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[2012] ZASCA 156
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Corpclo 2290 CC t/a U-Care v Registrar of Banks (755/2011) [2012] ZASCA 156; [2013] 1 All SA 127 (SCA) (2 November 2012)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Reportable
Case No: 755/2011
In the matter between:
CORPCLO 2290 CC t/a U-CARE
...............................................
FIRST
APPELLANT
CORPCLO 2297 (PTY) LIMITED t/a DMP
MARKETING
.........................................................................
SECOND
APPELLANT
And
THE REGISTRAR OF BANKS
...........................................................
RESPONDENT
Neutral citation:
Corpclo 2290 cc t/a U-Care v
The Registrar of Banks
(755/11)
[2012] ZASCA 156
(2 November
2012)
Coram
: MPATI P, LEWIS, MALAN, LEACH JJA and
SOUTHWOOD AJA
Heard: 14 SEPTEMBER 2012
Delivered: 2 NOVEMBER 2012
Summary: Banks Act 94 of 1990 – contravention
of s 11 – appellants conducting ‘the business of a bank’
as
defined in notice issued in terms of paragraph (
e
) of the
definition of ‘the business of a bank’ in s 1 –
interdict granted against the appellants in terms of
s 81 of the Act
prohibiting them from conducting their business in contravention of
the Act – appellants appeal against the
order on the grounds
that the provisions of the Act and the notice itself not properly
interpreted in the light of the Constitution
and the Act – such
grounds not part of the defence in the court a quo and raised for the
first time in the appellants’
heads of argument – whether
the court should consider the new defences where they were not raised
in the court a quo.
______________________________________________________________
ORDER
_____________________________________________________________
On appeal from:
KwaZulu-Natal High Court,
Pietermaritzburg (Booyens AJ, sitting as court of first instance)
The appeal is dismissed with costs, such costs to
include the costs of two counsel.
______________________________________________________________
JUDGMENT
______________________________________________________________
SOUTHWOOD AJA (MPATI P, LEWIS, MALAN and LEACH JJA
CONCURRING):
[1] The issue in this appeal is whether the
KwaZulu-Natal High Court, Pietermaritzburg (Booyens AJ) correctly
granted an interdict
in terms of s 81 of the Banks Act 94 of 1990
prohibiting the appellants (respondents in the court a quo) from
continuing a business
practice in contravention of s 11(1) of the
Act. This appeal is with the leave of the court a quo.
[2] The Act, originally called the Deposit-taking
Institutions Act, was enacted to provide for the regulation and
supervision of
public companies taking deposits from the public and
matters connected therewith. It has been extensively amended and now
provides
for the regulation and supervision of public companies which
intend to carry on ‘the business of a bank’ which means,
primarily, the acceptance of deposits from the general public as a
regular feature of the business. Subject to s 18A (which is
not
presently relevant), s 11(1) provides that no person shall conduct
the business of a bank unless such person is a public company
and is
registered as a bank in terms of the Act. A number of functions are
assigned to the Registrar of Banks by the Act. The Registrar
is a
South African Reserve Bank officer or employee, designated by the
Reserve Bank, to perform, under the control and direction
of the
Reserve Bank, the functions assigned to the Registrar under the Act
(s 4). In order to perform his or her functions under
the Act the
Registrar has all the powers and duties corresponding with those
conferred or imposed by the
Inspection of Financial Institutions Act
80 of 1998
on a registrar in terms of that Act (s 6). These include
the power to appoint inspectors who have extensive powers to
investigate.
[3] In terms of s 81 of the Act, if the Registrar has
reason to suspect that any person who is not registered in terms of
the Act
as a bank –
(a) is likely to conduct the business of a bank in
contravention of the provisions of section 11(1); or (b) has so
contravened the
provisions of section 11(1) and/or that such
contravention is likely to be continued or repeated; the Registrar
may apply to the
relevant high court for an order prohibiting the
anticipated contravention referred to; in paragraph (a) and/or
prohibiting the
continuation or repetition of a contravention
referred to in paragraph (b).
