IDGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION , PRETORJA)
In the matter between:
PRUDENTIAL AUTHORITY
and
AHJEETH DHRUPLAL JAIJAI
FINANCIAL SERVICES TRIBUNAL
CASE NO: A328/2023
( I) R E POR T ABL E: NO
(2) OF INTE RE ST TO OTHER JU DG ES: NO
(3) R EV ISED .
DA TE: . .f. OCTOBER 2
SIGNA TURE
Appellant
First Respondent
Second Re spondent
Summary: Appeal of a decision by the Financial Services Tribunal (FST),
Jurisdiction of the Prudential Authority (PA) - Employer/employee
dispute falling outside the jurisdiction of the PA. Even if such a
dispute involves a financial institution, it does not engage financial
2
sector law. Position confirmed by the FST A review of the FST's
view and a remittal by the court of first instance reversed on appeal.
ORD E R
l. The appeal is upheld w ith costs, including the costs of two counsel,
where emp loyed.
2. The order of the court a quo is replaced with the following:
"The application i.s dismissed with costs, including the costs of two
counsel, where employed''.
J U DG MENT
The matter was heard in open court and the judgment was prepared and authored
by the judge whose name is reflected herein and was handed down electronically
by circulation to the parties ' legal representatives by email and by uploading the
electronic file of this matter on Caselines. The date of handing-down is deemed
to be 1 O ctober 2025.
DA VI S, J (Barn J et Mooki J concurring)
3
Introduction
[l] The applicant m the mam application was an erstwhile employee of
Investec Bank Ltd (Investec). After his resignation in 2014, he referred his
perceived prejudicial treatment by Investec to the Prudential Authority (the PA)
in 2019 as a disclosure in terms of the Protected Disclosures Act1 (the PDA) .
[2] The PA found that the applicant's referral did not trigger a financial sector
law and as such did not engage the PA 's jurisdiction. Accordingly, the PA
declined to take a decision on the referral. Aggrieved with this view, the applicant
turned to the Financial Services Tribunal (the FST) for a reconsideration of the
decision by the PA.
[3] The FST in turn, confirmed the view that the PA's jurisdiction was not
engaged and refused the reconsideration application.
[ 4] The applicant then turned to this court. Sardiwalla J, sitting as the court of
first instance, found for the applicant and remitted his reconsideration application
to the FST.
[5] On appeal, the PA again contended that its jurisdiction was never engaged
by the applicant's refen-al and that any reconsideration thereof by the FST would
not be permissible in law.
[ 6] The PA was the appellant before us and the initial applicant was the first
respondent. The FST was the second respondent. The parties shall, for the sake
of convenience, be referred to as in this introduction. The FST did not participate
in this appeal.
1 26 of 2000 .
4
The applicant's case
[7] In his founding affidavit in the main application (for the review of the
FST's "decision"), the applicant stated that he had resigned his employment at
Investec in 2014 " ... due to what I believed to be material misrepresentations
about my performance, financial prejudice against me in the 2013/2014 financial
year concerning the awarding of bonuses and concerns about preferential
treatment of white male employees at Investec. I considered the treatment that I
was subjected to by employees and directors of Investec during this time as
unfair, discrim;natory and a violation of my human dignity"2.
[8] Three years after his resignation, the applicant submitted his complaint to
the Remuneration Committee and the Social and Ethics Committee oflnvestec's
Board. Following extensive engagement and an unsuccessful mediation attempt,
the applicant's complaints were dismissed in December 2018.
[9] A year later, on 10 December 2019, the applicant lodged his referral with
the PA. He claimed to do so as a protective disclosure3. This "disclosure" is, by
the applicant's own admission, voluminous.
[ 1 OJ After extensive exchange of correspondence and investigation, the PA on
4 March 2021 responded as follows:
"The PA 's primary mandate is to promote and enhance the safety
and soundness of financial institutions. The PA 's approach to
supervision is risk-based, and as such, it focuses resources in areas
which pose the greatest risk to the achievement of the PA 's
objectives as well as to the safety and soundness of the financial
2 Paras 14 and 15 of the Founding Affidavit.
3 As contemplated in section 8 of the PDA.
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system in its entirety. Furthermore, ongoing supervision includes
monitoring licenced financial institutions ' adherence to financial
sector laws and related prudential requirements. In this instance
the requirements contained in the Banks Act 94 of 1990 (the Banks
Act) and the Regulations relating to Banks (the regulations) are
particularly relevant.
