South Africa Case Law

Koch and Kruger Brokers CC and Another v Financial Sector Conduct Authority and Others (48799/19)

Koch and Kruger Brokers CC and Another v Financial Sector Conduct Authority and Others (48799/19) [2024] ZAGPPHC 496 (30 May 2024)

Court

North Gauteng High Court, Pretoria

Case number

48799/19

Judge

Moshoana

The High Court held that the Ombud’s determination and the Tribunal Chairperson’s refusal of leave to appeal were not reviewable under PAJA. The review was dismissed with costs.

• Promotion Of Administrative Justice Act
• Financial Services Regulation
• Ombud Determinations
• Leave To Appeal
• Judicial Review
• Civil Judgment Enforcement

Louw v Carter and Other (1890/2021)

Louw v Carter and Other (1890/2021) [2024] ZAECQBHC 21 (19 March 2024)

Court

Eastern Cape High Court, Gqeberha

Case number

1890/2021

Judge

G Beshe

The court dismissed a PAJA review of an Ombud determination, finding the applicant had not exhausted internal remedies and had delayed unreasonably.

• Promotion Of Administrative Justice Act
• Failure To Exhaust Internal Remedies
• Unreasonable Delay
• Financial Services Regulation
• Writ Of Execution
• Judicial Review

Kokatay and Another v Topfin Makelaars Vryburg CC T/A and Others (UM01/23)

Kokatay and Another v Topfin Makelaars Vryburg CC T/A and Others (UM01/23) [2023] ZANWHC 38 (6 April 2023)

Court

North West High Court, Mafikeng

Case number

UM01/23

Judge

Reddy

Urgent defamation interdict refused where the email about debarment was truthful when sent and no future harm was shown.

• Interdict
• Defamation
• Employment Relationship
• Debarment
• Financial Services Regulation
• Interdicts

Movundlela Consulting (Pty) Ltd v Mmela Financial Services (Pty) Ltd (17393/20;14804/20)

Movundlela Consulting (Pty) Ltd v Mmela Financial Services (Pty) Ltd (17393/20;14804/20) [2023] ZAGPJHC 279 (23 March 2023)

Court

South Gauteng High Court, Johannesburg

Case number

17393/20;14804/20

Judge

Strijdom

The court found that Movundlela Consulting rendered financial services to Mmela Financial Services at a time when it was not registered as a financial services provider under the FAIS Act. Section 7(1) of the FAIS Act prohibits any person from acting as a financial services provider without a licence, and section 36 makes such conduct a criminal offence. The court held that enforcing the arbitral award would be contrary to public policy and the principle of legality, as it would condone a statutory violation. The application to make the arbitral award an order of court was therefore dismissed.

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• Arbitration Award Enforcement
• Financial Services Regulation
• Fais Act Compliance
• Public Policy Exception

Transnet Second Defined Benefit Fund v Wood (21875/21)

Transnet Second Defined Benefit Fund v Wood (21875/21) [2022] ZAGPJHC 906 (10 November 2022)

Court

South Gauteng High Court, Johannesburg

Case number

21875/21

Judge

N Manoim

The court found that the Fund established a prima facie case for provisional sequestration. The evidence showed Wood, through entities he controlled, received substantial payments from the Fund's accounts as a result of breaches of fiduciary duty, including improper fee deductions and excessive bond trading (bond churning) that benefited Regiments entities at the Fund's expense. The claims were liquidated, fixed, and determined. The Fund did not freely consent to the disputed transactions, nor was there full disclosure. The respondent's defences, including reliance on the mandate, lack of pri…

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• Provisional Sequestration
• Fiduciary Duties
• Disgorgement Of Profits
• Conflict Of Interest
• Liquidated Claims
• Financial Services Regulation

Fern Finance (Pty) Ltd and Another v Financial Services Tribunal and Others (13261/2021)

Fern Finance (Pty) Ltd and Another v Financial Services Tribunal and Others (13261/2021) [2022] ZAGPPHC 746 (13 October 2022)

