advisory and Intermediary Services Act
Administrative Law Banking and Finance Debarment of Representatives Procedural Fairness Fit and Proper Requirements Financial Advisory and Intermediary Services Act

Case Brief

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Parties

Marie Smith

Applicant

Financial Services Board

Respondent

Best Advice Financial Services (Pty) Ltd

Respondent

Procedural Posture

Review Application / Final Hearing

Legal Issues

  1. 1 Whether the applicant was afforded procedural fairness prior to her debarment under section 14(1) of the Financial Advisory and Intermediary Services Act.
  2. 2 Whether the decision to debar the applicant complied with the requirements of the FAIS Act and common law principles of fairness.
  3. 3 Whether the applicant received adequate notice and opportunity to respond before the debarment decision was made.

Ratio Decidendi

The court found that the applicant was not afforded procedural fairness prior to her debarment. She was not notified that the meeting could result in debarment, nor was she given sufficient time or information to prepare a defence. The process failed to comply with the requirements of section 14(1) of the FAIS Act and the common law principles of fairness, as articulated in Financial Services Board v Barthram and Heatherdale Farms. The decision to debar the applicant was therefore unlawful and must be set aside.

Court Disposition

Application granted. The decision to debar the applicant is reviewed and set aside. Costs awarded against the second respondent.

Orders

  • The decision taken by the second respondent to debar the applicant in terms of Section 14(1) of the Financial Advisory and Intermediary Services Act 37 of 2002 is reviewed and set aside.
  • The second respondent is ordered to pay the costs of the application.