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[2010] ZAFSHC 61
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Odendaal v ABSA Brokers (Pty) Ltd and Another (2243/2010) [2010] ZAFSHC 61 (25 June 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case
No.: 2243/2010
In the
matter of:
NICOLAAS
ODENDAAL
Applicant
and
ABSA
BROKERS (PTY) LTD
1
st
Respondent
FINANCIAL
SERVICES BOARD
2
nd
Respondent
J
UDGMENT:
DAFFUE, AJ
_
____________________________________________________
HEARD
ON:
10 JUNE 2010
_____________________________________________________
DELIVERED
ON:
25 JUNE 2010
_____________________________________________________
INTRODUCTION
[1]
The
applicant is a former employee of first respondent. He was employed
as a representative of first respondent who conducts business
as an
authorised financial services provider as defined in the Financial
Advisory and Intermediary Services Act no 37 of 2002 (the
Act). On
19 June 2009 applicant filed a review application in terms whereof he
seeks the review and setting aside of a decision
made by the first
respondent on 11 Desember 2008 in terms of which it debarred
applicant as representative in accordance with the
provisions of
section 14 of the Act.
[2] On
29 October 2009 first respondent filed the record of proceedings
sought to be reviewed. This was more than three months
late. On 12
November 2009 the reasons for the decision sought to be set aside
were filed. Applicant was dissatisfied with first
respondent’s
response and embarked upon a process in terms whereof a rule 30 A(1)
notice was eventually served on first respondent.
No reply was
received and applicant’s frustration culminated in the present
application.
[3] In
this application the applicant seeks an order in accordance with the
provisions of rule 30A(1) in terms whereof first respondent
is
directed to file:
3.1
All
documentation considered by the individual who took the decision to
debar the applicant on behalf of the first respondent;
3.2 The
written notification of the applicant’s debarment, together
with the reasons for said debarment, which it was enjoin
ed
to furnish to the Registrar of Financial Services Providers by virtue
of the provisions of section 14(3) of the Act;
3.3 A legible (typed)
transcript of the record of the disciplinary enquiry conducted by it
on 27 November 2008.
[4] Applicant
also seeks leave
,
in the event of first respondent failing to comply with the order
sought, to approach the court on the same papers duly amplified
for
an order reviewing and setting aside the decision made by first
respondent on 11 Desember 2008.
[5] First
respondent elected to oppose the present application and filed an
opposing affidavit to which applicant replied. The
matter was argued
by Mr Human on behalf of applicant and by Mr Cilliers on behalf of
first respondent. Second respondent did not
oppose the application.
THE REQUEST FOR ALL
DOCUMENTATION CONSIDERED
[6] The
documents filed on 29 October 2009 in the review application in
accordance with the provisions of rule 53(1)(b) are voluminous.
The
bundle contains numerous correspondence, the employment contract
of
applicant, as well as a handwritten transcript of a disciplinary
enquiry held on 27 November 2008 by a certain Mr Koen on behalf
of
first respondent. Applicant is dissatisfied with the documents filed
and maintains that it is evident that certain further
documents must
have been considered by the individual who gave the decision on 11
December 2008 which is the subject of the review
application. In
this regard it must be mentioned that first respondent has stated
categorically that Mr Koen took a decision on
27 November 2008 and no
further decision was taken by any other individual in the employ of
first respondent pertaining to the
debarment of applicant. I accept
that the correctness of this statement is severely put in dispute,
but in my view this is an
aspect to be considered on review.
[7] Nowhere
in the founding affidavit could I find any averment pertaining to
additional documents that might be available or might
have been
considered by the decision maker. No documents have therefore been
identified. I have also requested applicant’s
counsel during
his oral argument to address me on this issue and to inform me what
further documentation applicant had in mind.
I did not get a
positive response.
[8] It
is generally accepted that courts are reluctant to go behind a
discovery affidavit which is generally regarded as conclusive,
save
where it can be shown either (1) from the discovery affidavit itself,
(2) from the documents referred to in the discovery
affidavit; (3)
from the pleadings in the action, (4) from any admission made by the
party making the discovery affidavit, or (5)
the nature of the case
or the documents in issue, that there are reasonable grounds for
supposing that the party has or had other
relevant documentation in
his or her possession or power, or has misconceived the principles
upon which the affidavit should be
made. See
SWISSBOROUGH
DIAMOND MINES v GOVERNMENT OF THE RSA
1999 (2) SA 279
(T) at 320F –H and
Erasmus
Superior Court Practice
B1-256A. The same principle should apply in this instance. Although
it might be doubtful whether Mr Koen really made a decision
on 27
November 2008, or thereafter only or whether the decision maker was
another individual in the employ of first respondent,
I have to
accept that no other documentation exists on which the decision by
whoever taken, was made. Consequently the applicant
is not entitled
to the relief claimed in paragraph 1.1 of the Notice of Motion.