Court

North Gauteng High Court, Pretoria

Case number

13261/2021

Judge

Potterill

The court found that Fern Finance was engaged in issuing guarantee policies as defined under the Short Term Insurance Act and was required to be registered accordingly, regardless of its registration under the National Credit Act. The Tribunal's decision to impose penalties, including licence withdrawal, debarment, and a R3.5 million fine, was rational, reasonable, and lawful. The Tribunal considered all relevant statutory factors, did not act capriciously, and focused appropriately on deterrence. The applicants' arguments regarding procedural unfairness and the calculation of penalties were…

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• Short Term Insurance Act
• National Credit Act
• Administrative Penalty
• Declaratory Relief
• Licence Withdrawal
• Financial Services Regulation

National Director of Public Prosecutions v Phansi (81710/2019)

National Director of Public Prosecutions v Phansi (81710/2019) [2022] ZAGPPHC 174 (10 March 2022)

Court

North Gauteng High Court, Pretoria

Case number

81710/2019

Judge

N Davis

The High Court ordered forfeiture under POCA after finding the respondent operated a Ponzi scheme and that the funds were proceeds of unlawful activity.

• Prevention Of Organised Crime Act
• Forfeiture Of Proceeds
• Ponzi Scheme
• Financial Services Regulation
• Poca-forfeiture
• Ponzi-scheme

Koch & Kruger Brokers CC and Another v Financial Sector Conduct Authority and Others (48799/19)

Koch & Kruger Brokers CC and Another v Financial Sector Conduct Authority and Others (48799/19) [2021] ZAGPPHC 755 (3 November 2021)

Court

North Gauteng High Court, Pretoria

Case number

48799/19

Judge

PM Mabuse

The court found that the Applicants, as financial service providers, owed the Babens a contractual and statutory duty to act with skill, care, and diligence, and to invest their funds in accordance with a low-risk mandate. The Applicants negligently recommended and facilitated investments in Sharemax, a high-risk property syndication scheme, without adequately investigating its legal status or warning of foreseeable regulatory risks. The Babens relied exclusively on the Applicants' advice and were not given sufficient opportunity to review investment documents. The collapse of Sharemax and th…

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• Promotion Of Administrative Justice Act
• Financial Services Regulation
• Breach Of Mandate
• Negligence
• Contractual Damages
• Banks Act Compliance

Novare Investments (Pty) Ltd and Another v Des Heuyer CC and Others (4286/2020)

Novare Investments (Pty) Ltd and Another v Des Heuyer CC and Others (4286/2020) [2020] ZAWCHC 37 (15 May 2020)

Court

Western Cape High Court, Cape Town

Case number

4286/2020

Judge

Wille, J

The High Court refused to stay a second arbitration, finding no good cause under section 3(2)(c) of the Arbitration Act despite a parallel action and FAIS legality objections.

• Arbitration Agreement Enforcement
• Stay Of Arbitration
• Financial Services Regulation
• Fais Compliance
• Good Cause Requirement
• Arbitration

Nel v Ncongwane and Others (99788/15)

Nel v Ncongwane and Others (99788/15) [2019] ZAGPPHC 508 (20 September 2019)

Court

North Gauteng High Court, Pretoria

Case number

99788/15

Judge

D S Fourie

The court held that the Appeal Board was authorised to apply common law principles in addition to the FAIS Act and Code of Conduct, as both the Ombud and the Appeal Board are required to consider the contractual and other legal relationships between the parties, which may necessitate reference to common law. The statutory framework does not exclude the application of common law, and the argument that the Appeal Board acted outside its powers is without merit. The Appeal Board did not substitute its own decision for that of the Ombud; it merely dismissed the appeal, leaving the Ombud's determi…

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• Promotion Of Administrative Justice Act
• Financial Services Regulation
• Duty Of Care
• Jurisdiction Of Ombud
• Appeal Board Powers