The PA has duly considered the contents of your disclosure under
reference and, cognisant of the ambit of the above-mentioned
mandate and supervisory approach, thoroughly assessed all
allegations raised in the disclosure documentation that.fall within
the PA 's ambit of responsibilities as prudential supervisor. In this
regard, the PA did not identify any matters of concern nor any
reasons to believe that Investec Bank Limited {Investec) contravened
or transgressed the provisions of the Banks Act and the Regulations.
Accordingly, the PA cannot be of any further assistance to you and,
from the PA 's perspective, the matter is regarded as finalized'.
[11] The applicant considered the above response to be without sufficient
reasons and asked for same . Upon not receiving a response satisfactory to the
applicant, save for referrals to the relevant statutory position, including that of the
Reserve Bank, the applicant turned to the FST for a reconsideration of the
"decision" by the PA .
[12] The FST was of the view that the PA had not taken a "decision" as
contemplated in section 218 of the Financial Sector Regulation Act4 (the FSRA)
4 9 of 2017 .
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and summarily dismissed the reconsideration application for being frivolous and
without merit.
[13] The applicant turned to the court a quo on 22 September 2022 and on 17
August 2023 Sardiwalla J reviewed the FST's "decision" and remitted the matter
to the FST. The PA and the FST were also ordered to pay the costs of the review
application.
The statutory framework
[14] It is apposite to have regard to the statutory framework before considering
the positions taken by the PA and the FST , particularly in view of the fact that
their views are that their jurisdiction was never engaged.
[15] The PA is a creature of statute, established in terms of section 32(1) of the
FSRA. It is a juristic person operating within the administration of the South
African Reserve Bank as a financial sector regulator. The objectives of the PA ,
set forth in the FSRA , are to:
promote and enhance the safety and soundness of financial
institutions that provide financial products and securities
services;
promote and enhance the safety and soundness of market
infrastructures;
protect financial customers against the risk that those financial
institutions may fai I to me et their obligations; and
assist in maintaining financial stability.
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[ I 6] Section 34 of the FSRA sets out the functions of the PA and provides as
follows:
"Functions
34 (1) In order to achieve its objective, the Prudential Authority
must:-
(a) regulate and supervise, in accordance with the
financial sector laws:-
(i) financial institutions that provide financial
products or securities services; and
(ii) mark et infrastructures;
(b) co-operate with and assist the Reserve Bank, the
Financial Stability Oversight Committee, the Financial
Sector Conduct Authority, the National Credit
R egulator and the Financial Intelligence Sector, as
required in terms of this Act;
(c) co-operate with the Council for Medical Schemes in the
handling of m atters of mutual interest;
( d) support sustainable competition in the provision of
financial products and financial services, including
through co-operating and collaborating with the
Competition Commission,·
(e) supportfinancial inclusion,·
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(j) regularly review the perimeter and scope of financial
sector regulation, and take steps to mitigate risks
identified to the achievement of its objective or the
effective performance of its functions; and
(g) conduct and publish research relevant to its objective.
(2) The Prudential Authority must also perform any other
function coeferred on it in terms of any other provision of this
Act or other legislation.
(3) The Prudential Authority may do anything else reasonably
necessary to achieve its objective, including;-
( a) co-operating with its counterparts in other
jurisdictions,· and
(b) participating in relevant international regulatory,
supervisory, financial stability and standard setting
bodies.
(4) When performing its functions, the Prudential Authority
must:-
( a) take into account the need for a primarily pre-emptive,
outcomes focussed and risk-based approach, and
prioritise the use of its resources in accordance with
the significance of risks to the achievement of its
objective,· and
9
(b) to the extent practicable, have regard to international
regulatory and supervisory standards set by bodies
referred to in subsection (3)(b), and circumstances in
the R epublic.
(5) The Prudential Authority must perform its functions without
fear, favour or prejudice".
[17] The Bank s Act is one of the financial sector laws in accordance with which
the PA has to regulate and supervise financial institutions ( as refetTed to in par
[10] above). Beyond the Banks Act, the PA is, in terms of the PDA, read with
the PD Regulations, given an additional mandate to deal with protected
disclosures.
