REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPOR TA BLE: YES
(2) O F INT ERES T TO OTHER JU DGES: YES
(3) RE VISED : YES
DA TE 04 Novembe r 2025
In the matter between:
THE FINANCIAL SECTOR CONDUCT AUTHORITY
and
THE FINANCIAL SERVICES TRIBUNAL
LOUIS HARMS N.O.
JAY PEMA N.O.
MICHELLE LE ROUX N.O.
VICEROY RESEARCH PARTNERSHIP LLC
FRASER JOHN PERRING
AIDEN LAU
GABRIEL BERNARDE
Case Number: 009838/2023
Applicant
First Respondent
S econd Res pondent
Third Res pondent
Fourth Res pondent
Fifth Res pondent
Sixth Respondent
Seven th Res pondent
E ighth Res pondent
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JUDGMENT
JANSE VAN NIEUWENHUIZEN J:
[1] The fifth to eight respondents ( “the respondents”) apply for leave to appeal
against the findings and orders in paragraphs 1, 2 and 3 of the judgment delivered by
this court on 9 July 2025 . The application is brought in terms of section 17(1)(a)(i) of
the Superiors Courts Act, 10 of 2023, i.e that the appeal would have a reasonable
prospect of success.
[2] The applicant opposes the application and filed a conditional leave to cross -
appeal against paragraph 4 of the judgment.
Grounds for leave to appeal
[3] The respondents’ grounds of appeal may be summarised as follows:
3.1 the court erred in developing the common law position in accordance
with prayer 3.3 of the applicant’s notice of motion, more particularly in
that it is not in the interests of justice nor a permissible development of
the common law;
3.2 the court erred in conflating procedural law and more particularly service
of process with the substantive law of jurisdiction and in not finding that
on no basis does the Tribunal have the jurisdiction to impose an
administrative penalty in terms of section 167 of the Financial Sector
Regulation Act 9 of 2017 (“the Act”) on a peregrinus.
[4] At the inception of the hearing I enquired from Mr Subel SC, counsel for the
respondents, whether the development of the common law is a compelling reason to
grant leave to appeal in terms of section 17(1)(a)(ii). Mr Subel readily agreed and did
not address the court any further in respect of the grounds relied upon by the
respondents in support of their application for leave to appeal.
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Applicant’s submissions
[5] Mr Breitenbach SC, counsel for the applicant, did not agree and contended that
the respondents are bound by the grounds for leave to appeal contained in their
application.
[6] Mr Breitenbach was of the view that the grounds do not have reasonable
prospect of success and submitted that in developing the common law in terms of
section 173 of the Constitution the court exercised a discretion in “the strong sense”.
In the result, the court’s finding will only be found to be wrong in certain defined
circumstances.
[7] In support of the aforesaid contention Mr Breitenbach relied on the authority of
Mwelase v Director General, Department of Rural Development and Land Reform and
Another 2019 (6) SA 597 (CC) at para [68]:
“[68] A 'true discretion' or 'discretion in the strong sense' is a power entrusted to a court
to consider a wide range of available options, each of which is equally permissible.
The court then has a choice as to which option it selects. And its pick can b e said to
be wrong only if it has failed to exercise that power judicially or has been influenced by
wrong principles or a misdirection on the facts, or reached a decision that could not
reasonably have been made by a court properly directing itself to all the relevant facts
and principles.”
[8] Mr Breitenbach submitted that the respondents failed to point to any of the
grounds mentioned in Mwalase in support of the ground of appeal in paragraph 3.1
supra. Insofar as the ground of appeal in paragraph 3.2 is concerned, the applicant
contends that the court adapted and applied the principle in Bid Holdings Pty Ltd v
Strang and Others 2008 (3) SA 355 (SCA) and in so doing developed the common
law to introduce a second requirement for jurisdiction over peregrinus for purposes of
penalties imposed in terms of section 167(1)(a) of the Act.
Respondents’ submissions in reply
[9] In reply, Mr Subel SC, raised several grounds of appeal that were not contained
[9] In reply, Mr Subel SC, raised several grounds of appeal that were not contained
in the application which, according to him, do have a reasonable prospect of success.
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[10] Mr Breitenbach objected to the new grounds being introduced during oral
argument and contended that it is impermissible to do so. In this regard Mr Breitenbach
relied on p 620D in Fischer and Another v Ramahlele and Others 2014 (4) SA 614
(SCA):
“[13] Turning then to the nature of civil litigation in our adversarial system, it is for the
parties, either in the pleadings or affidavits (which serve the function of both pleadings
and evidence), to set out and define the nature of their dispute, and i t is for the court
to adjudicate upon those issues.”
Discussion
[11] The test for granting leave to appeal in terms of section 17(1)(a)(i) has been
succinctly set out by the Supreme Court of Appeal in MEC for Health, Eastern Cape v
Mkhitha and another [2016] ZASCA 176, to wit:
“[17] An applicant for leave to appeal must convince the court on proper grounds
that there is a reasonable prospect or realistic chance of success on appeal. A mere
possibility of success, an arguable case or one that is not hopeless, is not enough.
There must be a sound, rational basis to conclude that there is a reasonable prospect
of success on appeal.”
[12] Having regard to the respondents’ grounds for leave to appeal, I am of the view
that, although the grounds might be arguable, the grounds do not meet the threshold
set out Mkhitha.
[13] In the premises, the application stands to be dismissed, costs to follow the
cause.
ORDER
I grant the following order:
1. The application is dismissed.
2. The fifth to eight respondents are ordered to pay the costs, including the costs of
two counsel. Counsel’s fees on scale C.
DATE HEARD:
17 September 2025
DATE DELIVERED:
4 November 2025
APPEARANCES
N. JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Counse l for the Applicant: Adv Breitenbach SC
Adv Mbikiw a
Instructed by:
Counse l for the fifth
to eight respondents:
Instructed by:
Ch uene Mah le Inc.
Adv Subel SC
Sna id & Morris
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