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[2016] ZAGPPHC 1230
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Risk and Another v Msimang NO and Others (50027/2014) [2016] ZAGPPHC 1230 (4 November 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG HIGH COURT
DIVISION, PRETORIA
Case
number: 50027/2014
Date:
04/11/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
RISK,
DEEB
RAYMOND
1
st
Applicant
D
RISK INSURANCE CONSULTANTS
CC
2
nd
Applicant
and
MR
HMS MSIMANG
N.O
1
st
Respondent
(in
his capacity as chair of an appeal board)
THE OMBUD FOR FINANCIAL
SERVICE PROVIDERS
2
nd
Respondent
BUJOK, JANET
ANNE
3
rd
Respondent
OLDACRE, LIONEL
WALTER
4
th
Respondent
OLDACRE,
CATHERINE
MARIE
5
th
Respondent
JUDGMENT
MNGQIBISA-THUSI,
J:
[1]
The relief sought by the applicants in the notice of motion is the
following:
1.1
that
the applicants be exempted in terms of section 7(2)(c) of the
promotion of Administrative Justice Act 3 of 2000 ("PAJA")
from the obligation, such as may be, to exhaust the process pending
before an appeal board that was constituted in terms of the
Financial
Services Board Act 97 of 1990 ("FSB Act") and is presided
over by the first respondent before reviewing the
first respondent's
administrative action, viz the decision referred to in the next
paragraph, and that it be declared that it is
in the interest of
justice to exempt the applicants as aforesaid.
1.2
That the first
respondent's decision that was conveyed to the applicants on 17 June
2014 dismissing the applicants' application
to submit further
evidence be reviewed and set aside.
1.3
That the first
respondent be directed to consider the said application on the merits
thereof.
1.4
That the first
respondent be directed to remit the matter to the Ombud for Financial
Services providers in the event that the said
application is granted.
1.5
That, in the
alternative to the previous paragraph, the first respondent be
directed to give reasons for his dismissal of the said
application.
1.6
That the first
respondent be ordered to pay the costs of this application.
[
2]
The first applicant is a registered financial services provider
("FSP") (operating through the second applicant) in
terms
of the Financial Advisory and Intermediary Service Act
[1]
("the FAIS Act").
Hereinafter the applicants will be referred to as 'the applicant'.
[3]
The first respondent is the Chairperson of the Appeal Board ("the
appeal board") created in terms of section 26(A)(1)
of the
Financial Services Board Act
[2]
("FSB
Act"). In terms of the FSB Act, the appeal board may:
(a) confirm, set aside or
vary the decision under appeal, and order that any such decision of
the appeal board be given effect to;
or
(b)
remit the matter
for reconsideration by the decision-maker concerned in
accordance wit
h
such directions, if any, as the appeal board may determine"
[3]
.
[4]
The second respondent is the Ombud for Financial Services
ProviderS
[4]
("the
Ombud") who is responsible,
inter
alia,
for
investigating and making determinations on complaints lodged against
FSPs by clients.
[5]
The third to fifth respondents, Ms Janet Anne Bujak; Mr Lionel Walter
Oldacre and Mrs Catherine Marie Oldacre ("the complainants")
are complainants who have lodged complaints with the Ombud against
the applicant regarding certain investment advice received from
the
applicant.
[6]
The Chair of the appeal board is not opposing this application. Even
though no relief is sought against the Ombud, the
Ombud is, however,
opposing the application. No relief is sought also against the
complainants.
[7]
Between September 2010 and March 2011, the complainants lodged
complaints with the Ombud against the applicant. The basis of
their
complaints was that on the advice of the applicant they had invested
monies in the Sharemax Scheme known as 'The Villa' and
'Zambezi'
Property Syndication Schemes, which scheme later failed. It was the
complainants' contention that the applicant did not
provide them with
fair, honest and appropriate advise having their best interests in
mind and that the advice given was not the
product of due skill, care
and diligence.
[8]
The Ombud invited the applicant to respond to the complaints
[5]
.