WRITTEN
NOTIFICATION AND REASONS FOR DEBARMENT FURNISHED TO THE REGISTRAR OF
FINANCIAL SERVICES PROVIDERS
[9]
Applicant
seeks delivery of these documents and the reasons in prayer 1.2 of
the Notice of Motion. First respondent is of the
view that applicant
is not entitled to the documentation and reasons. However and
without conceding the point, it referred to
the charge sheet and
record of proceedings already filed in the review application and
which were attached to the letter dated
11 December 2008 by first
respondent’s Compliance Officer, Mr Scholtz, to second
respondent. It is first respondent’s
case that Mr Scholtz only
conveyed the decision of Mr Koen dated 27 November 2008 and that he
had no authority to reconsider the
merits of the decision or to take
a decision
de
novo
.
I have difficulty in understanding first respondent’s version,
especially in the light of the mere recommendations made
by Mr Koen
ex
facie
his handwritten notes and the contents of the letters of 3 December
2008 attached as annexure HS1 and of 11 December 2008 attached
as
annexure HS2 to the answering affidavit. However, I accept for
purposes of the adjudication of this application that it is
first
respondent’s case that a decision has been taken on 27 November
2008. Based on this fact, it is alleged that the
correspondence
between first and second respondents thereafter and in particular on
11 December 2008 is irrelevant as far as applicant’s
review
application is concerned. This contention must now be considered.
[10] Section
13(3) of the Act reads as follows:
“
(3) The
authorised financial services provider must maintain a register of
representatives, and key individuals of such representative
s,
which must be regularly updated and be available to the registrar for
reference or inspection purposes.”
An
authorised financial services provider is duty bound to ensure that
any representa
tive
of such provider which no longer complies with the requirements of
the act is prohibited from rendering any new financial service
by
withdrawing his authority to act on behalf of the provider. The
provider must also ensure that the guilty representative’s
name
is removed from the register referred to in section 13(3). See
section 14(1).
Section 14(3)(a) reads
as follows:
“
The
authorised financial services provider must within a period of 15
days after the removal of the names of a representative and
k
ey
individuals from the register as contemplated in subsection (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.” (emphasis added)
[11] I
n
the light of the peremptory provisions of section 14. I am of the
view that an applicant seeking the review of a decision to
debar him,
is entitled to know what reasons have been provided to the second
respondent. As indicated such reasons must be provided
within 15
days after the removal of the person’s name from the register.
A review application may be instituted much later
and it is possible
that the decision maker may advance totally different reasons in
accordance with the provisions of rule 53 in
an effort to
substantiate the decision taken by him much earlier and before he had
an opportunity to consult with legal representatives.
[12] I
am therefore of the view that applicant was fully within his rights
to serve the notice in terms of rule 30A(1) pertaining
to this aspect
and insofar as there was no compliance with the notice, to launch
this application. There might have been some
merit in Mr Cilliers’s
argument that should I find in favour of applicant in this regard,
applicant should only be awarded
costs until the time that the
answering affidavit was filed. However, it must be mentioned that at
no stage did first respondent
tender the costs of the application on
the basis of the argument advanced by Mr Cilliers. In the light of
the finding in respect
of prayer 1.3 of the Notice of Motion, it is
unnecessary to consider the issue of costs in more detail.
A
LEGIBLE (TYPED) TRANSCRIPT OF THE RECORD OF THE DISCIPLINARY ENQUIRY
[13] The
copy of the handwritten transcript att
ached
to the application papers in this application and as contained in the
court file was largely illegible. However, on perusal
of the record
filed with the court in the review application, it was possible to
make much more sense of the handwritten notes,
but I was still
uncertain about several aspects, especially pertaining to
abbreviations made use of, etc. The review Court should
not be
burdened with a partly illegible document.
