IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
1. REPORTABLE: YES
2. OF INTEREST TO OTHE •
3. REVISED
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In the matter between:
PETERSON: KEANAN WENDALL
and
OLD MUTUAL INSURE LIMITED
NICHOLAS DEMPSEY N.O.
FINANCIAL SECTOR CONDUCT AUTHORITY
THE REGISTRAR OF THE FINANCIAL SERVICES
PROVIDERS
Summary :
CASE NO: 2024-0283792
Applicant
First Respondent
Second Respondent
Third Respo ndent
Fourth Respondent
[1] Practice and procedure - incorrect enrolment of non-insolvency
matter in Insolvency Court - Inherent power of Court to overrule
2
Directive: Rules The Dedicated Insolvency Motion Court in the
interests of justice to hear incorrectly enrolled matter of public interest
[2] Administrative law - administrative act by registrar of financial
services providers determining requirements for reappointment of a
debarred person as a financial services representative by notice in
Gazette under authority conferred by section 13(1 )(b) of the Financial
Advisory and Intermediary Services Act, No. 37 of 2002 not an
administrative act or decision subject to review under Promotion of
Administrative Justice Act, No. 3 of 2000 (PAJA)
[3] Administrative law - oversight authority conferred by Financial
Advisory and Intermediary Services Act, No. 37 of 2002 on financial
services providers to confer status of financial services
representatives depends on employer/employee or principal/agent
relationship - oversight authority cannot be extended to
reappointment of debarred financial services representatives without
contractual link to financial services providers - Gazetted
Determination by registrar of financial services providers extending
oversight authority for reappointment of debarred financial services
representatives to financial services providers declared ultra vires
enabling enactment and invalid
[4] Practice and procedure - competent to grant order not specifically
sought under further and/or alternative relief where issues supporting
relief common cause in competing affidavits squarely before Court
JUDGMENT
3
KATZEWAJ:
[1] This matter, which has no semblance of an insolvency or related
component to it, came before me in the recently constituted Insolvency
Court on 5th December 2025. No issue was made in argument of the error
in classification for the Insolvency Roll, and I reserved judgment on the
merits.
[2] It needs to be emphasized that due to the haste of my acting appointment
the previous day to assist with the backlog in the Court, I did not have an
opportunity of reading the Court file prior to the allocation of the matter to
me for summary hearing. The matter was not allocated to me with a
reservation for suitability for hearing in the Insolvency Court, and I was
none the wiser of its mis-enrolment when I called upon the Applicant's
legal representative, Mrs. Sibiya, to give me an overview of the matter.
[3] Once I had been addressed by Mrs. Sibiya, it was clear to me that the
Applicant is contending for a possible unreasonable subordinate
legislative provision blocking his efforts to have his name removed from
the register of debarred financial advisors maintained by the Third
Respondent, to which the Applicant had been committed in 2017 by his
employer at the time, the First Respondent, following a guilty verdict of
misconduct by the Applicant at a disciplinary hearing that had been
convened by the First Respondent.
[4] I also realized from Mrs. Sibiya's submissions that the matter was totally
devoid of any insolvency or related component. This is manifest from the
Notice Of Motion, wherein the Applicant as a debarred financial
representative seeks the following relief:
"1. The Financial Services Conduct Authority (Third Respondent)
and/or The Registrar Of The Financial Services Providers
(Fourth Respondent) uplifts the Applicant's debarment.
4
2. The name of the Applicant be removed from the debarred
representative register.
3. The Applicant is reappointed as a representative, to render
financial service to clients or on behalf of financial service
providers.
4. Costs only against the respondents who may oppose the
application.
5. Further and/or alternative relief"
[5] I was disinclined at the close of Mrs. Sibiya's opening address to raise
the issue of mis-enrolment in the Insolvency Court with her. The cost
incurred by the Applicant in bringing a matter of possible public interest
to the attention of the Court weighed with me, and in the interests of
justice I decided to hear Mr. Sangoni, counsel for the parties who
oppose the application, namely the Third Respondent and the Fourth
Respondent, who confined his submissions to the architecture of the
relevant legislation and the Applicant's non-compliance therewith, but
significantly relied on heads of argument prepared for the Third
Respondent and the Fourth Respondent by his predecessor in the
matter, Mr. L.M. Maite of the Pretoria Bar, which concluded with the
following remarks:
"45. The opposition submitted by the FSCA ["the Third Respondent"]
aims to safeguard the operational integrity of the national
legislation, which exists primarily to protect the unsuspecting
public.