In response to the invitation, on 22 November 2010 the applicant
responded by making an application to the Ombud in terms
of section
27(3)(c)
[6]
of
the FAIS Act requesting the Ombud to decline determining the
complaints
[7]
and
rather to refer the matters for determination to the High Court in
view of alleged existing disputes of fact in order for oral
evidence
to be led. It was the applicant's view that the Ombud would not be in
a position to resolve the alleged existing disputes
of fact since she
applied equity and not the law.
[9]
It is common cause that when the Ombud deals with complaints
received, she does not hold formal hearings before making a
determination.
In terms of section 20(3)
[8]
read with section
20(4)
[9]
and
27(5)(a)
[10]
of
the FAIS Act the Ombud is vested with the power to decide on
complaints in a 'procedurally fair, informal, economical and
expeditious
manner' and may use any procedure she deems appropriate,
as long as she acts independently and impartially.
[10]
On 22 June 2011 the Ombud responded to the applicant's request and
informed him that he had not provided her with the necessary
documentary evidence showing that they have complied with the FAIS
Act and the General Code of Conduct for Authorised Financial
Services
Providers and Representatives ("the Code of Conduct"). As
appears from the Ombud's answering affidavit, compliance
would entail
the applicant providing her with a copy of the record of advice and a
copy of the risk profile and financial needs
analysis.
[11]
Further the Ombud advised the applicant that he had failed to
'properly advise the complainants of the risks involved in investing
in property syndication and without evidence of having conducted due
diligence on the properties involved'. The Ombud again invited
the
applicant to provide the necessary documentation.
[12]
On 30 June 2011 the applicant's attorneys wrote a letter to the Ombud
informing her that the applicant would not be responding
to her
letter of 2 June 2011 and reserved his right to respond to her letter
in contemplated legal proceedings.
[13]
Aggrieved by the Ombud's refusal to decline determining the dispute
and to refer it to court, the applicant launched review
proceedings
in terms of Rule 53 of the Uniform Rules of Court in the High Court
before Judge Baqwa.
[11]
The applicant alleged
that the Ombud's decision to decline referring the matter to court
violated his rights as contained in section
34 of the
Constitution
[12]
.
[14]
The main issues which the reviewing court had to determine was
whether the Ombud had properly exercised the discretion conferred
on
her by section 27(3)(c) of the FAIS Act.
[15]
Before the decision by Judge Baqwa was handed down, the Ombud made a
determination in favour of the complainants.
[16]
Judge Baqwa dismissed, with costs, the applicant's review
application. In dismissing the application, the court stated that:
"33.1 It is quite
clear from a reading of section 34 (supra) that the section does not
entitle the applicants to be sued in
a court. On the other hand the
section specifically makes provision for matters to be dealt with by
an independent tribunal or
forum such as the first respondent
(Ombud).
[17]
The court went further and concluded that the applicant should have
taken the Ombud's decision through the existing internal
appeal
process, which process allowed for further evidence to be presented.
In this regard the court relied on the decision in
Nichol
&
Another
v Registrar of Pension Funds
&
Others
[13]
where the Supreme Court
of Appeal stated that:
"[22] The appeal
board conducts an appeal in the fullest sense - it is not restricted
at all by the functionary's decision
and has the power to conduct a
complete rehearing, reconsideration and fresh determination of the
entire matter that was before
the functionary with or without new
evidence or information".
[18]
Judge Baqwa further held that by failing to appeal the Ombud's
determination, the applicant has not, contrary to the provisions
of
section 7(2) (c) of the Promotion of Administrative Justice Act
[14]
("PAJA"),
exhausted all available internal remedies before launching the review
proceedings; and has not shown any exceptional
circumstances
entitling them to be exempted from
exhausting
the available internal remedies and that it would be in the interest
of justice that exemption be granted
[15]
[19]
Furthermore, the reviewing court held that section 27(3)(c) does not
confer on the applicant any right to demand of the Ombud
to forgo her
powers to adjudicate on complaints lodged with her office in that she
is empowered to use any process she deems appropriate
in order to
resolve complaints in a fair and expeditious manner
[16]
.
