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[2011] ZAFSHC 65
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Odendaal v Absa Brokers (Pty) Ltd and Another (A112/2009) [2011] ZAFSHC 65 (24 March 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: A112/2009
In the matter between:-
NICOLAAS ODENDAAL
….......................................................
Applicant
and
ABSA BROKERS (PTY)
LTD
…...................................
First
Respondent
FINANCIAL SERVICES
BOARD
….........................
Second
Respondent
_____________________________________________________
CORAM:
VAN
DER MERWE, J
et
LEKALE, AJ
_____________________________________________________
HEARD ON:
21 FEBRUARY 2011
_____________________________________________________
JUDGMENT BY:
VAN DER MERWE, J
_____________________________________________________
DELIVERED ON:
24 MARCH 2011
_____________________________________________________
INTRODUCTION
[1] This is an
application to review and set aside a decision of the first
respondent to debar the applicant in terms of section
14(1) of the
Financial Advisory and Intermediary Services Act, No. 37 of 2002
(“the Act”).
LEGISLATION
APPLICABLE
[2] The main aim of the
Act is to regulate the rendering to clients of financial advisory and
intermediary services as defined therein.
The definition of “person”
includes any natural person, partnership, trust, company or other
corporate body. In terms
of the Act a financial services provider
means any person, other than a representative, who as a regular
feature of the business
of such person furnishes advice and/or
renders any intermediary service and “financial service”
has a corresponding
meaning. An authorised financial services
provider is a person who has been granted an authorisation as a
financial services provider
by the issue of a licence under section
8. The definition of “intermediary service” includes the
acts normally performed
by a broker in respect of short-term
insurance. A representative in terms of the Act is essentially a
person who renders a financial
service to a client for and on behalf
of a financial services provider in terms of conditions of employment
or any other mandate.
A key individual includes any natural person
responsible for managing or overseeing the activities of a corporate
body relating
to the rendering of any financial service. The
executive officer of the Financial Services Board established in
terms of the Financial
Services Board Act, No. 97 of 1990, is the
registrar of financial services providers in terms of the Act. In
terms of section 17
authorised financial services providers must
appoint at least one compliance officer to monitor compliance with
the Act by the
provider and its representatives and to liaise with
the registrar.
[3] In terms of section 7
no person may act or offer to act as a financial services provider
unless such person has been issued
with a licence under section 8.
Section 8(1) provides as follows:
“
8
Application for authorisation
An application for an authorisation
referred to in section 7(1), including an application by an
applicant not domiciled in the
Republic, must be submitted to the
registrar in the form and manner determined by the registrar by
notice in the
Gazette
, and be accompanied by information to
satisfy the registrar that the applicant complies with the
requirements for fit and proper
financial services providers or
categories of providers, determined by the registrar by notice in
the
Gazette
, after consultation with the Advisory Committee,
in respect of-
personal character qualities of
honesty and integrity;
the competence and operational
ability of the applicant to fulfil the responsibilities imposed by
this Act; and
the applicant’s financial
soundness:
Provided that where the applicant is a
partnership, a trust or a corporate or unincorporated body, the
applicant must, in addition,
so satisfy the registrar that any key
individual in respect of the applicant complies with the said
requirements in respect of-
personal character qualities of
honesty and integrity; and
competence and operational ability,
to the extent required in order for
such key individual to fulfil the responsibilities imposed on the key
individual by this Act.”
[4] The requirements for
fit and proper financial services providers or categories of
providers determined by the registrar after
consultation with the
Advisory Committee, were published in Board Notice 91 of 2006 in both
Government Gazette No. 25446 of 10
September 2003 and Government
Gazette No. 29132 of 16 August 2006. Part II deals with personal
character qualities of honesty and
integrity. Regulation 2(1) simply
provides that an applicant must be a person who is honest and has
integrity. Regulation 2(3)
sets out factors that constitute
prima
facie
evidence that the applicant does not
qualify in terms of sub-paragraph (1), without prejudice to the
generality of the other sub-paragraphs.
For example, these factors
include that the applicant has within a period of five years
preceding the date of the application been
found guilty by any
professional or financial services industry body recognised by the
Board or denied membership of such body
or had any licence granted to
the applicant by such body suspended or withdrawn, on account of an
act of dishonesty, negligence,
incompetence or mismanagement,
sufficiently serious to impugn the honesty and integrity of the
applicant.
