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[2026] ZAGPJHC 388
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Raspberry Academy (Proprietary) Limited v Oaksure Financial Services (Proprietary) Limited (2025/219635) [2026] ZAGPJHC 388 (14 April 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case Number: 2025-219635
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
In
the matter between:
THE
RASPBERRY ACADEMY (PROPRIETARY) LIMITED
Plaintiff
and
OAKSURE
FINANCIAL SERVICES (PROPRIETARY) LIMITED
Defendant
JUDGMENT
DJ Smit, AJ
Introduction
[1]
Is
a person who is paid commission by a short-term insurance insurer as
a percentage of leads referred to them which result in the
conclusion
of an insurance policy, required to be authorised as a financial
services provider or to be a representative
[1]
of such insurer?
[2]
The Raspberry Academy (Pty) Ltd instituted
action on 17 November 2025 against Oaksure Financial Services (Pty)
Ltd. The Raspberry
Academy claims payment of R1,214,698.62 (plus
interest) for arrear commissions as well as ancillary relief to
obtain documents
and an accounting and a statement and debatement of
account. The claim seeks to enforce what is termed a “Lead
Referral Agreement”
dated 31 May 2019 (Agreement) between the
parties.
[3]
Oaksure
did not defend the action. Thus, the Raspberry Academy applied for
default judgment in terms of Rule 31(5)(a).
[2]
[4]
The application for default judgment came
before me on 11 March 2026. I alerted counsel for The Raspberry
Academy to my concerns
regarding the legality and enforceability of
the Agreement and requested heads of argument on the issue, which
counsel submitted.
In what follows, I explain why the Agreement is
illegal and unenforceable and that default judgment should therefore
be refused.
The Agreement
[5]
The
Agreement commenced on 1 May 2019. Its essence is that The Raspberry
Academy would refer persons (called “Leads”
[3]
in the Agreement) to Oaksure, and would market Oaksure’s
short-term insurance products, including passenger liability
insurance,
to them. Oaksure would pay The Raspberry Academy a
referral fee based on a percentage of Oaksure’s revenue derived
from any
Lead who signs up for Oaksure’s insurance products
after The Raspberry Academy’s referral. This referral fee –
which is on its face a commission – is payable for as long as
the client maintains their policy and pays the premium, regardless
of
whether the Agreement subsists when the premium is paid.
[6]
According to the particulars of claim, it
became apparent through an audit in July 2023 that Oaksure had
underpaid referral fees
to The Raspberry Academy. Until July 2024,
Oaksure paid off certain amounts it had previously underpaid, leaving
the balance claimed
by The Raspberry Academy. According to the heads
of argument, The Raspberry Academy was paid almost R6 million
over the life
of the Agreement, excluding the outstanding referral
fees.
[7]
Neither the Agreement nor the particulars
of claim expressly state whether The Raspberry Academy or Oaksure are
registered financial
services providers or what their status is
within the labyrinth of legislation governing the provision of
financial services –
in particular insurance products –
in South Africa. There are, however, pointers in the Agreement which
justify inferences
in that regard.
[8]
The Agreement states that Oaksure “
is
in the business of providing short term insurance products
”.
It also defines “
Existing Client
”
as a person who “
is an insured
under any insurance policy held by Oaksure
”.
“
Policy
”
is defined as “
a valid short-term
insurance policy concluded between a Lead and Oaksure, and
specifically includes passenger liability insurance
policies”
.
[9]
The Agreement makes it clear that The
Raspberry Academy would only be compensated if, and to the extent –
after its referral
of a Lead to Oaksure – a Lead pays premium
on insurance policies initiated after the referral:
a.
Clause 7 of the Agreement deals with
“
Consideration Payable
”.
It states, among other matters, that:
i.
“
the Referral Fee will be calculated
as a percentage of the value of the Net Premium in respect of active
and paid up Net Policies,
as follows: Referral Fee = Net Premium x
Percentage”;
ii.
“
the Referral Fee shall only be due
to [The Raspberry Academy] once corresponding payments have been
received by Oaksure from the
relevant policy holders”; and
iii.
“
[The Raspberry Academy] shall be
entitled to receipt of the Referral Fee as set out herein in respect
of all Net Policies acquired
by Leads from or through Oaksure, both
during and after the Contract Period, for as long as such Net
Policies are in force and
effect, notwithstanding termination of the
Agreement for any reason whatsoever.”
b.
“
Policy” is defined in the
Agreement as “a valid short-term insurance policy concluded
between a Lead and Oaksure, and
specifically includes passenger
liability insurance policies”.
c.