[20]
The applicant did not appeal Judge Baqwa's judgment and order.
[21]
The applicant lodged an appeal with the appeal board in terms of
section 26(1)
[17]
of the FS8 Act read with
section 39
[18]
of the FAIS Act against
the determination made by the Ombud. Furthermore, the applicant
applied to the chair of the appeal board
in terms of section 268(12)
of the FS8 Act to augment the appeal record.
[22]
Section 268(12) reads as follows:
"(a) Despite the
provisions of subsection (11)
[19]
the chairperson of
a board designated to hear an appeal may on application by-
(i)
the appellant concerned, and on
good cause shown, allow further oral and written evidence or factual
information and documentation
not made available to the
decision-maker prior to the making of the decision against which the
appeal is lodged;
(ii) ...
(b) If further oral and
written evidence or factual information and documentation is allowed
into the record on appeal under paragraph
(a) (i), the matter must
revert to the decision-maker concerned for reconsideration and the
appeal is deferred pending the final
decision of the decision-maker.
(c) If after the
decision-maker concerned has made a final decision as contemplated in
paragraph (b), the appellant continues with
the appeal by giving
written notice to the secretary the record on appeal must include the
further oral evidence, properly transcribed
written evidence or
factual information and documentation allowed, and further reasons or
documentation submitted by the decision-maker
concerned".
[23]
In his application for further evidence to be presented, the
applicant averred that in making her determination the Ombud did
not
have the applicant's full response to the complaints lodged and if he
is not allowed to augment the appeal record, he would
be prejudiced
in that the appeal board, when determining the appeal, would only
have at its disposal the incomplete response which
served before the
Ombud when she made her determination. Further that the refusal to
allow further evidence to be presented on
appeal, would be
prejudicial to the applicant if one takes into account the amounts
claimed and the number of claims against him.
Furthermore, the
applicant alleged that the Ombud was biased against property
syndicates.
[24]
The Chair of the appeal board refused dismissed the application to
augment the appeal record. In refusing to allow the applicant
to
augment the appeal record, the Chair of the appeal board stated that:
"[13] In paragraph
4.4 of the grounds of appeal the Applicants state the following:-
'4.4 Given the
intemperate language used in both Ombud's determinations and her
rejection of the Application for leave to Appeal.
It is clear that
the Ombud is not independent and impartial, but that the Ombud is
partial to the Respondent'.
[14] If it is the
attitude of the Applicants that the Ombud is impartial and not
independent then it is inconceivable that the matter
should be
referred back to the Ombud for adjudication.
[15] In the
judgment granting leave to appeal and in the judgment of Baqwa J
reference was made to the matter of
Nichol and Another v Registrar
of Pension Funds and Others
2008 91) SA
383
(SCA)
where
the Court stated:
"[22]
The Appeal board conducts an appeal in the fullest sense-it is not
restricted at all by the functionary's decision and
has the power to
conduct a complete rehearing reconsideration and fresh determination
of the entire matter that was before the
functionary with or without
new evidence or information.
[16] It appears that the
Ombud conceded this fact in the matter before Baqwa J. The Appeal
Board is empowered in terms of the Act
to hear new evidence. I have
no doubt that the Appeal Board will consider the introduction of new
evidence in this matter should
it be necessary to do SO.
[17] This matter has been
outstanding for some time and the parties want to see it finalized.
It is not in the interest of the parties
that it must be permitted to
be delayed any longer. The issues raised in the Appeal are broad and
should serve before the Appeal
Board".
[25]
The Ombud's determination was, however, not executed after the
parties reached agreement that execution would be suspended
until the
finalisation of the current review proceedings. As a result of this
agreement this matter seized to be urgent.
