Financial Services Regulatory Authority v Swaziland Employee Benefits Consultants and Another (1692 of 2016) [2019] SZHC 102 (13 June 2019)

IN THE HIGH COURT OF ESWATINI

^{HELD AT MBABANE} CASE NO. 1692/2016

_{In the matter between:}

has taken an irregular step. The appellant objects to the rule 30 application on the basis that it ii inappropriate regard being

had to the contention or cause. complaint set out therein. Counsel for the Applicant, Mr Z. S6le, submitted that the nature of the point traken is not one which whatever its merits, renders the notice of appeal an irregular proceeding or step on a proper application of the rule as to irregular proceedings under the Rules of the High Court.

[4] Appearing for the first respondent, Ms van der Walt on the other hand relied on the South African case of Druggists Ltd v Beecham Group 1987 (4) SA 876 (T) as persuasive authority in support of her submission that the Rule 30 (1) procedure is permissible in that the filing of a Notice of Appeal constitutes a step which is susceptible to setting aside in terms of the Rule - our rule being materially similar in wording to the South African rules of civil procedure in that country's High Court. Indeed I accept that such a situation is conceivable as circumstances may arise whter the content or circumstances pertaining to the issuing of a Notice of Appeal may render it 'defective' and thus an irregular process. But that is as far as any persuasive value of the Druggists case goes. I do not agree that however that the Rule 30 procedure may be invoked to raise the lack of locus standi as a ground for setting aside a Notice of Appeal on the basis that it is an irregular step or proceedings. Instead I incline towards the position adopted in another South African case of De Polo v Dreyer 1989 (4) SA 1059 (W) that iri such instances the Rule 30 procedure is inappropriate by reason of the fact that by its nature the objection raises an issue of substance rather than form or procedure. It is not, as suggested by the learned authors Herbstein and van Winsen the sort of defect in the proceedings or step 'that hinders the development of the suit as a whole' 1.

[5] ^{For these reasons it is my judgment that the taking of a point} on locus standi may be done not by way of a Rule 30 ( 1) notice but as a preliminary objection on a point of law (in limine) in the main application as the first respondent has done in the alternative application. AccordinglyI propose to deal with the issue as a point in limine.

LOCUSSTAND!

[6] The crisp issue presenting for determination in the preliminary application is this - whether the FSRA has a right of appeal against a decision of the FSRA-AppealsTribunal. The issue

1 See Herbstein and van Winsen, The Civil Practice of the Courts of South Africa, JUTA. STH Ed., at page 740.

concerns the interpretation to be given to the provisions of

Section 80 (4) of the Financial Services Regulatory Authority Act which section enables 'a.p.on' or a 'financial service provider'

(FSP)recourse on appeal tothis court to challenge decisions of the Appeals Tribunal of the authority.

[7] Section 80 of the FSRA Act outlines the appeals mechanism availing interested parties as designated in the provision on whom a right of appeal is conferred against decision of specified entities where disputes arise. For purposes of affording context to the relevant subsection key to this ruling, I think it is necessary to quote the entire section. It provides as follows:

"Appeals

( 1) A person who is aggrieved by a decision of an authorised financial services may, within thirty (30) days after the decision appeal to the authority.

(2) A person who is aggrieved by the decision of the Authority may within thirty (30) days aft.er that person is notified of the decision appeal to the Appeals Tribunal

(3) An authorised financial services provider who is aggrieved by-

(a) the decision of the Authority to withdraw; cancel, suspend or revoke a licence or registration under this Act may, within 21 days after the withdrawal, cancellation, suspension or revocation, appeal to the Appeals Tribunal; or

(b) any written directive of the Authority may within thirty days (30) days of the date of the directive of the Authority, appeal to the Appeals Tribunal.

(4) A person or an authorised financial services provider who is aggrieved by a decision of the Appeals Tribunal may, within thirty (30) days after that person or authorised financial services provider is notified of the decision, appeal to the Court.'

[8] By reason of the fact.that the issue before this court turns on the proper interpretation of provisions of the FSRA Act, some consideration of tg~4rtinent statutory arrangements would be useful. :'-

The Scheme of the Act

[9] The Financial ServicesRegulatory Authority is established as a regulatory body under the Financial Services Regulatory

^{Authority Act (Act No. 2) or 2010. It is created with a mandate}

to regulate and supervise the non-banking financial services

industry generally but specifically the market conduct of the financial services providers over a range of market-related issues. To carry out this function it is clothed with an array of powers including enforcement measures aimed at curbing

errant conduct and elicit compliance of financial services providers in their operations in this country -such measures embracing disciplinary and punitive sanctions within the Authorities supervisory remit. Keyamongst the functions of the authority is the protection consumers and or clients of financial services providers.

