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[2021] ZAGPPHC 297
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Mwale v Financial Services Tribunal and Another (92967/2019) [2021] ZAGPPHC 297 (24 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
1.
REPORTABLE:
YES
2.
OF INTEREST TO OTHER JUDGES:
YES
3.
REVISED: 24 May 2021.
CASE
NUMBER:
92967/2019
In
the matter between:
MIGHTY
MWALE
APPLICANT
and
THE
FINANCIAL SERVICES TRIBUNAL
FIRST RESPONDENT
PRUDENTIAL
AUTHORITY
SECOND RESPONDENT
JUDGMENT
COERTZEN,
AJ:
THE
APPLICATION:
[1]
The applicant in this matter participated in an illegal pyramid
scheme. The
present application finds its way to this court by
virtue of the provisions of s 235 of the Financial Sector Regulation
Act, 9
of 2017 (‘FSR Act’). The section provides of
judicial review of orders of the Financial Services Tribunal (‘The
Tribunal’).
[1]
The
notice of motion, which was previously amended, initially sought to
review decisions of both the first and second respondents.
On
conclusion of the argument on 18 March 2021 the applicant applied for
a final amendment of the notice of motion, which I granted.
It
is now beyond doubt that the applicant seeks the following relief:
‘”
1.
Reviewing and setting aside the decision of the
First
Respondent
dated 12 June 2019;
2.
Directing the First Respondent to constitute of
(sic)
new panel hear
(sic)
the reconsideration
application de novo as between the parties…”
–
(emphasis
added).
[2]
THE AUTHORITY AND
THE DIRECTION:
[2]
The second respondent, the Prudential Authority (‘the
Authority’), is
a juristic person which operates within the
administration of the Reserve Bank. The Authority was
established in terms of
s 32 of the FSR Act and is a ‘financial
sector regulator’ as defined in s 1 of the FSR Act.
[3]
On 28 June 2018 the Authority issued a direction (‘the
direction’) in
terms of s 83 of the Banks Act
[3]
against the applicant and against Mighty Solutions CC (‘the
Corporation’). The applicant is the sole member of
the
Corporation.
[4]
The Authority’s reasons
[4]
for its decision to issue the direction were placed before the
Tribunal and before this court.
THE TRIBUNAL AND
THE RECONSIDERATION APPLICATION:
[5]
The Tribunal was established in terms s 219 of the FSR Act. The
decisions
[5]
of the Authority
are subject to reconsideration by the Tribunal on the application of
a person aggrieved.
[6]
The
applicant applied to the Tribunal for a reconsideration of the
decision of the Authority - (‘the reconsideration
application’). On 12 June 2019 the Tribunal dismissed the
reconsideration application. The Tribunal’s written
reasons
[7]
for its decision were
placed before this court. Not satisfied with the outcome of the
reconsideration application the applicant
now applies to this court
for a review of the Tribunal’s decision.
[6]
The Authority opposes the review application. The Tribunal
abides by the outcome.
It was common cause at the hearing of the
review application that the decision of the Authority was subject to
reconsideration
by the Tribunal, and that the decision of the
Tribunal is in turn reviewable by this court.
[7]
Although the applicant was entitled to legal representation
[8]
before the Tribunal, he elected to take part in the proceedings in
person. The Corporation was the second applicant in the
proceedings before the Tribunal. The Corporation is under
business rescue in terms of the relevant provision of the Companies
Act.
[9]
The Tribunal held the
view that the applicant lacked
locus
standi
to act or to appear on behalf of the business rescue practitioner.
This is not an issue before me.
[8]
A reconsideration application must be made in accordance with the
Tribunal Rules,
[10]
must
contain full particulars of the grounds on which the application is
based and must be drafted to conform as far as possible
to a standard
form. The proceedings are to be conducted “
with
as little formality and technicality, and as expeditiously, as the
requirements of the financial sector laws and a proper consideration
of the matter permit
”.
[11]
The person chairing the Tribunal panel may give directions to
facilitate the conduct of proceedings.
[12]
The Tribunal panel
[13]
is not
bound by the rules of evidence but may inform itself “
on
any relevant matter in any appropriate way”
.
[14]
[9]
The reconsideration application must contain the Authority’s
decision letter
and the Authority’s reasons
[15]
and any other information including annexures provided to the
applicant by the Authority. The Authority must furnish the
Tribunal with a bundle of the relevant underlying documents on which
the decision was based together with further reasons, where
necessary.
The
applicant may augment the grounds on which the application is based,
if necessary.
[16]
THE PAPERS IN THE
REVIEW APPLICATION:
[10]
The applicant did not place his statement that he must have submitted
to the Tribunal before
me in the review application. I am left
to determine the review application on the applicant’s founding
affidavit and
on the Authority’s answering affidavit.
[17]
[11]
In support of the review application the applicant annexed the
following annexures to his founding
affidavit:
MM1 - Draft Final
Report dated July 2014 by Mr Johan Kruger (‘Kruger’);
MM2- Progress
report and letter dated 20 April 2017 from Kruger to the Registrar of
Banks;
MM3 - An extract
summary of transactions on the account of the Corporation together
with a letter from ATM Solutions dated 7 June
2019 relating to an ATM
machine placed at a business premises of the Corporation, and an
extract summary of transactions relating
to the ATM;
MM4 - A transcript
of the (partly transcribed) argument before the Tribunal on 11 June
2019;
MM5 - The Tribunal’s
reasons;
MM6 - The
Authority’s reasons.
THE
GROUNDS OF REVIEW:
[12]
The applicant relies on essentially four grounds of review, namely:
i)
That the Tribunal’s decision was influenced by a material error
of
law;
ii)
That the Tribunal’s decision was unreasonable;
iii)
That the Tribunal’s decision was irrational;
iv)
That the Tribunal (specifically the chairman
[18]
)
was biased against the applicant.
THE
LEGAL FRAMEWORK:
[13]
The Authority’s decision to issue the direction was taken in
terms of s 83(1) of the Banks
Act, which provides:
‘
If as a result of
an
inspection conducted under section 12
of the South African
Reserve Bank Act, 1989 (Act No. 90 of 1989), the Authority is
satisfied that any person has obtained money
by carrying on the
business of a bank without being registered as a bank… the
Authority
may in writing direct
that person to
repay, subject to the provisions of section 84 and in accordance with
such requirements and within such period as
may be specified in the
direction, all money so obtained by that person in so far as such
money has not yet been repaid, including
any interest or any other
amounts owing by that person in respect of such money.’
–
(emphasis added).