[5] Section 13(2)(a)
provides that an authorised financial services provider must at all
times be satisfied that its representatives,
and the key individuals
of such representatives are, when rendering a financial service on
behalf of the provider, competent to
act, and comply with the
requirements contemplated in paragraphs (a) and (b) of section 8(1)
and subsection (1)(b)(ii) thereof,
where applicable. In terms of
sections 13(3) and 13(4) an authorised financial services provider
must maintain a register of representatives,
and key individuals of
such representatives, which must be regularly updated and be
available to the registrar for reference or
inspection purposes. Such
register must contain every representative’s or key
individual’s name and business address
and state whether the
representative acts for the provider as employee or as mandatory and
must specify the categories in which
such representatives are
competent to render financial services.
[6] Section 14(1)
provides as follows:
“
14
Debarment of representatives
(1) An authorised financial services
provider must ensure that any representative of the provider who no
longer complies with the
requirements referred to in section 13(2)
(
a
) or has contravened or failed to comply with any provision
of this Act in a material manner, is prohibited by such provider from
rendering any new financial service by withdrawing any authority to
act on behalf of the provider, and that the representative’s
name, and the names of the key individuals of the representative, are
removed from the register referred to in section 13(3): Provided
that
any such provider must immediately take steps to ensure that the
debarment does not prejudice the interest of clients of the
representative, and that any unconcluded business of the
representative is properly concluded.”
[7]
Section 14(3) provides that an authorised financial services provider
must within a period of fifteen days after the removal
of the name of
a representative from the register as contemplated in subsection
14(1), inform the registrar in writing thereof
and provide the
registrar with the reasons for the debarment in such format as the
registrar may require. The registrar may then
make known any such
debarment and the reasons therefor by notice in the Gazette or by
means of any other appropriate public media.
[8]
The meaning of all this for purposes of this case is that if it is
established by an authorised financial services provider
that its
representative has committed an act of dishonesty sufficiently
serious to impugn the honesty and integrity of the representative,
the authorised financial services provider must ensure that the
representative is debarred in terms of section 14(1) and that the
registrar is notified thereof.
BACKGROUND
[9]
The first respondent is an authorised financial services provider.
The second respondent is the Financial Services Board referred
to
above. No relief is claimed against the second respondent and the
second respondent took no part in these proceedings.
[10]
For a number of years prior to 1 July 2007, the applicant acted as
representative and apparently as key individual of a close
corporation that provided financial services. The applicant mainly
acted as a broker in respect of short-term crop insurance in
the
Bethlehem area. In the process he built up a sizeable portfolio of
clients. This portfolio of clients as it existed on 1 July
2007 was
referred to in the papers as “the applicant’s existing
book” and for convenience I will do the same.
[11]
During 2007 the applicant and the first respondent, represented by
its Free State Regional Manager, Mr. Chris Liebenberg, entered
into
negotiations with a view of the applicant entering into the
employment of the first respondent and the first respondent taking
over the applicant’s existing book. As a result the applicant
and the first respondent entered into a written employment
agreement
in terms of which the applicant was employed by the first respondent
with effect from 1 July 2007. In terms of this agreement
the
applicant would be remunerated in terms of the so-called Agri Model.
This entailed that the applicant would be paid a salary
of R25 000,00
per month and that if the applicant’s annual target in respect
of commission on insurance premiums, namely
the applicant’s
costs to company plus 50% thereof, is exceeded, a bonus of 50% of the
exceeded amount would be paid to the
applicant at the end of the
relevant financial year. Whether the parties also reached agreement
in respect of the applicant’s
existing book, remains in
dispute. The first respondent says that in terms of an oral
agreement, the applicant’s existing
book was purchased and
transferred to the first respondent and that the agreed consideration
therefor was payment to the applicant
of 100% of the commission
earned by the first respondent on what was the applicant’s
existing book, for a period of 18 months.
In terms of the first
respondent’s case therefore, commission on these insurance
agreements earned by the first respondent
would be shared with the
applicant only after expiry of a period of 18 months after 1 July
2007, on the Agri Model, set out above,
or any other commission
regime then agreed upon. The applicant admits that negotiations in
respect of his existing book took place
in the terms referred to by
the first respondent, but denies that an agreement was reached or
entered into. It is common cause
however that the insurance contracts
that formed part of the applicant’s existing book were
transferred to the first respondent
and that the first respondent
paid 100% of the commission earned thereon to the applicant until his
resignation.