If it is proved to the satisfaction of the high court
that there is a reasonable likelihood of a contravention of s 11(1)
taking
place or that there is a reasonable likelihood that a
contravention will be continued or repeated, the high court may make
the
relevant order applied for. It should be noted that s 9 of the
Act provides for a review by a board of review of any decision taken
by the Registrar by any person aggrieved by the decision. Such a
review is confined to the question of whether or not the Registrar,
in taking the decision, exercised his or her discretion properly and
in good faith. The board of review may after the review confirm,
vary
or set aside the Registrar’s decision.
[4] The primary definition of ‘the business of a
bank’ as defined in s 1, is:
‘
(
a
)
the acceptance of deposits from the general public (including persons
in the employ of the person so accepting deposits) as a
regular
feature of the business in question,’
But the definition is extended in paragraph (
e
)
to include: ‘any other activity which the Registrar has, after
consultation with the Governor of the Reserve Bank, by notice
in the
Gazette
declared to be
the business of a bank’
.
On 27 March 1997, the Registrar, by Notice 498 published
in
Government Gazette
17895,
declared the following ‘business practice’ (defined to
include ‘any scheme, practice or method of trading,
including
any method of marketing or distribution’) to be ‘the
business of a bank’:
‘
2. The
acceptance or obtaining of money, directly or indirectly, from
members of the public, as a regular feature of a business
practice,
with the prospect of such members (hereinafter referred to as the
“participating members”) receiving payments
or other
money-related benefits, directly or indirectly–
on or after the introduction of
other members of the public to the business practice (hereinafter
referred to as the “new
participating members”), from
which new participating members, in their turn, money is accepted or
obtained, directly or
indirectly, as a regular feature of the
business practice, whether or not–
the introduction of the new
participating members is limited to their introduction by
participating members or extends to the
introduction of the new
participating members by other persons; or
new participating members are
required to acquire movable or immovable property, rights or
services;
on or after the promotion,
transfer or change of status of the participating members or new
participating members within the business
practices; or
from funds accepted or obtained
from participating members or new participating members in terms of
the business practice.
3. The soliciting of, or
advertising for, directly or indirectly, money and/or persons for
introduction into or participation in
a business practice as
described in paragraph 2
supra
.’
[5] During April 2009, acting on the instructions of the
Governor of the Reserve Bank, the Registrar appointed three employees
of
PriceWaterhouseCoopers Forensic Services (Pty) Ltd as temporary
inspectors to investigate whether the appellants, their directors,
members and officers and related persons and entities were conducting
the business of a bank in contravention of s 11(1) of the
Act. The
inspectors ascertained that
–
(a) the business (known as U-Care) operated by the first
appellant operates as a multi-tiered structure (members are referred
to
as ‘independent contractors’) where members of the
public are requested to make monthly contributions to U-Care;
(b) members make a minimum monthly contribution
(initially R125, later R165) which is deposited into an Absa account
held in the
name of the first appellant;
(c) this monthly contribution is utilized as follows:
(i) 60 % is paid back to members as commissions and/or
bonuses;
(ii) 20 % is paid to the second appellant, the
management company, for ‘administrative expenses’;
(iii) 20 % is donated to charity;
(d) when joining, a member nominates a charity. When 20
members have nominated a charity it is selected to receive donations;
(e) members are paid commissions as a reward for other
members they sign up, down to four levels in the tiered structure;
(f) To qualify for commission a member must have three
paying members per level;
(g) Commission is paid over four levels totalling R75
(later R125). This is 60 % of the contribution;
(h) The commission is calculated as follows:
(i) first level – R10 commission per member signed
up;
(ii) second level – R20 commission per member
signed up;
(iii) third level – R30 commission per member
signed up;
(iv) fourth level – R15 commission per member
signed up;
(i) Commission is only paid down to four levels and
there must be three paying members per level. If there are fewer than
three
paying members on a level, commission is not paid;
(j) Such unpaid commissions are used to pay bonuses;
(k) ‘Clubs’ are also paid bonuses/rewards on
a monthly basis:
(i) ‘Club 20’ – R150 per month is paid
to members with 20 people in their structure of which four people are
on
the first level;
(ii) ‘Club 60’ – R500 per month is
paid to members with 60 people in their structure of which six people
are on
the first level;
(iii) ‘Club 100’ – R1 000 per month is
paid to members with 100 members in their structure of which ten
people
are on the first level;
(iv) ‘Club 150’ – R1 500 per month is
paid to members with 150 people in their structure of which 15 people
are
on the first level;
(v) ‘Club 200’ – R2 000 per month is
paid to members with 200 members in their structure of which 20
people are
on the first level.