[18] The PDA provides in section 8 thereof that a disclosure that is made in
good faith to a person or body and in respect of which an employee reasonably
believes that the relevant impropriety falls within any of the descriptions of
matters which, in the ordinary course, are dealt with by such a body, is a protected
disclosure.
[19] The persons to whom protective disclosures are made, are also statutorily
regulated. In terms of regulation 2(1) of the Regulations Relating to Protected
Disclosures, 2018, read with annexure "A" thereto, the PA together with the
Financial Sector Conduct Authority, may receive and investigate irregular or
improper conduct or impropriety with regard to financial institutions and the
provision of financial services.
[20] There is also an additional responsibility of the PA which emanates from
its role as a supervisory body in terms of the Financial Intelligence Centre Act 3 8
of 2001 where it has a mandate limited to the receipt and investigation of
10
disclosures into alleged irregular or improper conduct or impropriety with regard
to money-laundering activities or the financing of terrorist and related activities.
[21] What constitutes a "decision" by the PA in relation to any of its
responsibilities, is prescribed by the definition thereof in section 218 of the
FSRA, which provides as follows:
"218. For purposes of this Chapter- "decision" means each of the
following:
(a) a decision by a financial sector regulator or the Ombud
Council in terms of a financial sector law in relation to
a specific person;
(b) a decision by an authorised financial services provider,
as defined in section 1 of the Financial Advisory and
Intermediary Services Act, in terms of section 14 of that
Act in relation to a specific person;
(c) a decision in relation to a specific person by a market
irifrastructure, being a decision in terms of rules of the
market infrastructure contemplated by the Financial
Markets Act, or a decision contemplated in section J 05
of the Financial Markets Act,·
( d) a decision of a statutory ombud in terms of a financial
sector law in relation to a specific comp laint by a
person,·
(e) a decision of a kind prescribed by Regulation for the
purposes of this paragraph,
11
and includes:-
(I) an omission to take such a decision within the period
prescribed or specified in a financial sector law, rules,
or other requirements pertaining to the decision-maker;
(g) an omission to take such a decision within a reasonable
period, if the applicable financial sector law, or rules
of or other requirements pertaining to, the decision
maker require the decision to be taken but without
prescribing or specifying a period;
(h) an action taken as a result of such a decision; and
(i) an omission to take action as a result of such a decision
within the prescribed or reasonable period, if the
applicable financial sector law requires the action to be
taken but does not prescribe a period'.
[22] Section 230 of the FSRA provides for reconsideration by the FST of
decisions taken by various bodies. A reconsideration of a decision in terms of
Part 4 of the FSRA constitutes an inte1nal remedy as contemplated in section 7(2)
of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA").
The position of the PA and the FST
[23] The FST did not file any papers in the court proceedings. The Deputy
Governor of the Rc.5cl'Vc Bank dcpo5cd to the am;wcring affidavit on behalf of
the PA. He was also the Chief Executive Officer of the PA until 31 March 2022.
12
[24] He stated the PA' s principal contention as being that the applicant's
referral to the PA did not fall within a financial sector law. The PA, accordingly,
could not, and did not, take a "decision" in terms of such law.
[25] In order to illustrate why the applicant's referral fell outside financial
sector law; the Deputy Governor dealt with the referral and the "disclosure" as
follows:
"25. It is clear from the founding affidavit that the primary
complaint that precipitated the Disclosure and the review
application, is one that is born of a labour-related dispute with Mr
Jaijai's erstwhile employer, Investec. The founding affidavit that Mr
Jaijai has deposed to, is replete with references to discriminatory
and/or unfair labour practices that were in his view, perpetuated
against him by Investec. The founding affidavit indicates that-
25.1. he resigned from Investec in 2014 due to what he
believed to be material misrepresentations about his
performance, financial prejudice against him in the
2012/2013 financial year concerning the award of bonuses
and concerns about preferential treatment of white males
employed at Investec,·
25.2. he considered the treatment that he was subjected to by
employees and directors at Investec during his time as unfair,
discriminatory and a violation of his human dignity;
25.3. in 2017 (being approximately 3 years after his
resignation from Investec) Mr Jaijai submitted a referral to
the Chairs of the SEC and the renumeration committee as he
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remained aggrieved by the circumstances which led to his
resignation, and the unfair discrimination and undignified
way in which he was treated;
25.4. the referral to the SEC detailed his grievances and he
requested that the remuneration committee and the SEC
investigate non-compliance with Investee's remuneration
policy, breaches of the Companies Act (particularly in what
Mr Jaijai considered to be fraudulent conduct) and
preferential treatment of white male employees.
