South Africa Case Law

Maynard v Carrick Wealth (Pty) Limited (21243/23)

Maynard v Carrick Wealth (Pty) Limited (21243/23) [2024] ZAWCHC 370 (15 November 2024)

Court

Western Cape High Court, Cape Town

Case number

21243/23

Judge

M W Janisch

The Court held that section 14 of the FAIS Act imposes a statutory duty on financial services providers to initiate and effect debarment proceedings in appropriate circumstances, and that this duty cannot be compromised or waived by private agreement, even by way of a settlement agreement. The initiation of debarment proceedings is not administrative action under PAJA but is subject to legality review. The Applicant failed to establish that the Respondent acted unlawfully in initiating the debarment process, either by virtue of the settlement agreement or due to an ulterior purpose. The Respo…

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• Fais Act Debarment
• Fit And Proper Requirements
• Confidential Information
• Restraint Of Trade
• Settlement Agreement
• Ulterior Purpose

Ramkistan and Another v Standard Bank of South Africa (D2490/2022;D4744/2022)

Ramkistan and Another v Standard Bank of South Africa (D2490/2022;D4744/2022) [2023] ZAKZDHC 55 (10 August 2023)

Court

Kwazulu-Natal High Court, Durban

Case number

D2490/2022;D4744/2022

Judge

N.Z. Kuzwayo

The High Court dismissed two consolidated applications against Standard Bank and the FSCA, finding jurisdictional, procedural, and pleading defects, and awarded costs against the applicants.

• Locus Standi
• Damages Claims
• Protection From Harassment Act
• National Credit Act
• Administrative Review
• Fit And Proper Requirements

Associated Portfolio Solutions (Pty) Ltd and Another v Basson and Others (554/2019)

Associated Portfolio Solutions (Pty) Ltd and Another v Basson and Others (554/2019) [2020] ZASCA 64; 2021 (1) SA 341 (SCA) (12 June 2020)

Court

Supreme Court of Appeal

Case number

554/2019

Judges

Ponnan, Dambuza, Plasket, Gorven, Matojane

The Supreme Court of Appeal held that the debarment of Mr Basson was an administrative action subject to review under PAJA. The court found that the disciplinary inquiry established facts directly relevant to Mr Basson's honesty and integrity, which are central to the fit and proper requirements under the FAIS Act. The notices sent to Mr Basson provided adequate warning of the impending debarment and invited him to make representations, which he did through his attorneys. The court rejected the argument that a separate debarment inquiry was required, holding that the disciplinary process suff…

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• Debarment Of Representatives
• Fit And Proper Requirements
• Procedural Fairness
• Institutional Bias
• Disciplinary Inquiry
• Review Of Administrative Action

Celliers v Warwick Invest (Pty) Ltd and Others (85389/16)

Celliers v Warwick Invest (Pty) Ltd and Others (85389/16) [2019] ZAGPPHC 540 (31 October 2019)

Court

North Gauteng High Court, Pretoria

Case number

85389/16

Judge

Francis-Subbiah

The High Court reviewed and set aside a FAIS debarment after finding the representative was not given a fair process or a proper chance to address honesty and integrity.

• Debarment Of Financial Services Representative
• Fit And Proper Requirements
• Procedural Fairness
• Promotion Of Administrative Justice Act
• Financial Advisory And Intermediary Services Act
• Administrative-law

Smith v Financial Services Board and Another (9046/2018)

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

Court

North Gauteng High Court, Pretoria

Case number

9046/2018

Judge

Millar

The High Court set aside a FAIS debarment because the applicant was not given adequate notice or a fair opportunity to answer the case against her.

• Debarment Of Representatives
• Procedural Fairness
• Fit And Proper Requirements
• Financial Advisory And Intermediary Services Act
• Administrative-law
• Fais-act

Associated Portfolio Solutions (Pty) Ltd and Another v Basson and Others (16224/2017)

Associated Portfolio Solutions (Pty) Ltd and Another v Basson and Others (16224/2017) [2019] ZAWCHC 11 (1 February 2019)

Court

Western Cape High Court, Cape Town

Case number

16224/2017

Judge

Sievers

The High Court dismissed leave to appeal in a dispute over debarment proceedings, holding there was no reasonable prospect of success and awarding costs.

• Reasonable Apprehension Of Bias
• Recusal Of Decision Makers
• Fair Administrative Action
• Debarment Proceedings
• Fit And Proper Requirements
• Administrative-law

Basson v Associated Portfolio Solutions (Pty) Ltd and Others (16224/2017)

Basson v Associated Portfolio Solutions (Pty) Ltd and Others (16224/2017) [2018] ZAWCHC 184 (14 December 2018)

Court

Western Cape High Court, Cape Town

Case number

16224/2017

Judge

Sievers

The High Court set aside the debarment of a financial services representative, finding the process procedurally unfair and biased, and dismissed the counter-application.

• Promotion Of Administrative Justice Act
• Fit And Proper Requirements
• Procedural Fairness
• Debarment Of Representatives
• Conflict Of Interest
• Audi Alteram Partem

Coetzee and Another v Financial Services Board (13530/2017)

Coetzee and Another v Financial Services Board (13530/2017) [2017] ZAGPPHC 1142 (1 December 2017)

Court

North Gauteng High Court, Pretoria

Case number

13530/2017

Judge

C Pretorius

The court found that the applicants were afforded multiple opportunities to make written representations regarding the allegations against them, with deadlines extended and relevant documents made available for inspection. The applicants chose not to respond or contest the facts, and their attorney confirmed receipt of the correspondence. The requirements of procedural fairness under PAJA and the audi alteram partem rule were met, as written representations are sufficient unless oral hearings are specifically requested, which was not the case here. The court further held that the debarment wa…

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• Promotion Of Administrative Justice Act
• Financial Advisory And Intermediary Services Act
• Procedural Fairness
• Audi Alteram Partem
• Fit And Proper Requirements

Odifin (Pty) Ltd v Reynecke (906/2016)

Odifin (Pty) Ltd v Reynecke (906/2016) [2017] ZASCA 115; 2018 (1) SA 153 (SCA) (21 September 2017)

Court

Supreme Court of Appeal

Case number

906/2016

Judges

Bosielo, Petse, Plasket, Tsoka, Rogers

The Supreme Court of Appeal held that Odinfin's breach of procedural fairness under PAJA did not give rise to a delictual claim for damages. The court found that PAJA provides for judicial review and specific remedies, but does not contemplate a delictual remedy for damages arising from non-compliance with procedural fairness. The FAIS Act's purpose is to protect the public, not individual representatives, and imposing liability for damages would undermine statutory objectives and have a chilling effect on compliance. There was no evidence of mala fides or statutory breach by Odinfin, and the…

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• Pure Economic Loss
• Administrative Action
• Procedural Fairness
• Duty Of Care
• Fit And Proper Requirements
• Statutory Interpretation

Financial Services Board v Barthram and Another (20207/2014)

Financial Services Board v Barthram and Another (20207/2014) [2015] ZASCA 96; [2015] 3 All SA 665 (SCA); 2018 (1) SA 139 (SCA) (1 June 2015)

Court

Supreme Court of Appeal

Case number

20207/2014

Judges

Ponnan, Cachalia, Leach, Dambuza, Gorven

The SCA held that FAIS debarment under section 14(1) operates industry-wide and set aside Discovery Life’s debarment of Mr Barthram for unfair procedure.

• Debarment Of Representatives
• Fit And Proper Requirements
• Procedural Fairness
• Financial Services Regulation
• Audi Alteram Partem
• Review Under Paja