[6] The appellants have also advertised their business
and solicited business by means of their website.
[7] On the strength of these facts the Registrar had
reason to suspect that the appellants were contravening, and would
continue
to contravene, s 11(1) of the Act read with Notice 498,
Consequently, the Registrar launched the application in the court a
quo
for the relief set out in s 81 of the Act. The appellants opposed
the application and filed an answering affidavit.
[8] Despite the denial of certain
allegations in their answering affidavit, the appellants did not
create any bona fide
disputes
of fact which would be an obstacle to the grant of final relief.
1
Their principal contention is that
they conduct a charity funding business which provides a service to
both donors (called ‘participants’)
and charities. They
make donation by the participants easier and less complicated and
they distribute funds to charities on a regular
monthly basis. This
facilitates the operation of the charities which are assured of a
regular monthly income. Without disputing
the business practice
described in the Registrar’s founding affidavit, they contend
that they do not conduct the business
of a bank.
[9] It also appears from the answering affidavit, that,
in the first two years of its existence, U-Care received total
donations
(or contributions) amounting to almost R15 million, and in
the next three and a half years, donations amounting to more than R60
million. The appellants claim that U-Care is a transparent
fund-raising business which is inspired by altruistic motives but
they
have not provided any facts to support these bald allegations or
explain the dramatic growth in income or turnover and they have
not
attached to their answering affidavit any financial statements or
other relevant documents. They have provided no information
about the
donors, the amounts the donors contribute, the charities that benefit
from the business, the amounts distributed to the
charities and the
commissions or bonuses paid to the participants. They have also not
stated what the second appellant’s
cost structure is and what
amounts have been paid to the second appellant for its administrative
expenses.
[10] It further appears from the affidavit that in 2007
the members or directors of the appellants became concerned about
whether
their business was lawful – they do not say when, but
it was probably when they received a letter from the Deputy Registrar
seeking information about the business – and they claim to have
approached the Department of Trade and Industry for ‘the
necessary approvals to operate such business models so as to comply
with the relevant laws of the Republic of South Africa’.
Strangely, they do not state what the outcome of such approach was
and they do not attach to their affidavit any approval given
by the
Department of Trade and Industry or any correspondence between
themselves and the Department. All that the court was told
by the
appellants’ counsel from the Bar was that the Department of
Trade and Industry did not grant approval. Although this
evidence
should have been set out in the answering affidavit, it is entirely
consistent with the most plausible inference from
the absence of such
approval in the papers.
[11] The appellants’ inaction after that is
difficult to understand if they were truly concerned about whether
their business
was legitimate. After they failed to obtain the
Department’s approval, they should have sought legal advice to
ensure that
they were not acting unlawfully. Yet they did nothing.
Not even the investigation carried out by the Registrar’s
inspectors
in April 2009 could prompt them into action. The
appellants did not obtain legal advice until the papers were served
in August
2010. Apparently the only advice they received was to
simply deny that they were conducting ‘the business of a bank’.
[12] In their answering affidavit the appellants raised
only one defence: that the Registrar’s founding affidavit did
not
disclose a cause of action because the facts averred did not
establish that the appellants were conducting ‘the business of
a bank’. Neither of the appellants is a public company and they
did not dispute that they are not registered as a bank. Accordingly,
the only dispute was whether the appellants conduct ‘the
business of a bank’ as described in the Notice. This required
the application of the provisions of the Notice to the business
practice described earlier. The court a quo had no doubt that the
appellants were conducting the ‘business of a bank’ and
pertinently recorded the appellants’ counsel’s
concession
that the appellants’ business practice described above is
tantamount to conducting the ‘business of a bank’.