46. The relief sought in the application has extensive implications
that can potentially negate the very purpose of the legislation.
5
47. It was incumbent upon FSCA ["the Third Respondent"] to bring
forth the necessary facts before this Court for a just
determination to be made.
48. It is for this reason that FSCA ["the Third Respondent"] does not
seek any cost order against the applicant.
49. It is accordingly submitted that should applicant be successful
with the order it (sic) seeks; costs should not be awarded as
against the FSCA for reasons already enunciated herein . ... "
[6] Having heard Mr. Sangoni and Mrs. Sibiya in reply, I decided to refrain
from raising the issue of mis-enrolment in the Insolvency Court with them.
I harboured the intent of determining the circumstances whereunder the
Court has inherent jurisdiction in the interests of justice to overrule the
rules providing for the peremptory confinem~nt of insolvency and related
matters to the Insolvency Court.
[7] The source of the creation of the Insolvency Court is the Notice by the
Office Of The Deputy Judge-President, Gauteng Division,
Johannesburg, dated 10th March 2025 regarding the Introduction Of
A Pilot Dedicated Insolvency Court In The Johannesburg High Court
("the Notice') together with its accompanying Directive: Rules For The
Dedicated Insolvency Motion Court (IMC) And The Dedicated
Insolvency Trial Court (ITC) In The Johannesburg High Court,
recorded as having been "Dictated by the Deputy Judge President"
Roland Sutherland ("the Directive: Rules For The Dedicated Insolvency
Motion Court').
[8] The Insolvency Court is a product of "The policy objective ... to give
recognition to the commercial imperative of expedition in this [Insolvency]
field of legal practice by establishing procedures which can afford quick
turnaround lead times within the broad framework of the existing litigation
6
model" (see paragraph 3 of the Notice). The Directive: Rules For The
Dedicated Insolvency Motion Court are meant to give effect to this
policy objective.
[9] The Deputy Judge President derived authority to make the Directive:
Rules For The Dedicated Insolvency Motion Court from section 173 of
the Constitution of the Republic of South Africa Act, No.108 of 1996.
[1 0] The consequence of incorrect enrolment in the Insolvency Court is alluded
to in the caution in paragraph 4 of the Directive: Rules For The
Dedicated Insolvency Motion Court that ''An error in classification by
the attorney risks the case not finding its way to the correct roll and being
struck from the incorrect roll."
[11] The Rules Regulating The Conduct Of The Proceedings Of The
Provincial And Local Divisions Of The High Court Of South Africa
made by the Rules Board for Courts of Law under section 6 of the Rules
Board for Courts of Law Act 1985 (Act 107 of 1985) with the approval of
the Minister of Justice and Constitutional Development, can be relaxed on
good cause shown in terms of Uniform Rule of Court 27(3).
[12] Notwithstanding the peremptory tenor of the Directive: Rules The
Dedicated Insolvency Motion Court, it is the Court's view that by parity
of reasoning they also cannot deprive the superior courts to which they
apply of their inherent jurisdiction to grant relief when insistence upon
exact compliance therewith would result in substantial injustice to a party
or parties.
[13] It will become apparent from the following analysis of the facts and
governing primary legislation and subordinate provisions that the
Applicant is confronted with an insurmountable hurdle in his attempt to
comply with the requirements contained in the subordinate provisions for
having his name removed from the register of debarred financial advisors
7
held by the Third Respondent. It is clear too that the obstruction is the
result of inherent unreasonableness and impossibility of enforcement of
the subordinate provisions for removal of a debarred financial advisor from
the register which are attributable to the provisions themselves and not in
any way to the conduct of the Applicant.
[14] A Court concluding that subordinate provisions are ultra vires is limited to
determining whether the provisions are intra or ultra vires enabling
legislation, which inter alia includes whether the provision accurately
reflects the intention of the enabling enactment.