[12]
During 2008 the relationship between the parties soured. On 4
November 2008 the applicant gave written notice to the first
respondent of his resignation with effect from the end of November
2008. By that time the applicant had already applied for a close
corporation by the name of Nico Odendaal CC to be licensed as an
authorised financial services provider with himself as key
individual.
[13]
On 20 November 2008 the applicant received a notice entitled
“INTERNAL ENQUIRY FOR THE PURPOSES OF COMPLYING WITH THE
FAIS
ACT AND TO CONSIDER REDS LISTING”. The FAIS Act refers to the
Act and the REDS listing refers to a confidential list
circulated
amongst the major financial services providers in the RSA and which
is compiled from information supplied by the major
role players in
the financial service sector. This list contains details of
individuals who have made themselves guilty of dishonesty.
In terms
of this notice the applicant was invited to attend an enquiry into
two sets of allegations set out in an annexure to the
notice. At the
enquiry these sets of allegations were referred to as charges. In
terms of the notice the applicant was also informed
that should he be
found to have engaged in conduct which renders him not fit and proper
as defined in the Act and/or to have engaged
in conduct which
contains an element of dishonesty, it will result in him being
debarred in terms of the Act and/or his name being
listed on the REDS
list.
[14]
The enquiry took place on 27 November 2008 in Bethlehem. The enquiry
was chaired by Mr. G.J. Koen, employed as legal adviser
by Absa
Financial Services Ltd. Mr. Chris Liebenberg represented the first
respondent. The applicant requested that he be represented
by a legal
representative, but this was refused by Mr. Koen. Mr. Koen explained
the purpose of the enquiry, particularly that it
was a fact finding
enquiry for purposes of complying with the Act and to consider a
possible REDS listing of the applicant and
not a disciplinary
hearing. The procedure was also explained in some detail. Mr.
Liebenberg handed in a so-called “charge
sheet” to which
a third set of allegations or charge was added. The applicant was
given the opportunity to peruse these new
allegations and the matter
proceeded when the applicant indicated that he was ready to do so.
The essence of these charges were
that the applicant acted
dishonestly by whilst in the employ of the first respondent, applying
for a financial services provider
licence for Nico Odendaal CC as
aforesaid and by whilst knowing that the first respondent had
purchased the applicant’s existing
book, removing the files
pertaining to the clients that belonged to the applicant’s
existing book from the possession of
the first respondent and by
instructing the insurance company, Santam, to transfer these clients
to his new brokerage. The applicant
was required to plead to these
charges and pleaded not guilty thereto.
[15]
Mr. Liebenberg then presented the case for the first respondent by
way of his own evidence and by submitting documentary proof.
He was
cross-examined by the applicant. The applicant then presented his
evidence and he was also cross-examined by Mr. Liebenberg.
Finally,
both Mr. Liebenberg and the applicant presented closing arguments.
Mr. Koen then adjourned the enquiry in order to consider
the matter
on the basis that the parties would be notified of the outcome.
[16]
Mr. Koen considered the evidence and arguments and came to the
conclusion that the applicant was guilty of dishonest conduct
as
alleged. He therefore concluded that the applicant was no longer fit
and proper as contemplated in section 8(1) of the Act and
took the
decision that the applicant be debarred as contemplated in section
14(1) of the Act and that his name be placed on the
REDS list. Mr.
Koen liaised with the first respondent’s compliance officer in
terms of the Act, Mr. Emile Scholtz, whereafter
the first respondent
notified the applicant of the outcome of the enquiry by letter dated
3 December 2008 and signed by Mr. Koen
on behalf of the first
respondent. The material contents of the letter are the following:
“
2.
We confirm the enquiry was held on 27 November 2008 which you
attended and that you were given an opportunity to make
representations
during the enquiry. We hereby wish to notify you that
after consideration of all representations made, the independent
internal
chairperson found you guilty of engaging in conduct which
contains an element of dishonesty whilst you were in the employ of
Absa
Brokers (Pty) Ltd.
3. As confirmed
in the notice to attend the enquiry, a finding of guilt in relation
to the allegations will result in your name
being listed on REDS and
you being debarred in terms of the FAIS Act. Accordingly, we advise
that your name will be listed on REDS
and that you will be debarred
in terms of the FAIS Act.
4. We also
confirm that a decision was made by the said decision maker that the
Broker Book was indeed sold to Absa Brokers, for
which a
consideration was paid on a monthly basis on the agreed terms and
conditions.”