[14]
In terms of s 84 of the Banks Act the Authority must, simultaneously
with the issuing of a direction
under section 83(1), appoint a
repayment administrator to manage and control the repayment of money
in compliance with the direction,
provided that the Authority may
afford the person subject to the direction a reasonable period of
time to devise and implement
an alternative plan of action that is in
the interests of the investors and to which the Authority has no
objection. The
repayment administrator is obliged, amongst
other duties, to take possession of all the assets of the person
subject to the direction.
[19]
It is common cause that Kruger was appointed as repayment
administrator.
[15]
In terms of s 1 of the Banks Act, “the business of a bank”
means—
“
(a)
… (d)
;
(e)
any other activity which the Authority
has,
after consultation with the Governor of the Reserve Bank,
by
notice in the Gazette declared
to be
the
business of a bank
, but does not include…”
–
(emphasis added).
[16]
The Registrar of Banks
[20]
extended the definition of “the business of a bank” to
include participants in pyramid and related schemes in terms
of s
1(e), as follows”:
[21]
‘
In
terms of paragraph (e) of the definition of “the business of a
bank” in section 1 of the Banks Act, 1990 (Act 94
of 1990), and
after consultation with the Governor of the South African Reserve
Bank, I, Christo Floris Wiese, Registrar of Banks,
hereby declare the
activities set out in paragraphs 2 and 3 of the Schedule to be the
business of a bank.
C
F WIESE,
Registrar
of Banks
SCHEDULE
1.
Definitions.—In this Schedule, “the Act” means the
Banks Act,
1990 (Act 94 of 1990), and any word or expression to which
a meaning has been assigned in the Act shall bear such meaning and,
unless the context otherwise indicates—
“
business practice”
includes-
(a)
any agreement, arrangement or understanding, whether legally
enforceable or not, between
two or more persons; or
(b)
any scheme, practice or method of trading, including any method of
marketing or distribution.
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—
(a)
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—
(i)
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
(ii)
new participating members are required to acquire movable or
immovable property,
rights or services;
(b)
on or after the promotion, transfer or change of status of the
participating members
or new participating members within the
business practice; or
(c)
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.
’ –
(‘the
Notice’).
It
was common cause before the Tribunal that the Authority relied solely
on the extended definition under s 1(e) of the Banks Act,
read with
the Notice.
[17]
Section 12(1)
of the
South African Reserve Bank Act
[22
]
provides:
‘
If the Governor or a
Deputy Governor
has
reason to suspect that any person, partnership, close corporation,
company or other juristic person who or which is not registered
in
terms of the Banks Act…is carrying on the business of a bank
…,
he or she
may
direct the Registrar of Banks
…,
to cause the affairs or any part of the affairs of such person,
partnership, close corporation, company
or other juristic
person to be inspected by an inspector appointed under section 11
(1),
in order to
establish whether or not the business of a bank
…
is
being carried on
by that person, partnership, close corporation, company or other
juristic person.’
–
(emphasis
added)
.
As
from 1 April 2018, Part 4 of Chapter 9 of the FSR Act apply
mutatis
mutandis
to inspections in terms of subsection (1).
[23]
[18]
A reconsideration application constitutes an internal remedy as
contemplated in section 7(2)
of PAJA (Promotion of Administrative
Justice Act, 3 of 2000).
[24]
I
have already pointed out the applicant seeks to review the Tribunal
order and to remit the matter to a differently constituted
Tribunal
panel. It is sometimes difficult for a court to determine the
limits of its own power. In
Doctors
for Life International v Speaker of the National Assembly and Others
(CCT12/05)
[2006] ZACC 11
;
2006 (12) BCLR 1399
(CC);
2006 (6) SA 416
(CC) (17 August 2006) the Constitutional Court held:
“
Courts
must be conscious of the vital limits on judicial authority and the
Constitution’s design to leave certain matters
to other
branches of government. They too must observe the constitutional
limits of their authority. This means that the judiciary
should not
interfere in the processes of other branches of government unless to
do so is mandated by the Constitution.”
[25]
It
seems to me that the Tribunal was tasked with a reconsideration of
the Authority’s decision and the exercise of a discretion
by
the Authority to issue the direction. That the Tribunal did by
reconsidering the available facts placed before the Authority
in the
context of the indicated legislative framework. This court must in my
view similarly consider the application for review
of the Tribunal
order, against the same background and in the same context, together
with the facts put forward in the affidavits
in the review
application. I agree with the Tribunal’s assessment of the
legal position that the Tribunal had no jurisdiction
over the
decisions of the Governor or Deputy Governor of the South African
Reserve Bank. The decision of the Deputy Governor
to direct the
Authority to investigate the affairs of TVI and related persons and
entities, was not open for reconsideration by
the Tribunal.
THE FACTS BEFORE
THE TRIBUNAL:
[19]
It is common cause that during 2010 the applicant joined an illegal
pyramid scheme known as TVI
[26]
- (‘TVI’) ; and that he participated in the scheme.
It is not disputed that the Tribunal correctly held that
the nature
of the business of TVI was accurately described by the Supreme Court
of Appeal in
Kruger
v Joint Trustees of the Insolvent Estate of Paulos Bhekinkosi Zulu
and Another
[2016] ZASCA 163
;
[2017] 1 All SA 1
(SCA), as follows:
[27]
“
[2]
…TVI was described on its website as: "an International
Direct Selling Company
having Alliances and Channel partners all
across the world" and as "one of the fastest growing
companies in the Network
Marketing Industry today". It claimed
to operate in over 160 countries across the globe and that its head
office was in London.
[3]
The business entailed the marketing and sale of a travel voucher,
mostly in electronic
form. The voucher purportedly gave members
significant discounts for international travel and accommodation with
"travel partners"
including the Hilton Hotels, Lufthansa,
Swissair, South African Airways and many other reputable companies.
It had to be bought
electronically at USD2503 via TVI's website. Each
had a unique number and a member purchasing it was accorded a
particular status,
such as an "Associate" or "Distributor".
The member would be granted certain rewards such as a seven day
holiday
at a partner's three to five star hotel or resort, a free
companion flight and a lifetime access to TVI's promotions and
discounts
in relation to air travel, accommodation, car hire and
travel insurance.
[4]
The structure of the institution and its business was that of a
typical pyramid scheme.