[15] It is in this spirit that I exercise the Court's inherent jurisdiction to overlook
the mis-enrolment of the matter and to afford it a hearing.
[16] The facts in this matter are detailed but not complex.
[17] On 1st November 2016 the Applicant was employed as a sales consultant
within the vehicle insurance department of the First Respondent, which is
a duly registered financial services provider ("fsp'') in terms of the Financial
Advisory and Intermediary Services Act, Act No.37 of 2002 ("the Act").
[18] On 1st July 2017 the Applicant completed the first level regulation
examination which enabled him to render services under the Act.
[19] On 26th October 2017 the First Respondent convened a disciplinary
hearing under the chairmanship of Mr. J. Dworkin for misconduct relating
to dereliction of duty/dishonesty by the Applicant.
[20] On 30th October 2017 the First Respondent notified the Applicant in writing
that he had been found guilty at the disciplinary hearing of misconduct
constituted by gross dereliction of duty/dishonesty involving failure or
neglect of duty that has or could have serious consequences for the First
Respondent, its employees or other persons, in that he had deviated from
8
the standard of conduct between 31st July and 13th October 2017 on
several client policies by failing to follow correct underwriting guidelines
and in so doing disregarded business rules/practices with an intention of
making a sale.
[21] The material facts/elements relied on by the First Respondent in its finding
in the disciplinary hearing were that in assessing the risk and accurately
determining the premium, the Applicant had captured information
incorrectly which resulted in premium prejudice, the Applicant had
misrepresented and failed to disclose the basic excess applicable to the
various clients, the Applicant had in many cases provided clients with
incorrect premium amounts, and the Applicant had also in many cases
failed to discuss the initiation fee with clients which resulted in the
subsequent cancellation of the policies.
[22] Based on the findings of the disciplinary hearing, the First Respondent
terminated the Applicant's employment.
[23] On 15th November 2017, which was after the Applicant's employment with
the First Respondent had been terminated, the Second Respondent as
the designated Key Individual of the First Respondent delivered a
NOTICE OF DEBARMENT to the Applicant notifying him in terms of
section 14(1) of the Act that as from 31st October 2017 until the date on
which the debarment is lifted he is debarred and that the Financial
Services Board will be informed of his debarment and that his name will
be removed from the First Respondent's (FSP 12) register of
representatives/key individuals and that he is prohibited from providing
any financial services to existing or new clients under the First
Respondent's FSP 12 license in terms of the Act or under the license of
any other financial services provider.
[24] The NOTICE OF DEBARMENT is recorded as having been imposed and
signed by the Second Respondent on 15th November 2017 as the
9
management representative and designated Key Individual of the First
Respondent.
[25] Significantly, the correctness and/or fairness of the debarment of the
Applicant is not challenged by the Applicant. Neither for that matter does
the Applicant directly challenge the fairness and/or reasonableness of the
provisions for reappointment of a debarred representative, which may
have been, and which remains, an option open to him. However, the effect
of this judgment may render his failure to have done so moot.
[26] It needs to be said that the absence of any challenge by the Applicant to
the correctness and/or fairness of his debarment or to the fairness and/or
reasonableness of the provisions for reappointment of a debarred
representative effectively neutralizes Mr. Sangoni's submissions in
argument and Mr. Maite's submission in his heads that the appropriate
remedy for the Applicant is to have resort to review proceedings in terms
of section 6(2) of the Promotion of Administrative Justice Act No. 3 of 2000
("PAJA').
[27] Mr. Sangoni in argument and Mr. Maite in his heads confined their
submissions in this regard to a contention that the only remedy available
to the Applicant against his debarment is to apply for a review and setting
aside of the First Respondent's finding of misconduct by the Applicant at
the disciplinary hearing convened by the First Respondent on 26th October
2017 and its consequential NOTICE OF DEBARMENT of the Applicant.
[28] Without a challenge by the Applicant to the correctness and/or fairness of
his debarment, these submissions are anomalous and flawed, and
moreover unfold to the untenable conclusion that only debarred financial
advisors who succeed in having their debarring set aside by the Court on
review can apply for reappointment as financial advisors and for the lifting
of their debarring.