“
Net Policy” is defined as “a
Policy concluded between a Lead and Oaksure and in respect of which
the 1
st
(first) debit has been paid in full”.
d.
“
Premium” means “the
total amount charged to the Lead in respect of a Net policy,
inclusive of all fees, commissions,
Value Added Tax, SARIA and any
other fee agreed to with the Lead”.
e.
“
Net Premium” means “with
reference to a Policy, the premium payable from time to time by the
insured to the insurer
in respect of such Policy, but excluding any
payments collected by the insurer on behalf of a third party in
respect of third party
products which not [sic] form part of the
Policy”.
[10]
Annexure C to the Agreement, which is the
“
Percentage Schedule
”
determining the referral fees, provides that The Raspberry Academy
would receive 10% of the Net Premium Oaksure receives
on passenger
liability insurance. The Raspberry Academy would also receive 50% of
the statutory commissions Oaksure receives for
“
all
other lines of business insurance
”.
[11]
Thus,
it appears that Oaksure acts as a short-term insurer (which receives
premiums) in respect of passenger liability insurance
and as a broker
(which receives statutory commissions) in respect of other lines of
business insurance.
[4]
[12]
Clause 9.5 of the Agreement also states
that The Raspberry Academy would not perform any functions of, or
represent itself as being,
an insurance intermediary or hold out that
it is mandated by Oaksure to act as such, “
the
intention being that [The Raspberry Academy] shall act as marketing
agent and lead referrer only, for the purposes of effecting
an
introduction between a Lead and Oaksure only
”.
I deal further with this clause below in the context of a discussion
whether The Raspberry Academy in fact provides intermediary
services
under the Agreement, despite this wording to the contrary.
[13]
From
clause 9.5 – as well as from the conspicuous silence in the
particulars of claim – one can infer that The Raspberry
Academy
is neither registered as a financial services provider nor is it a
representative of Oaksure.
[5]
(A
representative, as defined in the FAIS Act, is a person who provides
financial services for or on behalf of a financial services
provider
and under its auspices).
The law
[14]
Section
7 of the FAIS Act provides that a person may only act as a financial
services provider if such person has been authorised
so to act by the
Financial Sector Conduct Authority (FSCA). This is commonly referred
to as being a “
registered
”
or “
authorised
”
FSP. Further, a person may only act as a representative if such
person has been appointed as a representative of an authorised
financial services provider under section 13 of the FAIS Act.
[6]
[15]
The
FAIS Act defines “
financial
services provider
”
as someone (other than a representative) who provides “
advice
”
(as defined) or renders an “
intermediary
service
”
or both and “
financial
services
”
is defined as either of these activities.
[7]
“
Representative
”
in turn is defined as someone –
“
who
renders a financial service to a client for or on behalf of a
financial services provider, in terms of conditions of employment
or
any other mandate, but excludes a person rendering clerical,
technical, administrative, legal, accounting or other service in
a
subsidiary or subordinate capacity, which service –
(a)
does not require judgment on the
part of the latter person; or
(b)
does not lead a client to any specific
transaction in respect of a financial product in response to general
enquiries;”
[16]
In the case of the Agreement, the question
under the FAIS Act is whether the lead referral and marketing
services The Raspberry
Academy provides to Oaksure amount to
rendering an intermediary service, as it does not appear to
constitute “
advice
”.
[17]
The FAIS Act defines “
intermediary
service
” in relevant part as
follows:
“‘
intermediary
service’ means … any act other than the furnishing of
advice, performed by a person for or on behalf of
a client or product
supplier –
(a)
the result of which is that a client
may enter into, offers to enter into or enters into any transaction
in respect of a financial
product with a product supplier; ….”
[18]
In
Tristar
the
Supreme Court of Appeal noted that, in ordinary language an
“
intermediary
”
is one who “
acts
between others; a go-between
”
and the word has a corresponding meaning when used as an adjective.
The FAIS Act assigns its own meaning to the term that
retains that
characteristic. The definition contemplates a person who is
interposed between a “
client
”
(or a group of clients), on the one hand, and a “
product
supplier
”
on the other hand.
[8]
[19]
The defining feature of the definition is
that the act constituting an intermediary service must have resulted
in entering into,
or offering to enter into, or potentially entering
into (“
may
”)
a transaction with a financial product supplier. Thus, it requires a
causal link between the act said to be an intermediary
service and
the (potential) transaction.
[20]
Oaksure
is a “
product
supplier
”
[9]
insofar as it issues short-term insurance policies in respect of
passenger liability insurance – which appears to be the
case
from the Agreement.