(10] In terms of section 79 the Act also creates the FSRAAppeals tribunal (the Appeals Tribunal) whose function is to 'consider appeals made under the Act'. Section 80 makes provision for the appeals mechanisms and defines the conditions circumstances as well as procedures for the bringing and determination of appeals brought under the section.

[11) It is important to note that within this 'appeals' framework prescribed by the section, the act designates the High Court as the final arbiter in the adjudication of appeals brought in terms of the Act2. I intend to return to significance of this observation later in this ruling.

(12] It is common cause that the first respondent (SEBC)is 'an authorised financial services provider' as defined in the act, denoting a licenced non-financial services provider or intermediary involved in the provision of defined non-banking financial services within the pensions and retirement funds sector.

(13) Section 80 envisages 'a person' as one of the entities that may bring an appeal in specified instances in terms of the act. However'person' is not a term specifically defined in the act. For purposes presently, regard must be had to the generic legal

2 See Section 80 (4) as read with section 2 (the interpretation section) which defines 'Court' as the High

Court of Swaziland (eSwatini).

5

meaning attached to the term 'a person' which includes· · reference to both 'natural' or 'artificial or legal personality. Tha,1 definition how1 ver has limitations to the enquiry before u hence it is no eful. We must look elsewhere as to its intende meaning.

[14] It was suggested by the first respondents Counsel that the act implicitly distinguishes 'the Authority' from persons and financial services providers where such reference is intendeds. In the same vein it was further submitted, as goes the argument, that the FSRAActwhere it eschews express reference or mention of the Authority, it must be concluded that it deliberately excludes the authority from the class of persons specifically mentioned in a provision. Consequently it was contended hat the authority is excluded from the reference or designation of a person regard being had to Section 80 as a whole as a matter of logic.

[15] Thus Counsel for the first respondent argued it would be absurd to interpret the relevant section (as read with the Act) in such a way as to include the Authority within the statutory reference to

'a person' in the context of the provision for conduct of appeals

under the section. Thus it was contended that the authority is neither a 'person' nor 'an authorised services provider' to qualify

it as an entity with a right of appeal as contemplated by Section

80(4) of the Act. Mr Jele on the other hand urged strongly that there is no logical or rational basis for suggesting that the

appellant should be excluded from the reference to 'a person' in

the section on account of the fact that as pertains to the appeals process before the Tribunal the appellant is an ordinary litigant

who is equally entitled to challenge the outcome of the appeal in

the same way as any other litigant would be.

Interpretation Principles

[ 16] In this jurisdiction the courts have tended to adhere to the so• called 'golden rule' of statutory interpretation, albeit adapted to the current constitutional and modern era .. Its essence is encapsulated in the recent South Africanjudgment of CoolIdeas

1186 CC v Hubbard and Ano. 2014 (4) SA 474 (CC)at para 28

as follows:

« A fundamental tenet of statutory interpretation is that the words in a statute must be given their ordinary grammatical meaning, ujless to so so wouild result in an

3 The Latin maxim 'expresso uni us exdusio alterus" (the mention of one thing excludes the other) was invoked in support of the proposition that if Parliament had intended to include reference to the authorities as one of the entities mentioned in Section 80 (4) of the Act, then it would have said so in clear specific terms.

abeurditu. There three important interrelated riders lo this ge~~ral principle, namely: . :..

,t (tijthat statutory provisions should always be interpreted purposively;

(bJ the relevant statutory provisions must be contextualised; and

(c) all statutes must be construed consistently with the constitution, that is where reasonably possible, legislative provisions ought to be interpreted to preserve their constitutional validity. This proviso is closely related to the purposive approach referred to in (a)"

[17] I was also referred to the equally pertinent dictum of Wallis J A in another South African case of Natal Joint Municipality Pension Fund v Endumeni Municipality 2012 ($) SA 593 SCA, which elaborates on the above principle in the followingwords:

"Interpretation is the process of attributing meaning to words used on a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible, each possibility must be weighed in the light of these factors. The process is objective not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used.

To do so in regard to a statute or statutory instruments is to cross the divide between interpretation and legislation the inevitable point of departure is the language of the provision itself, read in context and having regard to the

purpose of the provision and the background to the

~ preparation and production of the document"

1~·

[18] -N. ated earlier in my mind the use of the wor-dsia person' in the run of the mill does not on its own present and difficulty in regard to its ordinary and legal connotations as embracing both natural and artificial or corporate (legal) personality. Its ambiguity arises in so far as there may admittedly be another meaning to it in the context of the phrase as used in the section suggesting as the appellant would have it, that it may be construed to include reference also to the authority as, so contends Mr Jele, it was a litigant or a party in the appeal before the tribunal from which this appeal arises.