[14] The
decision maker is required in terms of rule 53(1)(b) to dispatch
within 15 days after receipt of the notice of motion to
the registrar
the record of such proceedings sought to be corrected. Upon receipt
thereof the registrar shall make available to
applicant the record
dispatched and the applicant shall thereupon cause copies of such
portions of the record as may be necessary
for the purposes of the
review to be made and shall furnish the registrar with two copies
thereof and each of the other parties
with one copy. See rule 53(3).
It is also stated in the aforesaid rule that the costs of
transcription, if any, shall be borne
by the applicant and shall be
costs in the cause.
[15] Rule 62(2) reads as
follows:
“
All
documents filed with the court, other than exhibits or facsimiles
thereof, shall be clea
rly
and legibly printed or typewritten in permanent black or blueblack
ink on one side only of paper of good quality and of A4 standard
size.”
“Documents”
is not defined in clause 1 of the rules, but in my view the written
records of proceedings kept by Mr Koen
cannot be regarded as an
exhibit. Therefore first respondent was duty bound to file a legibly
typewritten version of the aforesaid
proceedings which it failed to
do.
[16] Even
if I am wrong in my conclusion arrived at in the previous paragraph
,
I am of the opinion that no duty is cast upon an applicant in rule 53
to prepare of a typewritten version of a handwritten document
filed
by the decision maker, especially if such handwritten document is
illegible and/or incomplete, either totally or only in
part. The
decision maker whose handwriting appears on parts of the record filed
with the court is primarily the best person to
decipher his own
handwriting and to arrange for a typewritten copy thereof.
Consequently I find that first respondent was obliged
to comply with
applicant’s notice in terms of rule 30A(1) pertaining to the
provision of a legible (typed) transcript of
the record of the
disciplinary enquiry conducted by Mr Koen on 27 November 2008. See
J
R de Ville,
Judicial
Review of Administration Action in South Africa
,
revised 1
st
edition, p 309;
Harms,
Civil
Procedure in the Supreme Court
,
B-377 pertaining to an incomplete record and the same should apply to
an illegible record.
CONDUCT OF FIRST
RESPONDENT
[17] It
is deemed apposite to make remarks pertaining to the obstructive
behaviour of first respondent throughout and since receipt
of
the application for review. Its attitude towards the rules of this
court is clearly disrespectful. Notwithstanding a far-reaching
decision taken by it pertaining to the career of applicant, it
delayed finalisation of the review application, apparently
deliberately,
insofar as the record of proceedings and reasons were
filed extremely late. Thereafter, and notwithstanding several
requests made
by applicant’s attorneys it failed to adhere
thereto whereupon a notice in terms of rule 30A(1) was eventually
filed on 25
February 2010. No response was received from first
respondent and in this regard it is merely stated on behalf of first
respondent
that the notice was ill conceived and that it was not in
law obliged to react thereto. However, this contention was not put
on
record in reply to the rule 30A(1) notice. The same information
set out in the rule 30A(1) notice was requested earlier in a letter
of 5 January 2010 by applicant’s attorneys. First respondent
did not make it clear then that applicant was not entitled
to the
documentation and/or information, but merely asked on several
occasions for an opportunity to obtain proper instructions.
Mr Human
asked for costs on attorney and client scale, contrary to the relief
claimed in the Notice of Motion. Although this
is a borderline case,
I have not been persuaded to grant such an order.
THE CONSEQUENTIAL
RELIEF SET OUT IN PRAYER 2 OF THE NOTICE OF MOTION
[18]
I
am not prepared to grant the relief set out in prayer 2 of the notice
of motion. The review application under case no A112/09
must be
dealt with separately and in the normal cause of events. If first
respondent fail to comply with the order to be pronounced
herein,
applicant will be entitled to institute contempt of court proceedings
and this should afford him sufficient relief.
THE ORDER
[19] The
following orders do
issue:
1. First respondent is
directed to lodge with the registrar of this court within 15 days of
the service of this order on its attorneys
of record a eligible (a
typed) transcript of the record of the disciplinary enquiry conducted
by it on 27 November 2008.
2. First respondent is
ordered to pay the costs of this application.
_
______________
J.
P.
DAFFUE, AJ
On
behalf of the applicant: Adv. C. A. Human
Instructed
by:
Lovius-Block
BLOEMFONTEIN
On
behalf of the first respondent: Adv. H. J. Cilliers
Instructed
by:
Naudes
BLOEMFONTEIN
/em