On the
ordinary grammatical meaning of the words in the Notice, that
concession was clearly correct and so was the grant of the
order
against the appellants. It was clear that unless interdicted the
appellants would continue with their business activities
and persist
in contravening s 11(1) of the Act.
[13] On appeal, the appellants’ counsel (who did
not appear in the court a quo) seek, in their heads of argument, to
make
out a completely new case on behalf of the appellants. This has
three parts. First, they contend that the court a quo failed in
its
duty under ss 8 and 39 of the Constitution to interpret the Act in a
way that respects, promotes and fulfils the rights in
the Bill of
Rights. It did this, according to the argument, because it failed to
take account of ss 1, 22, 25 and 33 of the Constitution.
Second, they
contend that even if the court a quo’s interpretation is
correct, Notice 498 is unconstitutional because it
is ultra vires and
overbroad and falls outside the scope of ss 1 and 11 of the Act.
Third, they contend that s 1 of the Act gives
‘unlawfully wide’
powers to the Registrar to determine the meaning of ‘the
business of a bank’. Thus, the
appellants raise three
constitutional issues, the proper interpretation of the Act, the
constitutionality of the Notice and the
constitutionality of the
power conferred on the Registrar to determine the meaning of ‘the
business of a bank’.
[14] It is apparent from the judgment of the court a quo
that no attempt was made to interpret the Notice – obviously
because
the ordinary grammatical meaning is clear and unambiguous and
was not disputed – and that none of the matters now sought to
be raised was mentioned during the hearing.
[15] The Registrar’s counsel
contends that because these issues were not canvassed in the
appellants’ answering affidavit
the appellants are precluded
from advancing them on appeal.
2
The Registrar’s counsel points
out that not only was the Registrar not warned of the issues raised
but the court is deprived
of the assistance of
amici
curiae
such as the
Reserve Bank, the Minister of Finance and the Minister of Trade and
Industry, all of whom would have had an interest
in the relief
sought.
3
[16] The appellants’ approach
ignores all the well-established rules of practice governing motion
proceedings and the raising
of constitutional issues. It is trite
that in motion proceedings the affidavits comprise both the pleadings
and the evidence and
that the parties’ contentions should
appear clearly from the affidavits so that the opposing party can
deal with them.
4
Furthermore, Rule 16A of the Uniform
rules emphasizes the necessity for constitutional issues to be
clearly raised. In
Shaik
v Minister of Justice and Constitutional Development & others
5
the Constitutional Court said:
‘
The
minds of litigants (and in particular practitioners) in the High
Courts are focused on the need for specificity by the provisions
of
Uniform Rule 16A(1). The purpose of the Rule is to bring to the
attention of persons (who may be affected by or have a legitimate
interest in the case) the particularity of the constitutional
challenge, in order that they may take steps to protect their
interests.
This is especially important in those cases where a party
may wish to justify a limitation of a chap 2 right and adduce
evidence
in support thereof. It constitutes sound discipline in
constitutional litigation to require accuracy in the identification
of statutory
provisions that are attacked on the ground of their
constitutional invalidity. This is not an inflexible approach. The
circumstances
of a particular case might dictate otherwise. It is,
however, an Important consideration in deciding where the interests
of justice
lie.’
And
it has been held that it is impermissible to rely on a constitutional
complaint that was not pleaded.
