IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO: 13754/2024
In the matter between:
PRABASHNEE NAIDOO APPLICANT
and
SOUTH AFRICAN FRAUD PREVENTION SERVICE FIRST RESPONDENT
MARIS IT DEVELOPMENT (PTY) LTD SECOND RESPONDENT
CSG SECURITY (PTY) LTD THIRD RESPONDENT
(Reg No.: 1997/005499/07)
THE STANDARD BANK OF SOUTH AFRICA LIMITED FOURTH RESPONDENT
___________________________________________________________________
ORDER
___________________________________________________________________
The following order is made:
1. The application is dismissed.
2. The applicant is ordered to pay the costs of the third respondent on Scale B,
including the costs of counsel.
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___________________________________________________________________
JUDGMENT
Delivered on: 1 October 2025
___________________________________________________________________
Masipa J
Introduction
[1] The applicant seeks final interdictory relief directing the removal of her fraud
listing on the database maintained by the South African Fraud Prevention Service
(SAFPS).
[2] The first and second respondents abided the decision of the Court. The fourth
respondent did not oppose, and the applicant gave an undertaking not to seek relief
against it. Only the third respondent opposed and filed an answering affidavit and
heads of argument.
Background
[3] The listing arose from information provided by the second respondent and
filed by Mr Geldenhuys of the third respondent. SAFPS, a non -profit company, is a
registered credit bureau in terms of s 43 of the National Credit Act 34 of 2005 (the
NCA). The applicant was subject to a criminal investigation under CAS 54/01/2023.
In January 2024, the National Prosecuting Authority (the NPA) declined to prosecute
and entered a nolle prosequi decision in her favour.
[4] On 9 May 2024, before any application to SAFPS, the applicant lodged a
complaint with the National Credit Regulator ( the NCR). That complaint did not yield
a substantive result. In November 2024 and again in January 2025 she was informed
to restart the process, but these communications related to her earlier complaint and
not to the later refusal decision of SAFPS. On 6 June 2024 , the applicant formally
applied to SAFPS for removal of her listing. SAFPS responded on 13 June 2024 ,
refusing the request and expressly advised her of the right to pursue remedies with
the NCR or Ombudsman. However, the applicant did not challenge this decision with
the NCR or Ombudsman.
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[5] The applicant claims that the continued listing is wrongful, has resulted in
prejudice including the refusal of vehicle finance and infringes her constitutional
rights. In her view, it was sufficient that she had already lodged a complaint for the
listing with the NCR. According to her, the listing and not the refusal to delist her was
what she was challenging in these proceedings.
The applicant’s case
[6] The applicant contends that she has satisfied the requirements for a final
interdict as set out in Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd ,1 being a
clear right which she says arises from the nolle prosequi and which she contends
evidences the absence of any adverse finding of fraud ; an injury has already been
suffered through the declined finance application and will remain if the listing is not
removed; and lastly, that t here is no adequate alternative remedy , as the NCR
process has proved slow and ineffective.
[7] She disputes that she was obliged to bring review proceedings under Uniform
rule 53, since SAFPS itself abided and raised no objection to her approach. The
applicant further argues that she bears no duty to aver her innocence, the onus in
criminal law rests on the State. A nolle prosequi ended the fraud investigation, and
the SAFPS Code of Practice, which regulates members, cannot override
prosecutorial decisions or bind her personally.
The third respondent’s case
[8] The third respondent raises three main points:
(a) Incorrect procedure
[9] The third respondent submits that SAFPS’s decision of 13 June 2024 was a
statutory determination, and therefore susceptible only to review proceedings under
Rule 53. The applicant seeks to overturn the refusal without producing the review
record. This, the third respondent contends, renders the application procedurally
defective.2 While the decision in Du Bruyn v S outh African Fraud Prevention
defective.2 While the decision in Du Bruyn v S outh African Fraud Prevention
1 Masstores (Pty) Ltd v Pick n Pay Retailers (Pty) Ltd [2016] ZACC 42; 2017 (1) SA 613 (CC) para 8.
2 Kalefya v South African Fraud Prevention Services and Another [2022] ZAGPJHC 367.
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Services NPC and Another 3 was brought by way of ordinary motion rather than a
Rule 53 review, it illustrates the substantive grounds on which SAFPS decisions
have been tested. It does not, however, alter the principle that where the operative
decision is being set aside, the ordinary procedural vehicle is a Rule 53 review.
(b) Alternative remedy
[10] SAFPS expressly directed the applicant to the NCR and Ombudsman. These
are adequate remedies. While she had earlier complained to the NCR on 9 May
2024, this was before SAFPS’s refusal of 13 June 2024 . The later November 2024
and January 2025 follow -ups were continuations of that earlier complaint and not a
challenge to the refusal decision. After the refusal, she did not pursue the available
channels. A prior complaint cannot substitute for utilising the designated remedies
following the operative decision.
(c) Dirty Hands/ substantive merits
[11] The applicant has not positively alleged that she is innocent of fraud. When
challenged in the answering affidavit, she refused to do so. Fraud listings are not
contingent on conviction; they arise from credible evidence of fraudulent conduct
following investigation. A nolle prosequi is not an acquittal. Civil proceedings are
contemplated. In any event, listings are retained for ten years unless sufficient cause
for earlier removal is shown.
Issues
[12] The issues are:
(a) Whether the application is fatally defective for not being brought under rule
53;
(b) Whether the requirements for a final interdict are satisfied, particularly the
absence of an alternative remedy;
(c) The effect of the nolle prosequi decision on the applicant’s entitlement to
removal; and
(d) The characterisation of the decision under challenge: the initial listing, or
SAFPS’s refusal to delist.