A member had to traverse two boards, the
"traveller" and the "express" boards. Upon
joining, members were initially
given positions at level one of the
traveller board and would thereafter travel across four levels until
they exited the first
(traveller) board. On exiting the first board
they received a reward of USD250 in cash and USD250 in vouchers
("double your
investment"!). But to qualify for the rewards
they had to "sponsor" two new entrants. A member exiting
the traveller
board would then go on to the first level of the
express board where the exit reward was USD10 000. Thereafter the
member could
go on to the next express board, ad infinitum. A member
would also earn 5 to 10% of sales made by his or her "downline"
(those that he sponsored and those sponsored by them),and be eligible
for numerous other prizes. As a marketing gimmick, TVI's
presentation
displayed endorsements of network marketing companies by Messrs
Warren Buffet, Bill Clinton, Robert Kiyosaki and Donald
Trump.”
[20]
I pause to point out that the exact terms of the appointment of the
inspectors by the Deputy
Governor of the Reserve Bank, and the exact
terms of the Authority’s direction, were not placed before me.
It is however
not in dispute that the Tribunal correctly held in this
regard:
“
A
Deputy Governor of the Reserve Bank had reason to suspect that TVI
Express (‘TVI’) was carrying on the business of
a bank or
a mutual bank, whilst not being registered, and inspectors were
appointed on 18 March 2011 as temporary inspectors of
inter alia,
TVI, a number of named role players, and
‘any related
persons and entities’
.
The
purpose of the appointment was
to establish whether or not the
business of a bank
or mutual bank was being carried on
by TVI
and any related person or entity
in contravention of the Banks
Act.
During
the inspection and as a consequence, the Authority became satisfied
that the applicants were a related entity and had obtained
money from
members of the public by carrying on the business of a bank without
being registered as a bank. Subsequently,
on 28 June 2018, the
Authority issued a directive, in which the applicants were directed
to repay all money obtained in contravention
of the Banks Act
.
Simultaneously, the Authority appointed a repayment administrator, Mr
JG Kruger.”
–
(added emphasis).
[21]
The Tribunal held that on the undisputed facts, that TVI conducted a
business practice falling
within the terms of the Regulation, in that
it obtained money, directly or indirectly, from members of the public
as a regular
feature of a business practice, with the prospect of the
participating members receiving payments or other money-related
benefits,
directly or indirectly from funds accepted or obtained from
participating members or new participating members in terms of the
business practice, as contemplated in para 2(c) of the Regulation.
The applicant contends that his involvement in TVI did
not fall foul
of the extended definition as contemplated in paragraphs 2 and 3 of
the Schedule. The following is stated in
the Tribunal’s
reasons:
“
[The applicant]
repeatedly
relied on the reports of the inspector where it was stated that his
‘involvement in TVI is only substantiated to
the extent of our
review of his banking records. We
[the inspectors]
therefore,
have no independent, direct evidence that he conducted the business
of a bank in contravention of the Banks Act.’
The
statement must be read in context and bearing in mind that
independent, direct evidence is never essential to establish a fact
–
indirect and circumstantial evidence often carries more weight.”
[22]
It appears from the Tribunal’s reasons, from which I borrow
liberally, that the Tribunal
considered,
inter alia
, the
following facts:
i)
The applicants before the Tribunal are or were not TVI;
ii)
The inspector’s reports added that it was suspected that most
of the applicant’s
activities were conducted either on a cash
basis and/or through unidentified accounts and that sufficient
evidence exists to substantiate
the submission that the Banks Act had
been contravened;
iii)
The Authority explained the standard practice (of TVI) in South
Africa as follows:
a)
That the investor purchased a block on the traveler board for
R2,700.00;
b)
Participants were advised that they would receive R 5 400.00 on
completion of
the traveller board and R108,000.00 on completion of
the express board;
c)
No actual cash returns were paid but that TVI credited the investors
with US
$500 and UD $10,000 when cycling out of the respective boards
- [The applicant admitted that he ‘cycled out’, which
explains the number of vouchers he had left];
d)
The member then converted the credits into vouchers on the website
and sold them
to other members of the public at the rate of R2,700.00
per voucher in order to realise the financial benefit from the
scheme;
iv)
The applicant did not deny on the papers that he had 19 (nineteen)
registered profiles;
v)
That the applicant had the highest “ranking” within TVI
South Africa,
namely that of “Presidential Associate”.
This ranking entitled him to 10% commission for sales in his
“downlines”;
vi)
A further 17 (seventeen) registered profiles were found on a list of
TVI under the
surname ‘Mwale’. The names linked to
these profiles were all family members of the applicant and they all
used
the applicant’s residential address;
vii)
The applicant relied on a schedule referred to as “MM”,
which schedule purported
to be a ‘blow-by-blow’ rebuttal
of the nature, purport and motive of the transactions relied on by
the Authority;
[28]
viii)
The applicant admitted that he had sold vouchers to the sum of
R116,100.00 to persons in East
London, Kokstad, Bracken, Maclear and
diverse places in Gauteng. In some instances the applicant sold
eight or nine vouchers
to a single person. He sold vouchers to
one Dumisane on at least three occasions. The applicant did not
explain how
and why this happened. These amounts were deposited
in the bank account of the Corporation;
ix)
The applicants before the Tribunal admitted that they have lost money
in the scheme
because after the scheme was closed, they had to
dispose of the vouchers which they thought they could sell. It
appeared
from the argument before the Tribunal that this amounted to
some 98 vouchers, which represents vouchers to the value of
R264,600.00;
x)
There were numerous deposits or amounts loaded onto the ATM or
Smartbox systems
into the Corporation’s account of amounts at
multiples of R2,700.00. According to the applicant these
payments were
cash receipts in respect of petrol and other sales at
his retail outlets which were then ‘banked’ onto the ATM
or Smartbox
systems. The applicant relied on a letter from ATM
Solutions which confirms that he had an agreement with them to upload
a cash machine at Meadowlands;
xi)
The applicant presented a printout of cash receipts at Engen
Meadowlands to show that
large amounts of cash were daily loaded onto
the ATM system.
THE
TRIBUNAL’S EVALUATION OF THE FACTS:
[23]
I again borrow from the Tribunal’s reasons.
[24]
The Tribunal held that the question is whether the applicants were
parties to any understanding,
whether legally enforceable or not,
with TVI in conducting the scheme as described. This depended on the
applicants’ involvement
in the scheme, as detailed in the
Authority’s reasons.
[25]
The information relied on by the applicant in the purported
blow-by-blow rebuttal, MM
[29]
,
were refused by the applicant when it was first sought on 2 December
2014. The Tribunal held that now, after the s 83 decision,
the
applicants before the Tribunal have an explanation. The Tribunal held
however that the document MM “
does
not rebut but rather confirms the opinions formed”
.