[17]
Mr. Scholtz directed a letter dated 11 December 2008 to the
registrar. In the letter the registrar is requested to kindly note
that the applicant “... is herewith debarred”. The letter
also purports to provide the registrar with the reasons for
the
debarment.
THE
DECISION
[18]
In the notice of motion the applicant asks for an order reviewing and
setting aside the decision made by the first respondent
on 11
December 2008 in terms of which it debarred the applicant as a
representative in accordance with the provisions of section
14 of the
Act. In terms of the well-known rules in respect of adjudication of
applications, the application has to be decided on
the factual
version put forward by the first respondent. On this evidence the
decision to debar was taken after the conclusion
of the enquiry on 27
November 2008 and the applicant was notified thereof by the letter of
3 December 2008. In context the letter
of 11 December 2008, despite
the quoted wording thereof, constitutes notification of the debarment
to the registrar by the first
respondent as required in terms of
section 14(3) of the Act. This letter was not directed or sent to the
applicant. A representative
cannot be debarred by a letter to the
registrar. Debarment takes place by the authorised financial services
provider, here the
first respondent, by withdrawing any authority to
the representative to act on behalf of the provider and by removal of
the representative’s
name from the register that is kept by the
authorised financial services provider in terms of section 13(3) of
the Act. In my judgement
therefore the decision to debar the
applicant was not taken by Mr. Scholtz or in terms of the letter
dated 11 December 2008, but
by Mr. Koen on behalf of the respondent,
of which the applicant was notified by the letter of 3 December 2008.
However it would
in my judgment not be in the interest of justice to
dismiss the application simply on this basis. Counsel for the first
respondent
fairly conceded that the first respondent would not in any
way be prejudiced if the application is determined on the basis of
review
of the decision of Mr. Koen on behalf of the first respondent
already mentioned. I therefore proceed to determine the application
on this basis.
[19]
At the hearing before us counsel were agreed that this decision
constitutes administrative action as defined in the Promotion
of
Administrative Act, No. 3 of 2000, (“PAJA”). I believe
that counsel are correct. The decision in question is a decision
taken by a natural or juristic person other than an organ of state in
exercising a public power or performing a public function
in terms of
an empowering provision, adversely affects the rights of the
applicant and has a direct, external legal effect. I agree
with
counsel for the applicant that in terms of the Act authorised
financial services providers such as the first respondent were
woven
into the statutory framework which performs the public function in
terms of the Act to regulate the rendering of financial
services.
[20]
In the founding affidavit the applicant mentioned virtually all the
grounds for review contained in section 6(2) of PAJA. In
my judgment
however, only two grounds for review warrant consideration. The first
is whether the decision was arrived at as the
result of an unfair
procedure, because the applicant was denied legal representation at
the enquiry. The second is whether the
decision was rationally
connected to information before the decision-maker or one that a
reasonable person could make in the circumstances.
UNFAIR
PROCEDURE: DENIAL OF LEGAL REPRESENTATION?
[21]
At the commencement of the enquiry the applicant requested to be
represented by a legal representative. This was opposed by
Mr.
Liebenberg on behalf of the first respondent with reference to the
disciplinary code of the first respondent which provides
that at a
disciplinary hearing an employee is entitled to be represented by a
fellow employee or trade union representative and
by adding that the
nature of the enquiry did not differ significantly from that of a
disciplinary hearing. This provision does
not exclude legal
representation, which was understood by Mr. Koen. Mr. Koen concluded
that the applicant did not advance any reason
why he should be
permitted legal representation and refused the request.
[22]
Section 3(3)(a) of PAJA provides that in order to give effect to the
right to procedurally fair administrative action, an administrator
may, in his or her discretion, give a person whose rights or
legitimate expectations may be materially and adversely affected by
administrative action, an opportunity to obtain assistance and, in
serious or complex cases, legal representation. This position
is
materially in accordance with the common law. See
HAMATA
AND ANOTHER v CHAIRPERSON, PENINSULA TECHNIKON INTERNAL DISCIPLINARY
COMMITTEE, AND OTHERS
2002 (5) SA 449
(SCA), in particular at
paras [5] and [23]. In my view a complex case is one that involves a
complex procedure or issue. A serious
case is one that has the
potential of a grave consequence. The question is whether there are
any grounds for interfering with the
exercise of the discretion not
to allow representation at the enquiry. The first difficulty, in my
view in itself fatal for the
applicant, is that no reliance was
placed in the founding affidavit on the denial of legal
representation as a ground for review.