6
[17] The issue was comprehensively
dealt with by the Constitutional Court in
Prince
v President, Cape Law Society & others
7
where Ngcobo J said:
‘
Parties
who challenge the constitutionality of a provision in a statute must
raise the constitutionality of the provisions sought
to be challenged
at the time they institute legal proceedings. In addition, a party
must place before the Court information relevant
to the determination
of the constitutionality of the impugned provisions. Similarly, a
party seeking to justify a limitation of
a constitutional right must
place before the Court information relevant to the issue of
justification. I would emphasise that all
this information must be
placed before the court of first instance. The placing of the
relevant information is necessary to warn
the other party of the case
it will have to meet, so as to allow it the opportunity to present
factual material and legal argument
to meet that case. It is not
sufficient for a party to raise the constitutionality of a statute
only in the heads of argument,
without laying a proper foundation for
such a challenge in the papers or the pleadings. The other party must
be left in no doubt
as to the nature of the case it has to meet and
the relief that is sought. Nor can parties hope to supplement and
make their case
on appeal.’
[18] The constitutional attack on the
Notice and the power of the Registrar clearly affects other parties
who should have been given
notice of such attack so that they could
intervene and present evidence and argument in support of the
constitutionality of the
Notice and the Registrar’s power in
paragraph (
e
)
of the definition of ‘the business of a bank’ This part
of the appellants’ argument therefore cannot be considered.
In
so far as this court might have been inclined to consider the
interpretation issue raised in the appellants’ heads of
argument, it does not assist the appellants that the argument in the
heads of argument is incoherent and unintelligible; it did
not become
more coherent and intelligible during oral argument. At one stage the
appellants’ counsel clearly conveyed to
the court that he was
abandoning all arguments except that based on the Notice being ultra
vires, only to return to the other arguments
during reply.
[19] The only sections relevant to the Registrar’s
cause of action against the appellants are s 11 (read with the
definition
of ‘the business of a bank’ in the Notice) and
s 81. No sections in the
South African Reserve Bank Act 90 of 1989
or
any other Act have to be considered or interpreted. Both ss 11 and 81
and the Notice are clear and unambiguous. Section 11 clearly
prohibits any person, other than a public company which is registered
as a bank in terms of the Act, from conducting the business
of a bank
– which includes the ‘business practice’ described
in the Notice. Section 81 provides what action the
Registrar can take
if he or she has reason to suspect that any person, who is not
registered as a bank in terms of the Act, is
likely to conduct the
‘business of a bank’ in contravention of the provisions
of section 11(1) or that such a contravention
is likely to be
continued or repeated. This is therefore a case of a clear,
straightforward prohibition of defined conduct and
clear and
straightforward provisions authorising the Registrar’s action.
[20] It is a primary rule of
statutory construction that words in a statute must be given their
ordinary grammatical meaning in
the light of their context, where
‘context’ includes the language of the rest of the
statute, the matter of the statute,
its apparent scope and purpose,
and, within limits, its background. When interpreting the words in as
statute, the court must,
from the outset, consider the language and
the context together.
8
This must be done even when the words
to be interpreted are clear and unambiguous.
9
In addition, s 39(2) of the
Constitution requires that every piece of legislation must be
construed in a manner that promotes the
‘spirit, purport and
objects of the Bill of Rights,’ ie ‘(a)ll statutes must
be interpreted through the prism
of the Bill or Rights’.
10
This must be done whatever the nature
of the legislation.
11
But looking through the prism of the
Constitution does not open the door to changing the clear meaning of
the statute. If the clear
meaning conflicts with the Bill of Rights,
the remedy is to strike it down.
12
And it must always be borne in mind
that s 39(2) postulates that the interpretation which is proposed is
one which would demonstrably
promote an identifiable value enshrined
in the Bill of Rights and also one of which the legislation is
reasonably capable.
13
In seeking to give meaning to the
words of a statute the court will also give effect to the object or
purpose of the legislation
14
but this cannot change the meaning of
words which are only capable of one meaning.
15
I now turn to consider what I regard
as the main shortcomings in the appellants’ new case.