[26]
In light of the applicants’ admission referred to in para
22(viii) above, and further in
light of the fact that the amounts in
question were deposited into the banking account of the Corporation,
the Tribunal rejected
the applicants’ denial that they have
ever received money from members of the public.
[27]
The Tribunal held that the applicants have no credible explanation
for the numerous deposits
or amounts loaded onto the ATM or Smartbox
systems into the second applicant’s account of amounts at
multiples of R2,700.00.
The coincidence of all these being related to
cash petrol sales at two different locations, was held by the
Tribunal as simply
too good to be true. The Tribunal therefore
rejected the explanation on the facts.
[28]
The Tribunal held that the letter from ATM Solutions referred to in
para 22(x) above, confirming
an agreement in respect of a cash
machine at Meadowlands, proves nothing. According to the Tribunal the
question is not whether
cash had been received by either of the
applicants but why it had been received.
[29]
The Tribunal held that the printout of cash receipts referred ton in
para 22(xi) above, similarly
does not prove anything in the
applicant’s favour. That was also never in dispute and
was in fact taken into account
by the inspector. The Tribunal
held that what strikes one is that the printout covers the period 11
February 2011 to 15 May
2011, while MM deals with the period 13
August 2010 to 2 May 2012; that the printout relates to Meadowlands
only; that the daily
takings on the printout were nearly all in
excess of R100,000.00 while the amounts on MM are, save for two, less
than R45,000.00;
and that not a single transaction appearing on MM
appears on the printout. The Tribunal also held that the
payments in multiples
of R2,700.00 made to a contractor, to a
Quickshop supplier, for airtime vouchers and the like, raise the same
questions.
[30]
The Tribunal held that the explanation that the vouchers were goods
that were sold does not change
the fact that accepting money for the
vouchers fell within the scope of the prohibition. Importantly,
schedule MM deals with
FNB account number 62044324911 only and the
‘suspicious’ transactions identified by the inspectors in
that account.
[31]
The Tribunal held that the applicants failed to deal with the
particulars of the applicant’s
platinum FNB account
620839986300, which indicate “probable investor deposits”
of R670,000.00 and “probable voucher
purchases” of
R62,100.00.
[32]
The applicant did not dispute the allegations concerning the
transactions reflected on the platinum
account with other known TVI
operators living as far apart as the Northern Cape and the Eastern
Cape involving sales of R40,500.00,
R10,800.00 and R54,000.00 and
purchases of R62,100 from another known operator.
[33]
On the facts the Tribunal was satisfied that the applicants before
the Tribunal obtained money
by carrying on the business of a bank
within the meaning of the Regulation. In this regard the Tribunal
held:
“
[T]
he
applicants obtained money, directly or indirectly, from members of
the public as
a regular feature of a business practice
(i.e., the TVI scheme)
with the prospect of the
participating members receiving payments or other money-related
benefits, directly or indirectly (a) on
or after the introduction of
new participating members of the public to the scheme, from which, in
their turn, money is accepted
or obtained, directly or indirectly,
as
a regular feature of the TVI scheme
or (b) on or after the
promotion, transfer or change of status of the participating members
or new participating members within
the
business practice
;
or (c) from funds accepted or obtained from participating members or
new participating members in terms of the scheme.”
–
(emphasis added).
[34]
In dismissing the reconsideration application the Tribunal held that
there was no reason to reach
a different conclusion from that reached
by the Authority in its reasons.
THE
AUTHORITY’S REASONS:
[35]
I have already pointed out that the applicant did not place the
statement that he submitted to
the Tribunal, before me. The
Authority’s reasons (without the annexures referred to
therein), form part of the founding
affidavit. In my view it is
necessary to have regard to the Authority’s reasons to
determine whether the Tribunal correctly
dismissed the
reconsideration application. What follows hereafter is a summary of
certain relevant facts as they appear from the
Authority’s
reasons.
[36]
The Deputy Governor had reason to suspect that,
inter alia
,
TVI Express, which is not registered as a bank, was carrying on the
business of a bank. The Deputy Governor directed the
Authority
to cause the affairs of TVI Express to be inspected by temporary
inspectors appointed in terms of s 11(1) of the Reserve
Bank Act.
Kruger and two others were appointed as temporary inspectors of,
inter alia
, TVI Express.
[37]
When making the decision the Authority was aware of,
inter alia
,
the following:
i)
TVI is an international scheme operating inter alia as
Travel
Ventures International
and
TVI
;
ii)
TVI surfaced in India in April 2008;
iii)
A similar summary of the nature and business of TVI as expounded by
the SCA in
Kruger v Joint Trustees of the Insolvent Estate of
Paulos Bhekinkosi Zulu and Another
, is set out in the Authority’s
reasons;
iv)
TVI was closed in South Africa during 2011;
v)
The scheme markets the sale of travel vouchers which purportedly
gives the recipient
significant discounts for international travel
and accommodation. These vouchers could be purchased (in
electronic format
and rarely printed) from the TVI web site or from
distributors who “cycled” from the TVI board system;
vi)
TVI fraudulently claimed a relationship with certain travel partners
and benefits
appeared to be fraudulent. It appeared to the
inspectors that TVI paid for the accommodation (benefits limited to
Indian
citizens) to create a sense of legitimacy for the scheme.
All that remained as potentential benefit to a participant is the
reward structure of what is inappropriately known as “multi-level
marketing”, by marketing and recruiting new participants
to
TVI;
v)
The concept of TVI is based on boards (the “Traveller Board”
and
the “Express Board”), consisting of certain levels.
It is not necessary for purposes hereof to provide more detail
than
what already appears from the above, suffice it to say that
participants “cycle out” from the boards, move up
in
ranking and earn commission. The standard practice in South
Africa is that a participant purchases a voucher for R2,700.00.
Participants are advised that they will receive R5,400.00 when
cycling out from the Traveller Board and R108,000.00 when cycling
out
from the Express Board. The distributor becomes eligible to
earn a certain percentage as residual income from every sale
in their
“down-line”, depending on their rank. TVI offered
unrealistically lucrative rewards to the various ranks
for further
sales.
vi)
The inspectors have investigated more that 170 different institutions
that participated
in TVI Express; have obtained and executed more
than 140 search warrants; have submitted more than 300 reports to the
Authority
pertaining to TVI; have requested information relating to
more than 10,000 different bank accounts of distributors and have
opened
more than 100 case with the South African Police Service for
investigation;
vii)
The Authority has issued more than eighty s 83 directives to
different institutions who
participated in TVI, and has appointed
Kruger as repayment administrator;
viii)
As a result of the inspection conducted under section 12 of the
Reserve Bank Act the authority
was satisfied that the applicants
before the Tribunal obtained money by carrying on the business of a
bank without being registered
or authorized to do so;
[38]
The Authority received the following reports from the inspectors
pertaining to the institution
(the applicant and the Corporation):
i)
A report dated 7 July 2014, a copy of which is attached to founding
affidavit
in this court
[30]
;
ii)
A report dated 20 April 2017, a copy of which is attached to the
founding affidavit
in this court;
[31]
iii)
A report dated 19 February 2018 which was not placed before the
court.