3 Du Bruyn v South African Fraud Prevention Service NPC and Another [2024] ZAGPPHC 502.
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Analysis
Rule 53 and PAJA
[13] A preliminary difficulty lies in the form of proceedings. Rule 53 is not itself a
source of review powers but a procedural gateway. It requires the decision -maker to
file the record and entitles an applicant to supplement its papers. The substantive
grounds of review derive from either the Promotion of Administrative Justice Act 3 of
2000 (PAJA), if the decision qualifies as ‘administrative action, ’ or from the
constitutional principle of legality. Whether or not PAJA applies, the procedural
mechanism of rule 53 is ordinarily obligatory. By seeking to set aside the
consequences of the decision through an interdict, the applicant bypassed both the
substantive and procedural foundations of a review.
The nature of the decision under challenge
[14] There is also uncertainty as to which decision is properly before this Court.
The applicant frames her case as a challenge to the initial decision to list her and
thus invokes interdictory relief. The third respondent, however, correctly points out
that once the applicant disputed the listing, SAFPS rendered a determination on 13
June 2024 refusing to remove her from its database. That determination, rather than
the initial listing, is the operative decision presently affecting her rights. The proper
course would therefore have been to review that decision in terms of rule 53. To
seek an interdict against the consequences of the listing, without impugning the
refusal decision in review form, amounts to an indirect attempt to overturn it without
compliance with rule 53 procedure.
Final interdict
[15] The applicant has shown harm to her reputation and creditworthiness.
However, she cannot demonstrate the absence of an adequate alternative remedy.
Section 72 of the NCA, together with the oversight of the NCR and the Ombudsman,
provides a statutory framework for challenging adverse listings. Her earlier NCR
complaint of 9 May 2024 preceded the SAFPS decision and therefore does not
complaint of 9 May 2024 preceded the SAFPS decision and therefore does not
qualify as a proper pursuit of those remedies. After the refusal, she did not engage
the available channels.
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The effect of the nolle prosequi
[16] The applicant’s reliance on the nolle prosequi is misplaced. Such a decision is
not equivalent to an acquittal. It does not expunge suspicion of fraud, nor does it bar
civil proceedings. As the third respondent points out, the standard for a fraud listing
is not criminal proof beyond reasonable doubt but credible evidence.
Applicant’s omission to aver innocence
[17] Of concern is the applicant’s failure to make a positive allegation that she is
not linked to fraud, even when directly challenged. While the criminal law imposes no
onus on an accused to prove innocence, these proceedings are not criminal in
nature. Her silence weighs against her case, particularly in light of the detailed
allegations set out in the third respondent’s papers.
Constitutional considerations
[18] The applicant has invoked her constitutional rights to dignity and to fair
administrative action. These rights are of central importance, and any adverse listing
that unjustifiably tarnishes a person’s reputation would implicate them. However, the
NCA establishes a regulatory framework that gives effect to these rights through
statutory remedies, including referral to the NCR and the Ombudsman. Until those
remedies are exhausted, it cannot be said that the applicant’s constitutional rights
have been unjustifiably limited. The constitutional dimension does not therefore alter
the outcome of this application.
Conclusion
[19] The applicant approached this Court on the basis that a nolle prosequi
decision in her favour entitled her to be removed from the SAFPS fraud database.
That contention cannot be sustained. A decision not to prosecute is not a judicial
pronouncement of innocence. It does not expunge adverse information or prevent
civil proceedings. To premise a clear right solely on a nolle prosequi is to conflate
prosecutorial discretion with exoneration.
[20] The matter is compounded by the form of proceedings. What is effectively
[20] The matter is compounded by the form of proceedings. What is effectively
sought is to undo SAFPS’s refusal of 13 June 2024. That is a decision taken in the
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exercise of statutory power. The proper remedy was to bring review proceedings
under rule 53, read with PAJA if applicable, or under the principle of legality. The
interdictory route chosen by the applicant seeks to bypass the procedural safeguards
inherent in the review process, including the filing of the record.
[21] Even if the application were properly before this Court, the applicant has not
met the substantive requirements for a final interdict. She has demonstrated harm to
her reputation and credit standing, but she cannot establish the absence of an
adequate alternative remedy. The statutory scheme of the NCA provides her with
recourse to the NCR and Ombudsman. Her earlier complaint to the NCR, lodged on
9 May 2024, preceded the SAFPS refusal. After that refusal, she did not pursue the
remedies expressly advised to her. A litigant cannot disregard the remedies provided
by statute and fall back upon the Court as a first resort.
[22] The Court is not insensitive to the stigma that may flow from an adverse fraud
listing. The constitutional rights to dignity, reputation, and fair administrative action
are implicated. But those rights are given practical content by the statutory
framework, which must first be exhausted before judicial relief can be considered. To
hold otherwise would undermine the careful regulatory balance struck by the NCA. In
sum, the application is procedurally misconceived and substantively premature. The
applicant has not established a right to the extraordinary relief of a final interdict.
Order
[23] The following order is made:
1. The application is dismissed.
2. The applicant is ordered to pay the costs of the third respondent on Scale B,
including the costs of counsel.
__________________
MASIPA J
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APPEARANCE DETAILS:
For the applicant: Ms K Gopal
Instructed by: Arusha Naidoo & Associates
For the respondent Mr AJ Gevers
Instructed by: Mooney Ford Attorneys
Matter heard on: 11 September 2025
Judgment delivered on: 1 October 2025