10
[29] Quite apart from the untenability of the eclipsing of a right of a debarred
representative who accepts the correctness of his/her debarring to apply
for reappointment, the enabling legislation itself, namely section
13(1)(b)(ii) of the Act, as read with its subordinate provisions for
reappointment of debarred representatives (neither of which require a
review and setting aside of the debarment for reappointment as a financial
representative) is a complete riposte to their submissions.
[30] Section 13(1 )(b)(ii) of the Act confers the authority for the subordinate
provisions as follows:
"13. (1) A person may not
(a)
(b) act as a representative of an authorised financial
services provider, unless such person -
(i)
(ii) if debarred as contemplated in section
14, complies with the requirements
determined by the registrar, after
consultation with the Advisory
Committee, by notice in the Gazette, for
the reappointment of a debarred person
as a representative."
[31] The notice in the Gazette, 82 of 2003 under the auspices of the Financial
Services Board in terms of the Act, states that
"I, Jeffrey van Rooyen, Registrar of Financial Services
11
Providers, after consultation with the Advisory Committee on
Financial Services Providers, hereby under section 13(1)(b)(ii)
of the Financial Advisory and Intermediary Services Act, 2002
(Act No. 37 of 2002), determine the requirements for the
reappointment of debarred representatives as set out in the
Schedule."
[32] The relevant portions of the Schedule are extracted as follows:
"Definitions
1. In this Schedule "the Act" means the Financial Advisory and
Intermediary Services Act, 2002 (Act 37 of 2002), any word or
expression to which a meaning has been assigned in the Act
shall have the meaning and, unless the context otherwise
indicates -
"applicant" means a debarred representative who applies to an
authorised financial services provider for reappointment;
"appointing provider" means the authorised financial services
provider who reappoints a debarred representative;
"date of reappointment" in relation to an applicant, means the
date on which the reappointment of a debarred representative is
to take effect;
"debarment date" means the date on which the name of a
debarred representative has been removed from the register
referred to in section 13(3) of the Act;
"debarred representative" means a representative of an
12
authorised financial services provider who has under section
14(1) of the Act been prohibited by the relevant provider to
render any new financial services and whose name has been
removed from the register referred to in section 13(3) of the Act;
"debarring provider'' in relation to an applicant, means the
authorised financial services provider who debarred the
applicant;
"reappointment", in respect of a debarred representative, means
the reappointment of such person as a representative of any
authorised financial services provider (whether being the
provider which debarred such person or not), in order to act in
accordance with the provisions of section 13(1 )(b)(i) of the Act.
Requirements for reappointment of debarred representatives
2. The requirements for the reappointment of a debarred
representative shall be as follows, namely, that the applicant
must be a person who, on the date of reappointment, complies
with the following, which compliance must, where necessary, be
proved by the submission to the appointing provider by the
applicant and, where appropriate, the debarring provider or any
other person, of relevant original substantiating documentation
or certified copies thereof, including affidavits (if any):
(a) At least 12 (twelve) months since the debarment date
must have elapsed ...
(b) all unconcluded business of the applicant as former
representative, referred to in the proviso to section
14(1) of the Act, has been properly concluded;
13
(c) all -
(i) complaints or legal proceedings (if any)
submitted by clients to the applicant or the
debarring provider, or the Om bud or any court
of law; or
(ii) other administrative or legal procedures or
proceedings in terms of the Act or any other
law, arising out of any acts or omissions in
which the applicant was directly or indirectly
involved prior to the debarment date, have
been properly and lawfully resolved or
concluded, as the case may be, and that the
applicant has fully complied with any
decision, determination or court order in
connection therewith, given or issued in
respect of the applicant;
(d) all fit and proper requirements as contemplated in
section 8(1)(a) and (b), read with section 13(2), of the
Act are complied with.
Short title and commencement
3. This determination is called the Determination of Requirements
for Reappointment of Debarred Representatives, 2003, and
comes into operation on the date determined by the Minister
under section 7(1) of the Act."
[33] Section 7(1) of the Act states as follows:
14
"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 financial
services provider unless such person has been issued with a
licence under section 8."
[34] It is common cause that the Determination of Requirements for
Reappointment of Debarred Representatives, 2003 ("the Determination'?
was in operation at the time the Applicant was debarred.