[26]
On the issue of exemption from exhausting internal remedies, it was
argued on behalf of the applicant that the Ombud has misconstrued
her
functions in that she is under the impression that she only applies
equity and not the law hence her denial of the existence
of disputes
of facts and her refusal to decline determining the complaints. It is
the applicant's contention that in order for
the Ombud to find
liability, she also needs to deal with legal principles, for
instance, causation. Furthermore, it was argued
that despite the
provisions of Section 7(2) of PAJA, the need to exhaust internal
remedies was not absolute. The court could still
grant an exemption
in the interest of justice. In this regard counsel for the applicant
relied on
Koyabe
and Others v Minister for Home affairs and Others (Lawyers for Human
Rights as amicus curiae)
[20]
where the constitutional
Court stated that:
"What
constitutes exceptional circumstances depends on the facts and
circumstances of the case and the nature of the administrative
action
at issue. Thus, where an internal remedy would not be effective
and/or where its pursuit would be futile, a court may permit
a
litigant to approach the court directly. So too where an internal
appellate tribunal has developed a rigid policy which renders
exhaustion futile".
[27]
On behalf of the Ombud it was submitted that it was unnecessary for
the applicant to have launched this application. Instead
the
applicant should have allowed the appeal process to take its course
and if the decision is unfavourable to him, he could still
bring an
application for the review and setting aside of the appeal board's
decision. Furthermore, it was argued that in order
to be exempted
from exhausting internal remedies, one needs to show that exceptional
circumstances exist, which the applicant as
found by Judge Baqwa had
not done. It is the Ombud's contention that the application to be
exempted was incompetent in view of
the fact that Judge Baqwa had
already ruled on the issue and the applicant did not appeal his
judgment.
[28]
As correctly pointed out by counsel for the Ombud, I am of the view
that the application for an exemption is incompetent in
that the
issue is re judicata having been dealt with by Judge Baqwa in
dismissing it. The applicant did not appeal that judgment.
There is
no reason why the applicant did not furnish the Ombud with the
information she requested during the investigation of the
complaints.
Even if the Ombud would have found against him with the requested
information, it was still open to the applicant in
terms of the FSB
Act processes for them to take the Ombud's determination on appeal
before the appeal board and to apply for further
relevant evidence
which was not before the Ombud at the time she made a determination,
to be allowed. I am therefore satisfied
that the applicant has not
shown the existence of exceptional circumstances to justify being
exempted from exhausting the internal
remedies.
[29]
The main issue to be determined is whether the decision of the Chair
of the appeal board should be reviewed and set aside.
[30]
It was it was submitted on behalf of the applicant that he was not
given the opportunity to place all relevant information
before the
Ombud made her determination. It is applicant's contention that there
are factual disputes which could be resolved by
evidence. It is
further the applicant's contention that, in view of the dismissal by
the Chair of the appeal board of his application
for further evidence
to be presented, the appeal board would in effect determine the
appeal based on the incomplete response provided
by the applicant to
the Ombud. As a result, the pursuit of the appeal has been rendered
nugatory in that the appeal process is
not a rehearing of the matter.
In this regard the applicant relies on what was said in the appeal
board judgment in
Sharemax
(Pty) Ltd and Others v
Siegrist and Bekker.
[21]
In reference to the
Nichol
matter
(supra),
Judge
Harms stated that:
"The Act was amended
since this judgment by the introduction of sec 268. An appeal to the
Board is no longer 'an appeal in
the fullest sense' since it has to
be decided on the written evidence, factual information and
documentation which had been submitted
to the decision-maker in
connection with the matter, which is the subject of the appeal
(sub-sec (10)). Furthermore, the powers
on appeal are circumscribed
by sub-sec (15): The appeal board may only (a) confirm, set aside or
vary the decision under appeal,
and order that any such decision of
the appeal board be given effect to; or (b) remit the matter for
reconsideration by the decision-maker
concerned in accordance with
such directions, if any, as the appeal board may determine".