[39]
On 28 June 2018 the Authority issued a direction in terms of s 83 of
the Banks Act, to the applicant
and to the Corporation, and appointed
Kruger as repayment administrator in terms of s 84. The
repayment administrator served
the s 83 direction on the applicant
and the Corporation, as well as a rule
nisi
issued on 26
November 2018 under case number 84978/2018 in this court, which order
confirmed Kruger’s duties as repayment
administrator.
[40]
When issuing the s 83 direction the Authority took into account,
inter alia
, the facts referred to above, as well as the
contents of the three inspection reports, which included:
i)
The number of profiles and ranking of the applicant as a TVI
distributor;
ii)
The analysis of the bank account of the Corporation, specifically the
number
of transactions classified as “probable investor
deposits” amounting to R866,700;
iii)
The unwillingness of the applicant to allow Kruger access to his
premises, notwithstanding
a valid search warrant issued in this court
under case number 30346/2014, as a result of which Kruger was unable
to obtain further
documentation or particulars of members of the
general public that deposited money with the applicant and the
Corporation;
iv)
The institution accepted at least forty deposits in contravention of
the Banks Act;
v)
The analysis of the Bank account of the applicant, specifically the
transactions
classified as “probable investor deposits”
of R670,700.00;
vi)
There is
prima facie
evidence that the institution contravened
the Banks Act;
vii)
Kruger summoned the applicant to produce documents pertaining to
TVI. He also notified
the applicant to elaborate his
involvement in TVI Express and why his conduct was not the business
of a bank;
viii)
The applicant admitted that he participated in the TVI Express
scheme;
ix)
The applicant, through his legal representatives, provided a blunt
denial and alleged
that he only participated in the TVI Express
scheme to take advantage of the holiday specials and discounted
packages, of which
the applicant provided no evidence that he ever
did. The applicant also denied having any documents pertaining
to TVI Express;
x)
The applicant elected not to answer the inspector’s questions;
xi)
Sufficient evidence existed to substantiate Kruger’s findings
that the applicant
and the Corporation unlawfully obtained an
aggregate amount of least R1,537,400.00 in contravention of the Banks
Act;
xii)
Neither the applicant nor the Corporation are registered to carry on
the business of a
bank. The answers provided by the applicant and the
content of the reports satisfied that Authority that the
‘institution’
obtained money by carrying on the business
of a bank without being registered or authorised to do so.
[41]
The Authority had reason to suspect that the acceptance of deposits
from the general public appears
to be a regular feature of the
business practices of the applicant and the Corporation and that
their business practices are built
around, and dependent on
depositors listing further deposits for the businesses. The
Authority expressed the view in its
reasons that the business
practices are unsustainable without the solicitation of new deposits.
[42]
Based on the above and based on the inspection reports, the Authority
had reason to suspect that
the applicant and the Corporation have
contravened s 11(1) of the Banks Act.
[32]
THE INSPECTION
REPORTS:
[43]
In addition to what has already been stated above, what follows
hereafter is a summary of certain
relevant facts as they appear from
the inspector’s reports.
[44]
The Deputy Registrar of Banks appointed the inspectors to inspect the
business practices of amongst
others, TVI Express Makers and/or TVI
Express and/or any related person or entity.
[45]
The applicant was linked to the investigation during an investigation
of the offices of an entity
referred to as Yatra Ventures South
Africa, when the inspectors found a list of all ranked TVI members in
South Africa. It
appeared from the list that the applicant had
three registered profiles and the ranking of “Presidential
Associate”.
The inspectors identified sixteen other
profiles all of which listed the applicant’s residential
address. These were
in the names of the applicant’s wife
and daughters.
[46]
On an FNB account of the Corporation the inspectors identified,
inter
alia
, (a) “probable investor deposits” of R866,700.00
(40 transactions during the period 3 August 2010 to 2 May 2012), (b)
“possible investor deposits” of R1,500.00 (1 transaction
on 28 January 2010, (c) “probable voucher purchases”
of
R610,200.00 (10 transactions during the period 13 August 2010 to 30
April 2012) and (d) “possible voucher purchases”
of
R5,271,698.64 (99 transactions during the period 5 August 2010 to 31
May 2012).
[47]
The inspectors suspected that most of the applicant’s TVI
activities were conducted either
on a cash basis and/or through
banking accounts yet to be identified.
[48]
In the report of 20 April 2017, and in respect of an FNB platinum
cheque banking account in the
name of the applicant, the inspectors
identified (a) “probable investor deposits” of
R670,700.00 (34 transactions during
the period 18 September 2009 to
11 June 2016, of which 2 relate to one PE Lotlhare who is the subject
of a separate TVI investigation,
and 2 relate to one I
Nethavhani, a known TVI operator in the Northern Cape and 1 to a Dr
Mandlakazi, a known TVI operator in the
Eastern Cape), and (b)
“probable voucher purchases” of R62,100.00 (5
transactions during the period 1 December 2009
to 28 April 2010.
These were all referenced on the applicant’s account as TVI
transactions and matched to an FNB account
belonging to another known
TVI operator).
THE APPLICANT’S
CASE IN THE FOUNDING AFFIDAVIT:
[49]
The applicant contends: (a) That the decision of the Tribunal was
materially influenced by an
error of law (in failing to properly
interpret the definition of ‘the business of a bank’);
(b) That the decision of
the Tribunal was not rationally connected to
the information before it; (c) That the decision of the Tribunal was
unreasonable,
and; (d) that the Tribunal was biased against the
applicant in favour of the Authority.
[50]
The applicant avers that he joined TVI upon the invitation of one S
Maziya Sibeko, with the intention
of benefitting from discounted
offers on car hire, accommodation, and flights. He was not
aware that TVI was a pyramid scheme.