[35] The Applicant's contention in his Founding Affidavit that it is impossible to
implement the requirements for reappointment because no financial
services provider will employ him as a debarred representative is not
denied by any of the respondents. This results in the contention devolving
into an admitted fact in the application. The exchange on the point
between the adversaries in the application is as follows:
"I approach this honourable court as am prejudiced (sic) by the
debarment as I am unable to obtain any employment in the
financial sector. I have attended numerous job interviews, and
some have been successful however, when the verification
process is undertaken and the debarment is confirmed, the job
gets revoked. " Per the Applicant in paragraph 25 of the
Founding Affidavit.
"Some of the aspects mentioned in these paragraphs such as
alleged rehabilitation of the applicant, are factors a reappointing
FSP must consider in order to reappoint the applicant as a
representative. The remainder of the contents of these
paragraphs are noted." Per the Divisional Executive of the
Conduct of Business Supervision Division of the Financial
Sector Conduct Authority in paragraph 72 of the Affidavit
On Behalf Of The Third And Fourth Respondents under the
heading "Ad paragraph 23 to 2711.
15
[36] Section 13 of the Act as read with the Determination schematically clothes
registered financial services providers with the authority to confer status
of financial services representatives on persons in their service as
employee or agent. Fundamental to this authority is the
employer/employee or principal/agent relationship between the provider
and the representative. This is borne out by the following extract from the
judgment of Ponnan, JA in Financial Services Board v Percy George
Edward Barthram And Discovery Life Ltd 2018 (1) SA 139 (SCA) at
paragraph [15] (my underlining):
"[15] Sections 13(2)(a) and (b), as also s 14(1) and (2), are couched
in peremptory terms. Failing compliance with those provisions
the FSP [Financial Services Provider] itself is liable to sanctions.
FAIS [Financial Services Advisory and Intermediary Services
Act 37 of 2002] requires an authorised FSP not just to be
authorised and licenced as such by the Registrar, but also to
exercise oversight in respect of the initial and continuing fitness
of its chosen representatives. The FSP having itself gone
through a vetting process at the hands of the Registrar is
eminently suited to subiect its representatives to a similar initial
vetting and thereafter to exercise oversight in respect of them.
The Registrar would only get to learn of a representative's
employment or appointment by an FSP in consequence of the
updating of the FSB's [Financial Services Board's] central
register by such FSP pursuant to s13(5). A debarment of a
representative in terms of s 14(1) is complete when the FSP has
withdrawn the representative's authority to act on its behalf and
has removed such person's name from its own register in terms
of s 13(3). Moreover, the Registrar only gets to learn of a
representative's debarment, after the event, on being informed
of such by the FSP in terms of s 14(3). Upon removal of the
representative's name from the FSP's register, the FSB's central
register is correspondingly updated."
16
[37] The key words in the above extract are "fitness of its chosen
representatives", which confirm that the authority conferred on a financial
services provider to exercise oversight over the appointment of a financial
services representative rests on the farmer's extant employer/employee
or principal/agent relationship with the latter, which does not exist in the
case of a debarred representative seeking reappointment.
[38] To this extent at least the provisions in the Determination conferring
continued oversight authority on the financial services provider in the
reappointment of a debarred financial services representative are
impossible to fulfil and must accordingly be regarded as falling outside the
intention of the Legislature in the enabling legislation in section 13(1 )(b)(ii)
of the Act.
[39] Due to the central role attributed to the financial services provider in the
reappointment process envisaged in the Determination, it is impossible to
sever any portion of the Determination without eclipsing its efficacy, which
renders the entire Determination ultra vires the power conferred by the
enabling legislation.
[40] It is however clear that by enacting section 13(1)(b) (ii) of the Act, the
Legislature intended conferring exclusive authority on an extra-curial body
to deal with applications for reappointment of debarred representatives,
which ousts the jurisdiction of the Court to play any role in the
reappointment process.
[41] Mrs. Sibiya's submission to the contrary, namely that the Court is vested
with a discretion to grant the relief sought in the Notice Of Motion (set out
in paragraph [4] above) similar to the Court's discretion to re-enrol struck
attorneys, ignores the basis for the latter discretion expressly conferred
on the Court under section19(1) of the Attorneys Act No. 53 of 1979
(repealed by the Legal Practice Act No. 28 of 2014 on 1st November 2018)
to readmit a practitioner, which included practitioners who had been struck
17
off the roll or suspended from practice by the Court under the Attorneys
Act.