[21]
In addition to the FAIS Act, the
Short-Term
Insurance Act, 53 of 1998
may also apply to the relationship between
The Raspberry Academy and Oaksure.
[22]
Section
8
of the
Short-Term Insurance Act prohibits
persons from rendering
“
services
as intermediary in relation to a short-term policy
”
unless (subject to an irrelevant exclusion) such person does so with
the approval of the FSCA. The
Short-Term Insurance Act defines
“
services
as intermediary
”
as bearing the meaning as prescribed in the regulations under that
Act. The regulations
[10]
in
turn defines “
services
as intermediary
”
in relevant part as “
any
act performed by a person … the result of which is that
another person will or does or offers to enter into, vary or
renew a
policy
”.
[23]
Thus, the definition of “
intermediary
services
” under the
Short-Term
Insurance Act also
requires the same causal element, except that the
causation is more emphatic: the act must result in an offer, not only
a potential
offer. Given that the definition under the FAIS Act is
more capacious, I focus on the FAIS Act.
Discussion
[24]
The definition of intermediary services
under the FAIS Act raises the question whether the lead referral and
marketing services
The Raspberry Academy provides to Oaksure amount
to “
any act the result of which is
that a client may enter into, offers to enter into or enters into any
transaction in respect of
” a
short-term insurance policy.
[25]
The clearest indication that the services
The Raspberry Academy provides to Oaksure meet the definition of
intermediary services
is that The Raspberry Academy is
only
remunerated in circumstances where a Lead actually enters into a
transaction in respect of a short-term insurance policy. Put
differently, the services for which The Raspberry Academy are
remunerated are only those which have the causal effect intended by
the definition of intermediary services in its most restrictive
sense.
[26]
If The Raspberry Academy merely supplied
contact details to Oaksure, as its counsel contends, there could have
been a factual debate
about how exactly these contact details were
obtained, and in what context, with what disclosure to the client and
for what purpose.
Depending on the factual answers to these
questions, the answer may have been that mere lead referral
activities did not necessarily
have the result intended by the
definition of “
intermediary
services
” even in its loosest
sense, because merely passing on contact details – even if it
leads to an approach by the Lead
to Oaksure or vice versa –
does not necessarily rise to a situation where the Lead “
may
enter
” into a transaction.
[27]
Thus, the most telling feature of the
Agreement is the basis on which The Raspberry Academy is remunerated.
It is not remunerated
on the basis of a flat fee for each Lead
referred, which may have suggested a mechanical recording of details
and passing them
on to Oaksure. Instead, The Raspberry Academy is
remunerated based on a percentage fee of
successful
referrals: and then The Raspberry Academy has a right to that fee, on
a monthly basis, for the life of the relevant policy.
[28]
In addition to the basis for compensation,
the following provisions of the Agreement show that The Raspberry
Academy engages in
acts “
the
result of which is that”
the Lead
“
may enter into, offers to enter
into or enters into any transaction in respect of a financial
product”
:
a.
The definition of “
Referral
”
in the Agreement makes it clear that there must be a direct causal
link between the referral and the initial contact with
Oaksure:
“
Referral
”
is defined to mean “
any action on
the part of, or under the control, instruction, request or direction
of [The Raspberry Academy], a Lead or any of
[The Raspberry
Academy’s] referred clients, which
directly
results
in any person contacting
Oaksure for the specific purpose of obtaining a quotation or sale in
respect of any Policy with a view
to concluding a Policy
”.
This contemplates acts on the part of The Raspberry Academy which
result in Leads contacting Oaksure to obtain a policy.
b.
Clause 4 of the Agreement provides that
Oaksure appoints The Raspberry Academy “
to
market Oaksure’s short-term insurance products, including
passenger liability insurance, to the Leads
”.
c.
Pursuant to clause 6, The Raspberry Academy
undertook to “
generate Leads of
potential clients for the benefit of Oaksure
”.
It would also “
arrange for the
potential customer’s consent for the referral of his
information to Oaksure
” and
“
inform the potential customer
that Oaksure will contact them … and discuss appropriate
cover
”.
d.
For these purposes, Oaksure would “
provide
[The Raspberry Academy] with marketing assistance reasonably
required
”, according to clause
6.7.1.
[29]
In addition, the lead referral was clearly
not the kind of mechanical activity excluded from the definition of
“
representative
”
in the FAIS Act:
a.
Under the Agreement, The Raspberry Academy
retains a degree of control over the way in which Oaksure deals with
the Leads. Under
clause 6.5, if The Raspberry Academy should
“
specifically request in writing
that a specific product not be offered to the potential client,
Oaksure will comply with this request
to the best of its ability”
.
b.