The applicant admits
involving his family members to participate in TVI, but he denies
that he ever solicited or received funds
from them, because he (the
applicant) paid for their vouchers to enter the scheme. If the
applicant recruited other people
to the scheme his benefits from
participation in the scheme would increase. According to the
applicant his participation
in the scheme was as a person who bought
vouchers, and not as a person who actively sold or accepted or
obtained money from members
of the public. He never campaigned
or advertised or recruited new members to TVI. He describes
himself as a victim
of TVI who was duped into purchasing vouchers
with the view of benefitting from the discounts promised. The
applicant denies having
conducted the business of a bank in
contravention of the Banks Act. The applicant contends that out
of 23,000 transactions
only 40 on the banking account of the
Corporation might have been associated with TVI. This
constituted some 0,17%.
As far as his personal banking account
is concerned only 5 out of 9,865 transactions were suspected to be
associated with TVI.
This in turn constituted some 0,05%.
[51]
The applicant avers that the Tribunal was biased against him and in
favour of the Authority.
He relied on a partially transcribed
argument before the Tribunal in support. The applicant avers
that he was interrupted
when making submissions and that he was
unable to present his case properly. He was shouted at and the
body language of the
chairman confirmed his bias in favour of the
Authority. The applicant avers that evidence was presented at
the hearing rebutting
the findings of the inspection reports, but the
Tribunal failed to take such evidence into account.
[52]
As I have already indicated the applicant’s statement was not
placed before the court.
The transcription consists only of the main
arguments presented at the hearing before the Tribunal.
[53]
The applicant avers that he has been prejudiced by the decisions of
the respondents in that he
has been deprived of his property due to
its seizure and removal.
THE
AUTHORITY’S CASE IN THE ANSWERING AFFIDAVIT:
[54]
The Authority, correctly in my view, points out that the appointment
of the repayment administrator
was made by Authority in terms of s 84
of the Banks Act, and it is as such not a decision subject to review
in these proceedings.
[55]
The Authority explains the TVI scheme in its answering affidavit and
refers to the discovery
of the list by the inspectors, linking the
applicant and his aforementioned profiles to the scheme. It is
not necessary to
repeat the detail in this judgment. The
conduct of the applicant, through the TVI scheme, was determined to
be the business
of a bank in contravention of s 11 of the Banks Act.
[56]
On 28 June 2018 the Authority issued the s 83 direction in terms of
which the applicant and the
Corporation were directed to repay all
monies obtained in contravention of the Banks Act.
[57]
On 5 December 2018 the rule
nisi
under case number 84978/2018
in this court together with the direction and a letter informing the
applicant of the amount unlawfully
obtained, were served on the
applicant. The applicant did not oppose the confirmation of the
rule
nisi
on the return date.
[58]
The Authority contends that the applicant’s averments of bias
amounts to no more than a
discontent over the factual and legal
findings of the Tribunal. The applicant had previously also
laid a complaint against
the judge who issued the rule
nisi
.
[33]
The Authority contends that the transcript of the proceedings does
not bear out any of the criticisms of the applicant against
the
chairman.
[59]
The applicant’s reference to the small percentage of TVI
related transactions involved,
ignores “
the regular features
of the scheme in which the applicant admittedly participated”
.
The extended definition does not specify the number of times one must
receive or obtain money before falling foul of the
regulation and the
definition of the business of a bank. It is contended that the
obtaining or receipt of money must be regular
feature of the business
practice of the scheme.
[60]
The inspectors reviewed the statements of the applicant’s FNB
banking account for the period
24 June 2009 to 22 October 2016. The
statements reflected 8,071 transactions which comprised 1,848 inflows
for an aggregate amount
of R59,519,015.76 and 6,223 outflows for an
aggregate amount of R59,514,919.44. On 22 October 2016 the account
was overdrawn by
an amount of R49,041.32.
[61]
The inspectors reviewed the statements of the Corporation’s FNB
banking account for the
period 31 July 2010 to 31 May 2012. The
statements reflected 22,978 transactions consisting of 14,779 inflows
for an aggregate
amount of R207,860,432.00 and 8,199 outflows for an
aggregate amount of R208,985,843.48. On 31 May 2012 the closing
balance on
the account was an amount of R1,831,480.39.
[34]
[62]
The Authority points out that the applicant provides no proof that he
ever took advantage of
the alleged discounted offers.
[63]
As I have already pointed out the applicant did not reply to the
Authority’s answer.
MATERIAL
ERROR OF LAW?
[64]
The applicant’s argument on review boils down to a contention
that the Tribunal materially
erred in its interpretation of “the
business of a bank” in terms of the extended definition, and in
terms of the Notice.
As I understand the argument, the
applicant contends that his involvement in TVI was not a regular
feature of his (the applicant’s)
business practice. In
support of the argument the applicant relied on the finding of Yekiso
J in
Registrar
of Banks v Net Income Solutions CC and others
[2016] JOL 37103 (WCC):
[35]
“
The
acceptance of money from members of the public must be a regular
feature of a business practice conducted by the entity concerned.
In
this regard not only was the acceptance of money from the public a
“regular feature” of NIS’s business, it
was the
core feature of the business. This is amply demonstrated by an
analysis of NIS’s business account conducted by the
inspectors.
The inspectors discovered that a total amount of R812,345,892.49
flowed into NIS’s account. Of that amount, deposits
received
from participants in the scheme constituted R805,973,697.33. Based on
this analysis, deposits received from participants
in the scheme
constituted 92,2% of all money received by NIS in its business
account. Based on this evidence, there can thus be
no doubt that
acceptance of money from the public was the very purpose of the
scheme and, therefore, a regular feature of its business
practice.”
[36]
[65]
The Banks Act was originally called the Deposit-taking Institutions
Act. It was enacted
to provide for the regulation and
supervision of public companies taking deposits from the public and
matters connected.
–
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).
[37]
The primary meaning
of “the business of a bank” as defined in s 1 of the
Banks Act 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’
[38]
In
terms of paragraph (d) of the definition “the business of a
bank” is also defined as:
‘
(d)
the obtaining, as a regular feature of the business in question, of
money through
the sale of an asset, to any person other than a bank,
subject to an agreement in terms of which the seller undertakes to
purchase
from the buyer at a future date the asset so sold or any
other asset;’
However, as pointed
out by the SCA in
Corpclo
2290 CC t/a U-Care v Registrar of Banks:
[39]
“
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’.”
[66]
It is so, as contended by the applicant, that the court in
Registrar
of Banks v Net Income Solutions CC and others
found that the
acceptance of money from members of the public must be and was in
fact found to be a regular feature of the business
of the respondent
in that matter. The learned judge held:
“
[66]
Based on the evidence as a whole it is quite clear that the NIS
scheme involves the acceptance
of deposits from the general public as
a regular feature of the scheme.”