[31]
It was further submitted on behalf of the applicant that the Chair of
the appeal board has committed a gross irregularity in
that in coming
to the decision to dismiss the application for further evidence, the
Chair failed to fulfil his obligations. It
is contended that the
Chair misconstrued his functions by taking into account irrelevant
considerations, namely, that it was inconceivable
to allow further
evidence to be presented which would necessitate the matter being
remitted to the Ombud who was perceived to be
biased by the
applicant
[22]
.
It was further submitted that the reason given by the Chair for
denying the further evidence was not rationally connected
to the
purpose for which it was taken. Furthermore it was submitted that the
Chair's decision was irrational in that it was not
one which a
reasonable decision maker could take with the evidence before
him
[23]
. It was argued that
given by Chair of the appeal board's irrational decision, the refusal
to allow the applicant to augment the
appeal record was therefore not
reasonable and in breach of the first applicant's rights to
procedurally fair and lawful administrative
action under section
33(1) of the Constitution and was a violation of the applicant's
right under section 34 of the Constitution.
[32]
On behalf of the Ombud it was argued, based on the
Nichol
judgment
( supra),
that the appeal hearing was a complete rehearing of
the matter and the applicant would have been given an opportunity to
introduce
further evidence which would have been taken into account
when a decision was made.
[33]
It was submitted on behalf of the Ombud that the application was
unnecessary in that at the hearing of the appeal, it was still
open
for the applicant to present evidence which was not before the Ombud
as the appeal process in terms of the FSB Act has correctly
been
described in both the
Nicholl
judgment
and in Judge Baqwa's judgment as being an appeal in the wide sense.
It was submitted that nothing stops the appeal board
from
entertaining further evidence if it was necessary to do so. Further
it was the contention of the Ombud that it was premature
for the
applicant to have applied to the Chair of the appeal board for
further evidence to be heard as the appropriate stage for
such
application was when the appeal hearing has commenced. It was further
argued that the applicant had not suffered any prejudice
as the board
could still allow for further evidence.
[34]
The Ombud's view that the appeal board can hear further evidence in
terms of sections 268 (12) and 268 (13) is not entirely
correct. The
prerequisite for the appeal board to hear further evidence is that
the Chair has to have granted leave to the applicant
to present such
further evidence. From the wording of the two subsections it is clear
that the discretion whether or not to allow
for further evidence lies
with the Chair. The Chair and not the appeal board has to make a
decision whether further evidence is
allowed or not. In this matter,
the Chair has dismissed the application for further evidence. The
effect of such a decision
is that in accordance with section 268
(10)
[24]
read
with section
268
(11) of the FSB Act the appeal board will only deal with what was
before the Ombud.
[35]
The reasons given by the Chairman do not appear to relate to the
decision made. As a result an inference of illegality can
be drawn.
The reasons arebased on a wrong premise that because the applicant
perceives the Ombud to be biased, the peremptory provisions
of
section 268(12) that in the event that further evidence is allowed,
the matter should be referred back to the Ombud for reconsideration,
need not be complied with. As correctly pointed out by counsel for
the applicant, the applicant's perception of biasness on the
part of
the Ombud is an irrelevant consideration in determining whether or
not further evidence should be allowed. The necessary
question in an
application for further evidence to be allowed is whether the
applicant has shown good cause for the evidence to
be allowed. The
chair of the appeal board has not made a finding that the applicant
has not shown good cause as required by section
268(12) in order for
further evidence to be allowed. What the Chair of the appeal board's
decision seems to convey is that there
is no need for an application
for further evidence to be adduced since the appeal board would if
necessary hear further evidence.
However, in terms of section
268(12)(b) read with section 268(15) of the FS8 Act the Ombud is
vested with the power to reconsider
an application and when her
decision is appealed, the appeal board has to either confirm, set
aside, vary or remit the matter for
reconsideration by the
decision-maker
[25]
.
Furthermore, in his judgment, the Chair of the board of appeal does
not even allude to the submissions made on behalf of the applicant
about the relevance of the further evidence sought to be adduced, to
show that they were considered.