[21] The heads of argument do not consistently identify
the relevant section or sections in the Act which, it is contended,
have
not been properly interpreted and then in relation to each such
section explain how, by the application of the rules of
interpretation,
the relevant provisions would acquire a different
meaning not in conflict with the relevant rights in the Bill of
Rights. The argument
in connection with the appellants’ right
to just administrative action in terms of section 33 of the
Constitution is formulated
as if this case is a review in terms of
the Promotion of Administrative Justice Act 3 of 2000 (PAJA) –
which it clearly is
not. After referring to ss 22, 25 and 33, and
what they mean, the argument concludes that the court a quo failed to
interpret the
Reserve Bank Act (which is neither relevant nor the
subject of attack), the Act and Notice 498 in a manner that took
account of
the constitutional rights of the first appellant, its
members and beneficiaries, and that the correct interpretation
required an
interpretational ‘reading down’. This is then
stated in extremely vague and general terms:
‘
a. The
Registrar should not have been entitled to investigate and arrive at
adverse decisions impacting on the rights of Corpclo
without showing
due respect for Corpclo’s administrative rights to procedural
fairness; b. The Registrar should not have
been entitled to take a
decision that seriously impacts upon the rights of Corpclo and its
directors and members to property and
freedom of trade without
sufficient reason and with respect for procedural fairness; c. The
Banks Act and Government Notice 498
should be interpreted to exclude
Corpclo and like organisations, which is clearly not operating “the
business of a bank”
as envisaged by the Banks Act; d. The power
of the Registrar to declare activities to be “the business of
the bank”
in terms of section 1 of the Banks Act should be
constitutionally limited.’
[22] The following comments on these conclusions are
apposite: Conclusion ‘a’ does not relate to the
interpretation
of any relevant section. It seems to relate to a
constitutional attack on the provisions of s 6 of the Act (which is
not relevant)
in terms of which the Registrar is empowered to appoint
inspectors, and an attack on the Registrar’s decision in terms
of
s 81 to launch the application in the court a quo. The second
attack should clearly have been made in a review in terms of s 9 of
the Act in terms of PAJA. Conclusion ‘b’ also does not
relate to the interpretation of an identified section. It seems
to
relate to a constitutional attack on s 81 which allegedly conflicts
with the appellants’ rights in terms of ss 22, 25
and 33 of the
Constitution or an attack on the Registrar’s decision to launch
the application in the court a quo, which should
have been made in a
review under s 9 of the Act or in terms of PAJA. Conclusion ‘c’
relates to interpretation but does
not identify any provisions of the
Act which should be interpreted as alleged and it is therefore not
possible to establish which
provisions should be read down. Similarly
the words in the Notice which must be read down are not identified.
Conclusion ‘d’
is also not an interpretational but a
constitutional issue. Here the appellants have conflated the two
issues. It is striking that
the appellants have not addressed the
clear meaning of ss 11 and 81 and the Notice.
[23] The Act is a law of general application which was
enacted to regulate and supervise the business of public companies
taking
deposits from the public. However, it is clear from the
provisions of s 11 that no one may engage in these activities unless
such
person is a public company and is registered as a bank in terms
of the Act. It is also clear from the definition of ‘the
business of a bank’ (para (
e
)) that the Registrar has,
after consultation with the Governor of the Reserve Bank, the power
to declare any other ‘business
practice’ to be ‘the
business of a bank’. Finally it is clear that the court may
issue an interdict which has
the effect that the offender may not
conduct the contentious ‘business practice’. For present
purposes it will be accepted
that such an interdict interferes with
the appellants’ right to choose their trade or occupation (s 22
of the Constitution)
and will constitute a deprivation of property (s
25 of the Constitution).
[24] In their heads of argument the appellants have not
dealt with the limitation of rights allowed by s 36 of the
Constitution
or the internal limitations of the rights in s 22 (‘the
practice of a trade, occupation or profession may be regulated by
law’) and s 25 (a person may be deprived of property in terms
of a law of general application). In their argument before
this court
the appellants’ counsel made no submissions in respect of these
matters.