26. Pursuant to the latter referral process by Mr Jaijai, where
various statements and documents were exchanged, the SEC in
December 2018 resolved to dismiss the referral and take no further
action.
27. According to Mr Jaijai, the directors and senior executives at
Investec, inter alia:
27. 1. failed in their fiduciary duties;
27.2. failed to act in good faith and for a proper purpose,·
27.3. engaged in conduct that was unethical, untransparent
and potentially constituted fraud;
27.4. failed to act in accordance with the remuneration
policy and the Investec employee integrity policy,·
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2 7. 5. failed to provide reasons for the decision in conducting
the referral process and by resolving to dismiss and take no
further action.
28. On JO December 2019, Mr Jaijai submitted a protected
disclosure ;n terms of the PDA to the PA. Mr Jaijai makes the
following allegations against Investec:
28.1. he details material contraventions relating to, ;nter
alia, corporate governance {remuneration) under the Banks
Act and its R egulations, together with contraventions under
the Companies Act (paragraph 1.2);
28.2. he, on 29 September 2017, submitted a referral
requesting, inter alia, allegations pertaining to non
compliance with the Investec remuneration policy and the
crime of fraud under the Companies Act to be investigated
(paragraph 1. 4);
28.3. as a secondmy matter, the referral "requested that in
relation to discrim;natory treatment of Black professionals, a
process be ;nitiated in terms of which a panel comprising
credible non-Investec associated persons be established to
investigate such discriminatory claims and patriarchy in the
form of White Male Privilege and Entitlement" (paragraph
1.5)
28.4. during the process of mediatfon with Investec, he
indicated that the resolution he required was for "the
impairment to his dignity to be remedied' paragraph 1.11);
15
28.5. the purpose of the Disclosure is to raise, inter alia,
contraventions of the Banks Act and Regulations thereto, the
Companies Act and the PDA in relation to section 3(b)(iv)
thereof (paragraph 1.14);
28.6. a consequence of the aforementioned contraventions
"was the impairment of Jaijai's dignity, loss of earnings and
future Investec-related earnings. However , notwithstanding
the aforegoing, Jaijai did not seek a cash settlement but
sought a solution to solve for the impairment to his dignity"
(paragraph 1.15).
29. It is thus evident that Mr Jaijai's referral and aforementioned
complaints which resulted in the Disclosure culminated in him being
denied a bonus by Investec which, according to Mr Jaijai, was due
to factors that were taken into account by Investec which were
outside of the remuneration policy.
30. His complaint does not fall within the ambit of a financial
sector law defined in the FSRA , and it is not one contemplated under
the PD Regulations for the PA to investigate.
The jurisdiction point raised by the PA
31. It is also evident,from a consideration of the Disclosure as a
whole, that Mr Jaijai mistakenly considers what is primarily an
employm ent- related dispute related to unfairness and/or
discrimination, as constituting contraventions of numerous
provisions of financial sector and other laws and being within the
ambit of the PA.
16
32. The Labour Relations Act, No. 66 of 1995 ("the LRA '')
provides that one of its objectives is to promote the effective
resolution of labour disputes. It further provides for procedures for
the resolution of uefair labour practices. This is one of the avenues
that Mr Ja-i_jai could have pursued in reporting the discrimination
which is essentially the nexus of his Disclosure.
33. As indicated above, the PA's primary objective is to, inter
alia, assist in maintaining financial stability and ensuring that
financial customers are protected against the risk that financial
institutions may fail to meet their obligations".
[26] After the PA had disclosed the above stance to the complainant, he
requested reasons for the PA's decision. The PA, through its attorneys, thereupon
informed the applicant that it had not taken a "decision" and therefore cannot give
reasons for such a purported decision. A "decision" is one taken in terms of the
financial sector law as contemplated in section 218 of the FSRA, and this had not
taken place.
[27] When the matter was referred to the FST for a reconsideration of the
purported decision, the applicant was informed that the FST's position was the
following:
"More particularly, in terms of section 218 of the FSRA, a
"decision" which is subject to the jurisdiction of this Tribunal in
terms of section 230 of the FSRA is "a decision by a.financial sector
regulator ... in terms of a financial sector law in relation to a specific
person". The PA took no decision in terms of any financial sector
law and the PDA , pursuant to which the Disclosure was made, is not
a financial sector law. For the sake of completeness we advise that
Evaluation
17
the Banks Act 94 of 1990 (which is financial sector law) did not
require any decision to be taken, does not provide for any decision
in relation to such Disclosure, and no decision was taken by the PA ,
in this regard'.