[36]
In
Herholdt
v Nedbank Ltd
[26]
the Supreme Court of
Appeal clarified the test in
Sidumo
[27]
as follows:
"[25] For a defect
in the conduct of the proceedings to amount to a gross irregularity
as contemplated by section 145(2) (a)
(ii), the arbitrator must have
misconceived the nature of the inquiry or arrived at an unreasonable
result. A result will only
be unreasonable if it is one a reasonable
arbitrator could not reach on all the material before the arbitrator.
Material errors
of fact, as well as the weight and relevance to be
attached to particular facts, are not in and of themselves sufficient
for an
award to be set aside, but are only of any
consequence if their effect is to render the outcome unreasonable."
[37]
I am therefore of the view that the reasons given by the Chair for
dismissing the application are not rational in that they
are not
consonant with the purpose they were meant to achieve. In
Pharmaceutical
Manufacturers Association of South Africa and Another: In re Ex parte
President of the Republic of South Africa and
Others
[28]
the court held that:
"[85] It is a
requirement of the rule of law that the exercise of public power by
the Executive and other functionaries should
not be arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect
arbitrary and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public
power by the Executive
and other functionaries must, at least comply with this requirement.
If it does not, it falls short of the
standards demanded by our
Constitution for such action.
[86] The question whether
a decision is rationally related to the purpose for which the power
was given calls for an objective enquiry.
Otherwise a decision that,
viewed objectively, is in fact irrational, might pass muster simply
because the person who took it mistakenly
and in good faith believed
it to be rational. Such a conclusion would place form above substance
and undermine an important constitutional
principle."
[38]
I am also of the view that in his response to the applicant's
attorney request for reasons for the dismissal of the application,
the Chair of the board of appeal in reality gave no reasons, the
effect of which is that the decision was taken for the wrong
reasons
[29]
.
[39]
Where there is an irregularity in quasi-judicial proceedings, a court
will normally not interfere with the decision of the
tribunal unless
it is convinced that the complaining party will be prejudiced. I
am
[30]
of
the view that the failure by the Chair of the appeal board to provide
reasons for not allowing further evidence in the appeal,
is
prejudicial to the applicant since the appeal will be decided without
such evidence.
[40]
In its notice of motion the applicant sought costs in the event of
opposition. However, during the hearing counsel for the
applicant
submitted that the applicant would not be seeking a costs order.
[41]
Accordingly the following order is made:
1.
The
application to be exempted from exhausting internal remedies is
dismissed.
2.
The decision by the
first respondent dated 17 June 2014 is reviewed and set aside.
3.
The matter is remitted
to the first respondent for reconsideration.
4.
In the event that the
application on reconsideration is dismissed, the first respondent is
directed to provide reasons for the decision.
5.
Each party to pay its
own costs.
____________________
NP MNGQIBISA-THUSI
Judge
of the High Court
Appearances:
For
the Applicants: Adv Lauw SC Instructed by: Bieldermans Inc
For
the Second Respondent: Adv V Ngalwane SC Instructed by: Ramushu
Mashile Twala Inc
[1]
Act 37 of 2002
[2]
Act 97 of 1990
[3]
Section 268(15)
of the FSB Act
[4]
Appointed
in terms of
section
21(
1) of the
FAIS Act
[5]
In terms of
S27(4)(c) of the FAIS Act provides that on receipt of a complaint,
the Ombud must not
proceed
to investigate a complaint officially received before providing all
interested parties the
opportunity
to submit a response to the complainant.
[6]
Section
27(3)(c)
of
the
FAIS Act
provides
that:
"The
Ombud
may
on
reasonable
grounds
determine that
it
is
more
appropriate
that
the
complaint
be
dealt
with
by
a
Court
or
through any
other
available dispute
resolution
process,
and
decline
to
entertain
the
complaint".