[25] Regarding the appellants’ right to just
administrative action in terms ofs 33 of the Constitution, the
appellants’
heads of argument attack the Registrar’s
decision (in terms of unidentified provisions of the Reserve Bank Act
90 of 1989
– which is not relevant – and the Act) to
appoint inspectors to investigate the appellants and to institute
proceedings
against them on the grounds that these were
administrative decisions taken by an organ of State in the course of
implementing legislation
and that the Registrar failed to act in a
manner that was lawful, reasonable and procedurally fair. This would
require, so it is
contended, that the appellants be given adequate
notice of the nature and purpose of the administrative action, a
reasonable opportunity
to make representations, a clear statement of
the administrative action and adequate notice of the right to request
reasons and
of any right of review. It is also contended that
administrative action must not be taken arbitrarily, capriciously, in
bad faith
or for an ulterior purpose. In support of these contentions
the appellants refer to ss 1, 3 and 6 of PAJA. These are clearly not
matters of interpretation but matters for review in terms of PAJA.
[26] Even if the argument could be
found to relate in some way to the interpretation of the sections,
the appellants’ reasoning
is seriously flawed. First, it will
be remembered that the Registrar’s cause of action in the court
a quo was simply the
contravention of s 11 of the Act read with the
Notice and s 81 of the Act. The Registrar’s decision to
investigate the appellants’
business was of no relevance
whatsoever. Secondly, the Registrar’s decisions to investigate
the appellants’ business
and institute proceedings against the
appellants for an interdict in terms of s 81 of the Act were not
administrative actions for
the purposes of PAJA as they did not (as
required by the definition of ‘administrative action’ in
s 1 of PAJA) adversely
affect the rights of the appellants or have a
direct, external legal effect or have that capacity.
16
Whether or not administrative action,
which would make PAJA applicable, has been taken, cannot be
determined in the abstract. Regard
must always be had to the facts of
the case.
17
A decision to investigate and the
process of investigation, which exclude a determination of
culpability, could not adversely affect
the rights of the appellants
in a manner that has a direct and external legal effect.
18
So too a decision to institute
proceedings in the high court for an interdict does not affect the
rights of the appellants or have
that capacity.
19
It is the high court which decides
that the Act is being contravened and decides to grant the interdict.
[27] Since this is not a review, none
of the additional cases referred to by the appellants’ counsel
during argument
20
in support of the proposition that
before the Registrar took the decisions, the appellants should have
been given an opportunity
to adduce material ‘which would deter
the decision-maker from making that decision’, are of any
relevance.
[28] The object or purpose of the Act is clearly to
regulate the registration and operation of persons conducting the
‘business
of a bank’. Section 11(1) prohibits all persons
who are not public companies and who are not registered in terms of
the Act
from conducting the ‘business of the bank’. This
is not affected by any right in the Bill of Rights.
[29] There is, therefore, no merit in the appeal and it
must be dismissed.
The following order is made:
The appeal is dismissed with costs, such costs to
include the costs of two counsel.
______________________
B R SOUTHWOOD
ACTING JUDGE OF APPEAL
APPEARANCES
For Appellants: A J Dickson (SC) (with him M du
Plessis)
Instructed by:
M C Wilkinson & Co, Hilton
McIntyre & Van der Post, Bloemfontein
For Respondent: E L Theron (with him T Manchu)
Instructed by:
Hahn & Hahn Inc, Pretoria
Symington & de Kok, Bloemfontein
1
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C;
Wightman
t/a J W Construction v Headfour (Pty) Ltd & another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) paras 12-13;
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) para 26.
2
Philips
& others v National Director of Public Prosecutions
[2005] ZACC 15
;
2006
(1) SA 505
(CC) para 39;
Prince v
President, Cape Law Society & others
[2000] ZACC 28
;
2001
(2) SA 388
(CC)
(2001 (2) BCLR 133)
para 22.
3
See
eg
Platinum Asset Management (Pty) Ltd
v Financial Services Board & others: Anglo Rand Capital House
(Pty) Ltd & others v
Financial Services Board & others
2006
(4) SA 73
(W) and the unreported judgment of Hiemstra AJ in
Claassen v Minister of Justice & others,
Case number 40405/08 (NGHC).