I am in any event not
convinced that the enquiry constituted a serious or complex case. The
applicant did not attempt to convince
Mr. Koen that it did, nor was
such attempt made in the founding affidavit. The procedure and
questions to be determined at the
enquiry were relatively simple and
uncomplicated. This is borne out by the fact that the applicant was
able to put forward his
case in a coherent and understandable manner.
I also do not think that grave consequences were involved. At the
time of the enquiry
the applicant had already resigned from his
employment with the first respondent. The only real consequences of
debarment for the
applicant therefore was notification thereof to the
registrar in terms of section 14(3)(a) or possibly publication
thereof by the
registrar in terms of section 14(3)(b). I am not
persuaded that the absence of legal representation as such resulted
in an unfair
procedure.
IRRATIONAL OR
UNREASONABLE DECISION?
[23]
It was common cause at the enquiry that whilst the applicant was
still in the employ of the first respondent, he did what was
alleged.
He admitted that he applied for a financial services provider licence
for the close corporation, that he instructed Santam
to transfer the
clients that had belonged to his existing book to this close
corporation and that he removed the files pertaining
to these clients
from his office and therefore from the possession of the first
respondent. He essentially said that he made the
application for the
licence after he had decided to resign and because it takes some time
to have such an application approved.
He said that he gave the
instruction for transfer of the clients and removed the files,
because an agreement for the purchase of
his existing book was never
entered into and that he was entitled to do so. Mr. Koen appears to
have found that in itself there
was nothing wrong with applying for
the licence in these circumstances. Mr. Koen, however, found that the
applicant knew that he
had transferred his existing book to the first
respondent because the first respondent had purchased it. In the
result Mr. Koen
found that the applicant had committed acts of
dishonesty as a result of which he no longer complied with the
requirements in respect
of personal character qualities of honesty
and integrity.
[24]
There can be little doubt that if the applicant had made over his
existing book to the first respondent because the first respondent
had purchased it, he acted dishonestly. He could then have no
reasonable belief that he was entitled to take the files in question
and to have the clients transferred. The main attack of the applicant
therefore was directed at the finding that an agreement was
entered
into in terms of which the first respondent had purchased the
applicant’s existing book. It is as well to be reminded
at this
point that this is a review and not an appeal. The question is not
whether the decision-maker erred on the facts but whether
any review
ground relied upon by the applicant is established. For this purpose
the information presented at the enquiry must be
considered.
[25]
I consider the following evidentiary material that was before the
decision-maker, to be dispositive of the matter:
(i)
An important background fact is that it was not possible for the
applicant to join the first respondent as its employee and
to retain
his existing book independently from the first respondent. (The
policy of the first respondent in respect of consideration
for taking
over the existing book of a broker employed, was to allow the
broker/employee to receive 70% of the commission on the
existing book
for a period of 12 months. As a result permission was asked for, and
obtained on 24 May 2007, to make the offer to
the applicant that
resulted in the agreement relied upon by the first respondent.)
(ii)
The applicant was aware hereof. At the enquiry the applicant said
that during his negotiations with Mr. Liebenberg, he proposed
that he
keeps his existing book independent from the first respondent, but
that Mr. Liebenberg said that that was not permissible.
(“Ek stel
voor dat ek my boek buite Absa kan hou. Hy sê nie
toelaatbaar.”)
(iii)
By reason thereof that the applicant was employed by the first
respondent on the basis of the Agri Model, the first respondent
had
to assign a broker code to the applicant. The first respondent says
that because it had purchased the applicant’s existing
book for
the consideration of payment of 100% of commission earned by the
first respondent on the insurance contracts that formed
part of the
existing book for a period of 18 months, the applicant had to be
assigned a second broker code for this period of 18
months. Ms
Annetjie O’Reily was responsible for the creation of the
policy-related information on the first respondent’s
computer
database in respect of the policies that formed part of the
applicant’s existing book. The following admitted e-mails
must
be viewed in this light.
(iv)
On 25 July 2007 Mr. Chris Liebenberg sent the following e-mail
inter
alia
to Ms O’Reily and to the applicant:
“
1.)
Kan ons asb reel vir nog ‘n ‘broker code’ vir Nico
aangesien hy sy bestaande boek, waarvoor ons hom betaal
soos
ooreengekom per kontrak, daarop kan laai sodat ons kan rekord hou.
Nico, kan jy
jou laaste kommissie staat aan my stuur sodat ons kan rekord hou
asb. Stuur ook volgende maand ens. sin vir my
asb.