[42] No such authority, express or implied, is conferred on the Court by the Act
in casu.
[43] Logically under the Act, in line with the intention of the Legislature only a
panel appointed by the Fourth Respondent in consultation with the
Advisory Committee on Financial Services Providers can conceivably fill
the role of arbiter on the fitness of a debarred representative for
reappointment.
[44] I have already pointed out that the panel earmarked in the Determination
by the Fourth Respondent, namely the appointing financial services
provider, is ill-suited to the foreshadowed role, which renders the
Determination unworkable.
[45] Although not suggested as an issue for review under PAJA by Mr. Sangoni
in argument or by Mr. Maite in his heads, the Court in coming to its
decision needs to consider whether the creation of the Determination
constituted an administrative action and decision as envisaged by section
1 of PAJA subject to review thereunder by the Court.
[46] The Court's view in this regard is that notwithstanding that the creation of
the Determination constituted an administrative act by the Fourth
Respondent under the Act, it was not an administrative action and
decision as envisaged by section 1 of PAJA qualifying for review under
PAJA by the Court. This is self-evident from the definitions of
administrative action and decision in section 1 of PAJA.
[47] Had the Applicant's approach in this matter been that the Determination
is unfair and an unreasonable obstacle to his application for
reappointment as a debarred financial services representative, his formal
18
remedy would have been to seek the striking down of the Determination
as ultra vires the enabling legislation for that reason. The fact that he has
not done so leaves the issue outside of the Court's scope of consideration
in form only - in content the issue is squarely before the Court.
[48] Turning to the Court's power to pronounce upon the validity of the
Determination without this relief being specifically sought in the Notice Of
Motion, the registrar as contemplated in section 13( 1 )(b )(ii) of the Act is
before the Court as the Fourth Respondent, has opposed the application
and is represented by counsel.
[49] Moreover, the impossibility of implementation of the Determination is
common cause between the competing parties in the application,
including the Fourth Respondent.
[50] The Court accordingly finds that it is competent to mero motu make the
following finding and order under the prayer in the Notice Of Motion for
"Further and/or alternative relief' :The provisions labelled by the Fourth
Respondent Determination of Requirements for Reappointment of
Debarred Representatives, 2003 under the authority conferred on him in
section 13( 1 )(b )(ii) of the Act, are ultra vi res and invalid.
[51] As far as costs are concerned, the Court is guided by both Mr. Sangoni's
submission in argument and Mr. Maite's submission of public importance
of the matter in his heads extracted in paragraph [5] above and agrees
with both that none of the competing parties should be mulcted in costs.
The following is accordingly ordered:
1. The relief sought in prayers 1, 2, 3 and 4 of the Notice of Motion is
dismissed.
2. The Determination of Requirements for Reappointment of
Debarred Representatives, 2003 as per the notice in the Gazette,
19
82 of 2003 under the auspices of the Financial Services Board as
represented by the Fourth Respondent is declared ultra vires
section 13(1 )(b)(ii) of the Financial Advisory and Intermediary
Services Act, No. 37 of 2002 and invalid.
3. The Order in paragraph 2 above is suspended until 1st December
2026 to allow the competent authority to correct the defect.
Delivered: This judgment was prepared and authored by the Judge whose
name is reflected and is handed down electronically by circulation
to the parties/their legal representatives by email and by
uploading it to the electronic file of this matter on CaseLines. The
date for hand-down is deemed to be on 8 May 2026.
APPEARANCES:
ON BEHALF OF APPLICANT:
ON BEHALF OF THIRD AND
FOURTH RESPONDENT :
Date of Hearing:
Date of Judgment:
) SM KATZEW
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
Mrs. Sibiya
Instructed by Moja-Sibiya INC.
E-mail: dinah@mojasibiyaattorneys.co.za
Mr. Sangoni
Instructed by Seanego Attorneys INC.
E-mail: aphiwe@seanego.co.za
5th December 2025
8th May 2025