4
Radebe
& others v Eastern Transvaal Development Board
1988 (2) SA
785
(A) at 793D-G;
Transnet Ltd v Rubenstein
2006 (1) SA 591
(SCA) paras 28-29;
Minister of Land Affairs and Agriculture &
others v D & F Wevell Trust & others
2008 (2) SA 184
(SCA) para 43.
5
Shaik
v Minister of Justice and Constitutional Development & others
[2003] ZACC 24
;
2004 (3) SA 599
(CC)
(2004 (1) SACR 105)
paras 24-25;
Phillips &
Others v National Director of Public Prosecutions
[2005] ZACC 15
;
2006 (1) SA
505
(CC) para 40.
6
Phillips
& others v National Director of Public Prosecutions,
supra,
para 39.
7
Prince
v President, Cape Law Society & others
[2000] ZACC 28
;
2001
(2) SA 388
(CC) para 22.
8
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs &
others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) para 89;
Jaga v Dὂnges NO & another;
Bhana v Dὂnges NO & another
1950
(4) SA 653
(A) at 662G-663A.
9
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
supra
paragraph 90;
Thoroughbred Breeders’
Association v Price Waterhouse
2001
(4) SA 551
(SCA) st 600E-H.
10
Investigating
Directorate: Serious Economic Offences & others v Hyundai Motor
Distributors (Pty) Ltd & others: In re Hyundai
Motor
Distributors (Pty) Ltd & others v Smit
NO & others
[2000] ZACC 12
;
2001 (1) SA 545
(CC) para 21.
11
First
National Bank of SA Ltd t/a Wesbank v Commissioner, South African
Revenue Service & another; First National Bank of
SA Ltd t/a
Wesbank v Minister of Finance
[2002] ZACC 5
;
2002 (4)
SA 768
(CC) para 31 (‘…even fiscal statutory
provisions, no matter how indispensable they may be for the economic
well-being
of the country – a legitimate governmental
objective of undisputed high priority – are not immune to the
discipline
of the Constitution…’)
12
Cipla
Medpro (Pty) Ltd v Aventis Pharma SA, Aventis Pharma SA & others
v Cipla Life
Services (Pty) Ltd &
others
[2012] ZASCA 108
paras 44-45.
13
Thoroughbred
Breeders Association v Price Waterhouse
2001
(4) SA 551
(SCA) at 597H-I and 604F-G;
Bato
Star Fishing (Pty) Ltd v Minister of Environmental
Affairs, supra, para 72.
14
Standard
Bank Investment Corporation Ltd v Competition Commission and others;
Liberty
Life Association of Africa
and others v Competition Commission & others
[2000] ZASCA 20
;
2000
(2) SA 797
(SCA) paras 16-22.
15
Standard
Bank Investment Corporation Ltd
,supra,
paras 19-22.
16
Viking
Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems
(Pty) Ltd & another
2011 (1) SA
327
(CC) para 37;
Joseph & another
v City of Johannesburg & others
2010
(4) SA 55
(CC) para 27;
Grey’s
Marine Hout Bay (Pty) Ltd & others v Minister of Public Works &
others
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA) par 23;
City of Cape Town v Hendricks &
another
[2012] ZASCA 90
; J R de Ville
Judicial Review of Administrative
Action in South Africa
, (2003) para 2
1 6; Cora Hoexter
Administrative Law in
South Africa
2 ed (2012) at 220-227.
17
Viking
Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems
(Pty) Ltd & Another
2011 (1) SA
327
(CC) para 37.
18
Viking
Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems
(Pty) Ltd & another,
supra, para
37.
19
Competition
Commission of SA v Telkom SA Ltd
&
another
[2010] 2 All SA 433
(SCA) para 11.
20
Mahon
v Air New Zealand Ltd & others
[1984]
3 All ER 201
(PC) at 210
b-e
;
General Council of Medical Education
and Registration of the United Kingdom v Spackman
[1943]
2 All ER 337
(HL) at 342F-346A and
Whine
v Dranklisensieraad vir Gebied 34
1967
(2) SA 316
(O) at 321C-G.