Nico, ons kan
jou hele boek net so oorswaai op die manier, jy hoef dus nie elke
klient se getekende aanstelling te kry nie,
maar benodig ek
geskrewe toestemming van jou dat jy die boek aan ons verkoop en dat
jy toestemming gee dat as eienaar van die
boek jy al jou kliente
[oorswaai] na Absa Makelaars (EDMS) Bpk. Absa sal dan 30 dae
kennisgewing aan die kliente gee tov van
die aanstelling
(verkoop).”
Ms
O’Reily did not know that the applicant would receive 100%
commission on his existing book as in terms of the first
respondent’s remuneration policy, new brokers are normally
entitled to a share percentage of 70% commission on their existing
book for 12 twelve months and therefore on the same day replied as
follows and forwarded the reply to the applicant:
“’
Makelaar
kode vir bestaande boek 271750 benodig deling op die bestaande boek.
Aangehegte moet
voltooi word sodat [ons] die pri’s kan skep.
(See attached
file: Existing Book Template.xls)’”
(vi)
To this Mr. Liebenberg replied to both Ms O’Reily and the
applicant as follows:
“’
Dankie
Annetjie, ons betaal Nico vir 18 maande 100% van sy bestaande boek
soos per ooreenkoms met hom gesluit.
Nico, gebruik
asb die aangehegte spreadsheet sodat [kommissie] ad jou PRi’s
kan skep.’”
“
PRI”
refers to policy –related information.
(vii)
It appears therefore that it was made clear to applicant and others
that the first respondent would pay the applicant a 100%
share
percentage on his existing book for a period of 18 months as per
agreement reached with the applicant. No objection to this
was raised
by the applicant.
(viii)
On the contrary, it was common cause at the enquiry that the
applicant gave permission for his existing book to be transferred
to
the first respondent so that the commission thereon was paid to the
first respondent, which in turn paid 100% thereof to the
applicant.
This was not written permission but nothing turns hereon. No
explanation was provided by the applicant at the enquiry
for these
objective facts that militate strongly against the applicant’s
version. (On the basis that regard must be had to
the explanations in
this regard proffered by the applicant in the papers before us, it
must be said that I find them to be plainly
false and contradictory.
The applicant said that a second broker code was allocated to him by
the first respondent in order to
indicate that he remained the owner
of his existing book. He also said that Ms O’Reily’s
actions were intended to ensure
that the first respondent’s
records clearly recorded that the applicant remained the owner of his
existing book and therefore
entitled to all the commissions or fees
paid in respect thereof. He said that he simply granted permission to
register the clients
in his existing book on the first respondent’s
systems as he lacked the administrative infrastructure needed to
perform the
necessary administration, which was due to the closure of
the office from which he had conducted business. But when explaining
why he only granted this permission during October 2007 he said that
was because he felt uncomfortable about the registration of
his
existing book on the first respondent’s system. He said that he
was eventually forced to do so, apparently because of
the absence of
an administrative infrastructure to administer his existing book on
his own.)
(ix)
The argument of the applicant that he was paid for his existing book
what he would in any event have received, loses sight
thereof that it
was not possible to be employed by the first respondent without also
transferring his existing book to the first
respondent and that the
applicant at the time must have perceived good reason for him to
enter into the employ of the first respondent.
[26]
In my judgment a reasonable person could on this material conclude
that the applicant knew that he had sold his existing book
to the
first respondent and had therefore acted dishonestly to a degree that
impugned his honesty and integrity when he acted as
if he did not do
so. The reasoning of the decision-maker in my view was objectively
perfectly rational. There was a rational objective
basis justifying
the connection made by the administrative decision-maker between the
material available and the conclusion arrived
at. See
TRINITY
BROADCASTING (CISKEI) v INDEPENDENT COMMUNICATIONS AUTHORITY OF SOUTH
AFRICA
2004 (3) 346 (SCA) at 354 H – 355I.
CONCLUSION
[27]
It follows that in my view the application cannot succeed. Costs must
follow the result.
[28]
The application is dismissed with costs.
________________________
C.H.G. VAN DER MERWE,
J
I agree.
______________
L.J. LEKALE, AJ
On behalf of the
applicant: Adv. C.A. Human
Instructed by:
Lovius Block
BLOEMFONTEIN
On behalf of the first
respondent: Adv. B.C. Stoop
Instructed by:
Naudes
BLOEMFONTEIN
/sp