[7]
[8]
Section
20(3)
provides
that:
"The
objective
of
the
Ombud
is to
consider
and
dispose
of
complaints
in a
procedurally
fair, informal,
economical
and
expeditious
manner
and
by
reference
to
what is equitable
in
all
the
circumstances,
with
due
regard
to-
(a)
the
contractual
arrangement or
other
legal arrangement
between
the
complainant
and
any
other
party
to
the
complainant; and
(b)
the
provisions of
this Act".
[9]
Section
20(4)
reads as follows
"When
dealing
with
complaints
in terms
of sections
27 and 28
the Ombud is
independent and must be impartial".
[10]
Section 27(5)
provides that: "The Ombud may, in investigating or determining
an officially received
complaint,
follow and implement any procedure (including mediation) which the
Ombud deems
appropriate,
and may allow any party the right to legal representation"
[11]
Under
case
number
38791/2011.
[12]
Section
34
of the
Constitution
provides that:
"Everyone
has the
right to
have any
dispute
that
can
be resolved
by the
application
of
law decided
in a fair
public
hearing
before a
court or,
where
appropriate.
another independent
and
impartial
tribunal
or
forum"
[13]
2008 (1) SA 383
(SCA).
[14]
Act 3 of 2000
which provides in section 7(2) that a court cannot entertain a
review of an
administrative
action unless the applicant has exhausted all available internal
remedied.
[15]
Nichol (supra)
at [15}
and
City of
Cape Town v Reader
2009
(1) SA 555 (SCA).
[16]
Paragraphs 38-39
of the judgment
[17]
Section
26(1)
of
the FSB
Act reads as
follows:
"A
person
who is
aggrieved by
a
decision of
a
decision-maker
may, subject to
the provisions of another
law,
appeal against that decision to the appeal
board
in accordance
with
the
provisions
of
this
Act
or
such
other
law".
[18]
Section
39
of
the
FAIS
Act
provides
that:
"Any
person
who
feels
aggrieved
by
any
decision
by
the registrar
or
the
Ombud
under
this
Act
which affects
that
person, may
appeal
to
the
board
of
appeal
established
by
section
26(1)
of
the
Financial
Services
Board
Act, in
respect
of
which
appeal
the
said section
26
applies
with
the
necessary
changes".
[19]
Section
268(11)
of
the
FSB Act
provides
that: "
Subject
to
the
provisions
of
subsection
(12)
no oral or
written
evidence
or
factual
information
and
documentation,
other
than
what
was
made
available
to the
decision-maker,
may
be
submitted
to
the
board
by a
party to
the
appeal"
[20]
2010
(4)
SA
327
(CC)
at [39].
[21]
Consolidated
cases
FAIS
00039/11-12/GP1
and
FAIS 06661/10-11/WC1
handed
down on
10
April
2015
at [25].
[22]
Section
6(2)(c)(iii) of PAJA.
[23]
Section
6(2)(f)(ii)(cc) of the PAJA
[24]
Section 268 (10)
of the FSB Act provides that: "An appeal is decided on the
evidence
submitted
to the decision-maker
before
the decision which is the subject of the appeal was taken
"
[25]
Potgieter v
Howie NO and Others
2014
(3) SA 336 (GP)
[26]
[2013] 1 BLLR
1074
(SCA) at
para 25.
[27]
Sidumo and
Another
v
Rustenburg Platinum Mines Ltd and Others
2008
(2) SA 24 (CC): [2007] 12 BLLR 1097 (CC)
[28]
2000 (2) SA 67
4
(CC)
[2000] ZACC 1
; ;
2000 (3) BCLR 241
at paras [85] and [86].
[29]
Section 5(3) of
PAJA provides that: "If an administrator fails to furnish
adequate reasons for an
administrative
action, it must, subject to subsection (4) and in the absence of
proof to the contrary, be presumed in any proceedings
for judicial
review that the administrative action was taken without good
reason".
[30]
Rajah
&
Rajah
(Pty) Ltd
&
Others v
Ventersdorp Municipality
&
Others
1961
(4) SA 402
at 407- 408.