Also, under clause 6.7.5 Oaksure would
“
notify [The Raspberry Academy] as
soon as possible of any issues, concerns or disputes
”
flowing from the referral.
[30]
It is true that The Raspberry Academy tried
to contract out of being an intermediary by stating that it is not.
Clause 9.5 states
that “
the
intention [is] that [The Raspberry Academy] shall act as marketing
agent and lead referrer only, for the purposes of effecting
an
introduction between a Lead and Oaksure only
”.
The problem is that the stated intention is contradicted by at least
the basis on which The Raspberry Academy is remunerated:
not for
referring leads, but for effecting introductions and marketing that
directly result in transactions.
[31]
For these reasons, I conclude that The
Raspberry Academy is rendering a financial service in the form of an
intermediary service
to Oaksure pursuant to the Agreement. This is
illegal since The Raspberry Academy is neither an authorised
financial services provider
nor a representative of Oaksure.
[32]
In
the context of the regulation of intermediary services, courts have
invariably found that agreements that contravene the relevant
statute
are unenforceable due to their illegality.
[11]
[33]
Thus, the Agreement is unenforceable, and
default judgment cannot be granted.
[34]
There is, incidentally, another reason why
default judgment cannot be granted in the form prayed for. In
addition to a monetary
judgment, The Raspberry Academy claims an
array of ancillary relief to demand documents and an accounting and a
statement and debatement
of account. Rule 31(5)(a) only permits the
grant of default judgment on “
a
debt or liquidated amount
”. The
ancillary relief is not a claim for a debt or a liquidated amount.
Order
[35]
In the result, I make the following order:
a.
The application for default judgment is
dismissed.
b.
There is no order as to costs.
DJ SMIT
ACTING JUDGE OF THE
HIGH COURT
JOHANNESBURG
Date of hearing: 11 March
2026
Date of judgment: 14
April 2026
For
the Plaintiff:
J
Hartman instructed by Pagel Schulenberg
For
the Defendant:
No
appearance
[1]
As
that term is used in the Financial Advisory and Intermediary
Services Act, 37 of 2002 (FAIS Act).
[2]
Which
provides: “(5)(a) Whenever a defendant is in default of
delivery of notice of intention to defend or of a plea, the
plaintiff, who wishes to obtain judgment by default, shall where
each of the claims is for a debt or liquidated demand, file
with the
registrar a written application for judgment against such defendant:
Provided that when a defendant is in default of
delivery of a plea,
the plaintiff shall give such defendant not less than five days’
notice of the intention to apply for
default judgment.”
[3]
“Lead” is defined as “any natural or juristic
person, other than an Existing Client or Engaged Client, who
is
Referred to Oaksure by [
The
Raspberry Academy]
during the Contract period and shall specifically include the TRA
Named Clients.”
[4]
Counsel
for The Raspberry Academy confirmed that Oaksure is a registered
financial services provider under registration number
FSP27343 which
he states is verifiable on the website of the Financial Sector
Conduct Authority.
[5]
Again,
counsel confirmed this in his heads of argument.
[6]
“
7(1)
With effect from a date determined by the Minister by notice in the
Gazette, a person may not act
or offer to act as a –
(a)
financial services provider, unless such person has been issued with
a licence under
section 8; or
(b)
a representative, unless such person has been appointed as a
representative of an
authorised financial services provider under
section 13.”
[7]
“
financial
services provider” means any person, other than a
representative, who as a regular feature of the business of
such
person –
(a)
furnishes advice; or
(b)
furnishes advice and renders any intermediary service; or
(c)
renders an intermediary service;”
[8]
Tristar
Investments (Pty) Ltd v Chemical Industries National Provident Fund
[2013] ZASCA 59
(SCA) (16 May 2013) para 7.
[9]
The
FAIS Act defines “
product
supplier
”
as any person who issues a “
financial
product
”
which is in turn defined to include a long-term or a short-term
insurance contract or policy.
[10]
Regulations
under the
Short-term Insurance Act, 1998
published under GN R1493 in
GG 19495 of 27 November 1998 as amended.
[11]
E.g.
Absa
Insurance Brokers (Pty) Ltd v Luttig
[1997] ZASCA 61
;
1997
(4) SA 229
(SCA);
Afrisure
CC v Watson NO
[2008] ZASCA 89
;
2009 (2) SA 127
(SCA)
;
KGA
Life Ltd v Multisure Corporation (Pty) Ltd
2024
(3) SA 51
(SCA).