[67]
I do not think that the judgment in
Registrar
of Banks v Net Income Solutions CC and others
is
authority for the proposition that transactions involving the
applicant before me, do not fall within the extended definition.
The Notice does not require the acceptance or obtaining of money to
be a regular feature of the business of the applicant.
All that
is required in terms of paragraph 2 of the Notice is that the
“activity”
[40]
must be “
a
regular feature of
a
business practice
”
– (emphasis added), which includes any agreement, arrangement
or understanding between two or more persons or any scheme,
practice
or method of trading, including any method of marketing or
distribution (as contemplated in the Notice). It is not
disputed that the activities and the business practice of TVI fell
within the extended definition as contemplated in the Notice.
It appears to me that on the facts the Tribunal interpreted “business
practice” as defined in Regulation 1 of GN498,
and as employed
by the Registrar in Regulations 2 and 3 of the Notice, to mean (and
to be) a reference to the business practice
of the TVI scheme, in
respect of which an agreement, arrangement or understanding existed
between TVI and the applicants in conducting
the scheme. The
Tribunal held that the acceptance or obtaining of money, directly or
indirectly, from members of the public
by the applicants, was a
“regular feature” of the TVI scheme. This was not
disputed by the applicant. The
Tribunal found on the
facts that the applicants before the Tribunal obtained money,
directly or indirectly, from members of the
public as a regular
feature of the TVI scheme, with the prospect of the participating
members receiving payments or other money-related
benefits, directly
or indirectly (a) on or after the introduction of new participating
members of the public to the scheme, from
which, in their turn, money
is accepted or obtained, directly or indirectly, as a regular feature
of the TVI scheme or (b) on or
after the promotion, transfer or
change of status of the participating members or new participating
members within the business
practice; or (c) from funds accepted or
obtained from participating members or new participating members in
terms of the scheme.
The Tribunal held that there was no reason for
it to reach a different conclusion from that reached by the
Authority. The Tribunal
was satisfied on the facts that the
applicants conducted the business of a bank as contemplated in the
extended definition.
[68]
From what I have stated above I agree with the Tribunal’s
interpretation of the Notice
and with the Tribunal’s evaluation
of the facts and the conclusion reached. It follows therefore
that the applicant
has not persuaded me that the decision of the
Tribunal was influenced by a material error of law.
DECISION
OF THE TRIBUNAL UNREASONABLE AND IRRATIONAL?
[69]
The applicant also argued that the Tribunal order is reviewable
because no reasonable decision-maker
would have reached the decision
reached by the Tribunal. It was contended that the Tribunal’s
decision is irrational
and unreasonable. According to the
argument the Tribunal did not properly take into account that the
applicant was a victim
of TVI; that the investigation reports
concluded that there was no evidence of the applicant’s
involvement in the TVI scheme;
that only some 0,0005% of transactions
(5 out of 9.865) went through the applicant’s account as
“probable” (not
proven) TVI transactions over a period of
9 years; that the applicant only had immediate family members in his
profile; that he
paid for them (as recruiter) and they never did.
[70]
In view of the facts before the Tribunal as appears from the reasons
and further based on the
facts as they appear from the Authority’s
reasons, I am not persuaded that the Tribunal decision was
unreasonable or irrational.
In my view there were sufficient facts
before the Tribunal to justify the conclusion that it should not
interfere with the discretion
exercised by the Authority.
[71]
As far as the argument is concerned that the applicant must be seen
as separate from the Corporation,
it must be borne in mind that the
applicant is the sole member of the Corporation. The benefit
flowing from the use by the
applicant of the Corporation’s
banking account in conducting the business of a bank in contravention
of the Banks Act, was
ultimately that of the applicant.
[72]
It then follows that in my view there is no merit in the applicant’s
argument that the
Tribunal’s decision was irrational and/or
unreasonable.
[73]
The applicant’s complaint that he is still being deprived of
his property was not a relevant
consideration before the Tribunal.
In my view it is also not a relevant consideration in the review
application. The
taking into possession by the repayment
administrator of the applicant’s property, and the legal
consequences flowing from
such seizure, are regulated by s 84 of the
Banks Act. It is not a decision subject to review in these
proceedings.
BIAS:
[74]
In support of this ground the applicant relied on the aforesaid
transcript of the proceedings
before the Tribunal. The
applicant avers in his founding affidavit:
a)
That he “
was being interrupted when making submissions and
hence could not present
[his]
case properly”
;
b)
That the chairman “
could be seen to be advancing”
the Authority’s case but when the applicant questioned this, he
was shouted at and stopped from proceeding with his “
inquisition
of the chairperson’s conduct”
;
c)
That the body language of the chairman confirmed his bias in favour
of the Authority
in that when the chairman asked the applicant a
question, the chairman would always look in the direction of the
Authority’s
legal representatives “
almost as if he was
seeking approval”
from the Authority;
d)
That the Tribunal failed or neglected to take into account the
evidence that
was presented “
rebutting the findings of the
Reports in respect of the transactions that were suspected to be
associated with the TVI business”
. It is alleged that
the Tribunal still made the decision it made despite the transactions
being explained in the aforesaid
“blow-by-blow”
explanation placed before the Tribunal.
[75]
I have already indicated that the transcript contains in the main the
argument presented at the
hearing before the Tribunal. It runs into
some 79 pages of typed record and ends abruptly during the
applicant’s argument
in reply.
[76]
The following appears evident from the transcript:
a)
The applicant was not interrupted when making his opening remarks.
While
not legally represented, the applicant fully appreciated the
nature of the proceedings before the Tribunal;
b)
The applicant was given considerable leeway to present his case and
he alluded
to the background leading up to the reconsideration
application, without interruption or objection from any member of the
panel
or from the Authority’s counsel;
c)
The “blow-by-blow” explanation relied on by the applicant
before
the Tribunal, was the subject of considerable debate;
d)
When the chairman pointed out to the applicant that he had failed to
deal with
the transactions on his personal account (presumably in his
written statement), the chairman did not, as the applicant suggests,
prevent the applicant from providing an explanation. The applicant
was in fact allowed to do so and he did provide an explanation;
e)
Both the remaining two members of the Tribunal also engaged the
applicant in
argument on the facts and the law;
f)
The chairman apologised for interrupting the applicant during his
argument,
but this only came after another member of the Tribunal
panel engaged the applicant extensively on a specific point. The
applicant
then proceeded to address the Tribunal seemingly
unperturbed by the prior interruption;
g)
The debate became somewhat heated when the applicant implied that the
chairman
was “
speaking for”
the Authority.