[28] The starting point in determining whether the applicant has made out a case
for the relief sought, is to have regard to the notice of motion in the main (review)
application. Therein, the applicant sought to attack the "decision" of the FST.
[29] In his supplementary affidavit, delivered after receipt of the record, the
applicant confirmed this as follows: "my main objective in bringing these
proceedings is to challenge the decision by the first respondent [the FST] and
ultimately cause it to re-adjudicate the application for reconsideration"5•
[30] The applicant's ar·gument in respect of the FST decision, is that it is
procedurally flawed ( on the basis of only having been taken by the deputy
chairperson, Mr Justice L TC Harms (retired) and not the full panel and that he
had neither been afforded an oral hearing or sufficient reasons). The applicant
then argues that a review would be warranted even where " ... a mandatory or
Jurisdictional requirement had not been met''6.
[31] In addition to his procedural attack, the applicant alleges that the FST
committed a material error of law. He argued that it was arbitrary, irrational and
unreasonable for the FST to have mero motu decided on its jurisdiction and to
thereafter summarily dismiss the application for reconsideration.
5 Par 11 of the Supplementary Affidavit, Caselines 06-5
6 Par 15.1.1 of the Supp lem entary Affidavit, Caselines 06-5.
18
[32] The applicant expressly disavowed any attack on what he alleged
constituted the decision by the PA, which he had referred to the FST.
[33] The determinative issue is therefore the jurisdiction of the FST.
[34] The FST has the authority to reconsider decisions of the PA. It derives this
power from section 230 of the FSRA. lt is a creature of statute and cannot
function outside the powers allocated to it by statute. This much is clear.
[35] The decisions which the enabling statute empowers the FST to reconsider
in respect of those made by the PA , are prescribed in section 218(a) of the FRSA.
Even in circumstances where a decision relates to a " ... specific person ... ", this
subsection limits decisions to those made " ... in terms of a financial sector law".
[36] The complaints made by the applicant to the PA about his relationship with
Investec, were not made in terms of a "financial sector law'' and the PA therefore
declined to take a decision in respect thereof.
[37] Once there was an absence of a decision by the PA, then section 230 of the
FSRA is not engaged and the FST lacked authority to reconsider any purported
decision.
[38] It follows that the remittal ordered by Sardiwalla J to the FST, would be a
brutum fulmen and, to expect a reconsideration from the FST , would be ultra
vires the enabling statute. For this reason alone, the order given by the court a
quo should not have been granted.
[39] Once the above conclusion has been reached, it illustrates the fallacy of the
applicant's reliance on alleged procedural unfairness. If a decision-making body
lacks jurisdiction to perform a function, then referring the same question back to
such a body would be non-sensical, irrespective of whether there may have been
19
procedural deficiencies in how the question came before or was even handled by
the said body.
[ 40] For the reasons set out above, the appeal should succeed. In view hereof,
it is not necessary for us to decide the plethora of anci11 ary, but non-determinative
issues raised in the papers.
[41] Lastly, we find no reason w hy the customary rule that costs follow the
outcome , should not apply.
Order
[42] Accordingly, the order is as follows:
1. The appeal is upheld, w ith costs, including the costs of two counsel,
where em ployed.
2. The order of the court a quo is replaced with the following:
"The application is dismissed with costs, including the costs of two
counsel, wher e employed".
/ '
AVIS
Judge of the High Court
Gauteng D ivision, Pretoria
I agree
I agree
Date of Hearing: 13 August 2025
Judgment delivered: 1 October 2025
APPEARANCES:
For the Appellant:
Attorney for the Appellant:
For the First Respondent:
Attorney for the First Respondent:
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//'1 NBAM
Kidg~ of the High Court
Gauteng Division, Pretoria
OMOOKI
Judge of the High Court
Gauteng Division, Pretoria
Adv MMajozi
W erksmans Attorneys, Sandton
c/o Mabuela Incorporated, Pretoria
MrMPower
Power Singh Incorporated, Johannesburg
c/o Macintosh Cross & Farquharson,
Pretoria