It is perhaps prudent to quote from the transcript:
“
CHAIRMAN:
Just-just – I just personally or let’s put it this way
the Prudential Authority says
it is just so unlikely that you would
have all these multiples in this short period of 2 700 being
banked.
APPLICANT:
Have they run a fuel station this Prudential Authority? Have they run
a fuel station?
CHAIRMAN:
Why didn’t – why was it that after May 2012…
[intervened]
APPLICANT:
Chair are you speaking for the Prudential Authority?
CHAIRMAN:
Listen Mr Mwale… [intervened]
APPLICANT:
No-no I’m asking.
CHAIRMAN:
I’m asking you a fair question on the facts before us.
APPLICANT:
What is your question?
CHAIRMAN:
And please don’t cheek me.
APPLICANT:
Don’t?
CHAIRMAN:
I don’t accept that.
APPLICANT:
Don’t what?
CHAIRMAN:
Don’t cheek me with your remarks.”
–
(emphasis
added);
h)
The applicant’s argument consists of some 57 pages of the
transcribed record;
i)
The Authority’s argument consists of some 16 pages of
transcribed
record. The members of the Tribunal engaged counsel
for the Authority on various legal and factual aspects of the matter;
j)
The applicant’s argument in reply consists of some 6 pages of
transcribed
record (before the transcript abruptly ends).
[77]
There is a formidable burden upon a litigant who alleges bias or its
apprehension. Both the person
who apprehends bias and the
apprehension itself must be reasonable. Mere apprehensiveness
or even a “
strongly
and honestly felt anxiety”
that a presiding officer will be biased, is insufficient. A mistake
on the facts on its own does not justify a reasonable apprehension
of
bias. A party alleging bias based on incorrect findings of fact
must establish partiality, failing which the question
of
unreasonableness does not arise. If a mistake on the facts is
shown, a reliance on reasonable apprehension of bias will
only be
successful if the error relates to a material fact and it is so
unreasonable that it is inexplicable, except on the grounds
of bias.
-
De
Lacy and Another v South African Post Office
(CCT 24/10)
[2011] ZACC 17
;
2011 (9) BCLR 905
(CC) (24 May 2011).
[41]
[78]
It must be borne in mind in my view that the Tribunal panel consisted
of three members.
It is evident from the transcript that the
remaining members also extensively engaged the applicant during
argument. No allegations
of bias are however made against the
other members of the Tribunal. The decision of the Tribunal was
unanimous.
[79]
Having considered the facts and the transcription placed before me, I
am not persuaded that the
applicant has shown that the Tribunal (or
the chairman for that matter) was biased. I do not believe that
the applicant’s
perception of bias, if it genuinely existed,
was reasonable.
[80]
It is evident from the questions posed to counsel for the Authority
during argument that the
chairman in fact expressed his doubts about
the prospects of the repayment administrator to establish the
identity of the “investors”
in this matter. It
appears to me that the applicant’s remedy lies elsewhere.
In
the result it is ordered:
1.
The application is dismissed;
2.
The applicant is ordered to pay the second respondent’s costs,
including
the costs of two counsel where so employed.
YVAN
COERTZEN
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Date
of hearing: 18 March 2021
Delivered:
24 May 2021
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and by uploading
the
judgment to the digital CaseLines system utilised in this division.
The date and time for hand-down is deemed to be at
10h00 on 24 May
2021.
Appearances:
For
the applicant:
MB Mhango
Attorneys for the
applicant:
Bazuka & Company
Inc.
Randburg
Counsel
for second respondent:
Adv EL Theron SC
Adv S Mathiba
Attorneys for the
second respondent:
Bowman Gilfillan
Inc.
Pretoria
[1]
Section
235 of the FSR Act provides:
‘
Any
party to proceedings on an application for reconsideration of a
decision who is dissatisfied with an order of the Tribunal
may
institute proceedings for a judicial review of the order in terms of
the Promotion of Administrative Justice Act or any applicable
law.’
[2]
In terms of the “RE-AMENDED NOTICE OF MOTION” dated 19
March 2021.
[3]
94 of 1990.
[4]
The Authority’s “Statement of Reasons” in terms of
s 229(2) of the FSR Act.
[5]
As defined in sec 218 of the FSR Act.
[6]
In terms of s 230 of the FSR Act.
[7]
Published on the website of The Financial Sector Conduct Authority:
www.fsca.co.za
[8]
Section 232(1)(c) of the FSR Act.
[9]
71 of 2008.
[10]
Available at:
www.fsca.co.za
[11]
Section 232(1)(b) of the FSR Act.
[12]
Section 232(2) of the FSR Act.
[13]
In this matter consisting of three members – (See s 224 of the
FSR Act).
[14]
Section 232(4) of the FSR Act.
[15]
In terms of s 229 of the FSR Act.
[16]
Affidavits are seemingly not required in a reconsideration
application.
[17]
There
is no replying affidavit by the applicant.
[18]
The
Tribunal was chaired by a former judge of the Supreme Court of
Appeal, Mr
Justice
LTC Harms. The reference to “chairman” is intentional.
By contrast the chairperson of the Tribunal is
defined in s 1 of the
FSR Act as ‘
the
person holding the office of the Chairperson of the Tribunal in
terms of section 220 (4), and includes a person acting as
the
Chairperson.’
[19]
Section 84(1A)(b)(i) of the Bank’s Act.
[20]
Since
1 April 2018 the Authority.
[21]
GN 498
published in the Government Gazette No. 17895 on 27 March 1997.
[22]
90 of
1989.
[23]
Section 12(2)
of the
South African Reserve Bank Act read
with GN No.
169 in Government Gazette 41549 of 29 March 2018.
[24]
In terms of s 230(1)(b) of the FSR Act.
[25]
At para 37.
[26]
Known
by different names such as ‘Travel Ventures International’,
‘
TVI
Express’ and ‘Travel Ventures Institution’
.
[27]
At paras 2 – 4.
[28]
MM3
to the founding affidavit.
[29]
MM3 to the founding affidavit.
[30]
MM1.
[31]
MM2.
[32]
Which
provides that no person shall conduct the business of a bank unless
such person is a public company and is registered as
a bank.
[33]
The complaint was apparently dismissed by the JSC.
[34]
According
to the Authority’s affidavit the Corporation is apparently in
the process of deregistration.
[35]
Case No. 3056/13 delivered on 25 June 2013.
[36]
At para 41.
[37]
At para 2.
[38]
Corpclo 2290 CC t/a
U-Care v Registrar of Banks
at
para 4.
[39]
At para 4.
[40]
Declared in terms of s 1(e) of the definition to be the business of
a bank.
[41]
At paras 69 - 72.