[ 19] It is in that regard where the utility of the second aspect of the principles of interpretation - taking the contextual and purposive considerations into account- comes into play in construing the words 'a person' to accord with the most sensible meaning in a manner that gives it's a 'businesslike' efficacy.

Purposive Contextual Approach

[20] In keeping with the purposive and contextual approach Ms Van der Walt invited us to seek to discern what connotation the word carries in the context of the entire section and the various specificallyidentified legal entitiesreferred to in it.

[21] Starting from Section 80 (1) and going through to subsection 3 it makes for logical reading that the phrase 'a person' thus far cannot include the appellant or 'Authority' in the sense of the executive organ of the organisation or the Officeof the Registrar as, where such reference is intended 'the authority" is consistently, directly and explicitly identified by name. There is thus no doubt that in the logic of the provisions of the section and its scheme it suggests a sequential progression of disputes within the framework of the section. It seems to me following this reasoning that the legislature would have been mindful of a need to create yet another tier after the appeals tribunal for further adjudication to this Court from the decision of the Appeals Tribunal emanating from challenges by aggrieved parties against decisions of either financial service providers or those of the authority through the various levels prescribed in the subsections. Following this approach it appears that this Court becomes the ultimate authority over the same lis to which consumers or clients of FSP's and or the FSP's themselves would resort.

(22] That to me appears to be the most logical and sensible construction taken within the context and purpose suggested by

[30) In terms of the institutional arrangements the Registrar of the FSRA has a complimentary relationship as opposed to an adversarial one in relatio~ to_ JB~frihu,pal in the sense adve:t~d as per the learned Wallis JA;;,rudgment. In that regard it is suggested that permitting the Registar to challenge the correctness of the Tribunal would mean the Registrar is undermining the due process of the appeals process.

[31)	It was suggested	by Mr Jele that the Tribunal on account of its
	being established	as an independent entity in relation to the

office of the Registrar, and regard being had to the fact that the

Registrar made representations before the Tribunal to rebut the appeal mounted by SEBS that was an indicator of its position as a party in the appeals proceedings. This calls for an examination of the role of the Appeals Tribunal within the scheme of the Act. As stated earlier in the judgment is established as an independent and specially constituted body. I understand its independence in the sense of it being an impartial appeals organ whose role is to 'reconsider' decisions of the Registrar and also that it is autonomous, functionally separate from and not embedded in the regulatory or executive function of the FSRA. That does not mean that it is in an adversarial relationship with the Registrar's function. Its function is to consider and examine the correctness of the Registrars decisions based on the information before him and to decide 'what decision the Registrar should have made' if to borrow the analogy from the dictum in Pension Fund opinion. As the learned Wallis JA put it at paragraph 23 of that judgment:

"Once the appeals Board has spoken, either the Registrar's decision stands, because it has been confirmed, or it is substituted by the Appeals Board's decision"

[32] I think the same can be said of the decision of the Tribunal in casu. I am· in full agreement with the reasoning that the Tribunal does not direct the Registrar to act but seeks to give effect to its own order and reverse the outcome of the Registrar's decision where so minded not to confirm but correct the Registrar's call. To hold otherwise would undermine the statutory equilibrium between the Tribunal and the Registrar's office.

[33] I must now come to the alternative argument advanced by the Appellants counsel deriving from their reading of the Pensions Funds ratio specifically in so far as reliance is sought to be had to paragraphs 14 and 15 of the judgment in support of the proposition that the said section 80 should be construed as to embrace the appellants right to appeal against the Tribunals

decision in certain exceptional circumsances. It was contended this is so where the au _.;ority seeks to vindicate, protect and defend:

(a) its own peculiar or special interest and authority as a regulator; and or

(b) the public interests.

[34] Adverting to th ecase of Giant Concerts CC v Ronaldo Investments (2012) ZA CC 28, the appellant sought to forcefully bring to bear the argument that the circumstances of this matter lend themselves to the application of the exceptional interests in recognising the Authority's locus standi to invoke the section 80 procedure. I must disagree. In my own reading of the excerpts in the courts judgment relied on I do not see how they can be used in support of so broad a proposition if at all. On the contrary it does anything but lend support to the Appellant's assertion of locus star.i.dito bring an appeal under the statutory provision in consideration. A careful reading of the cited paragraphs and in fullness of the judgment by the learned WallisJA in fact shows that the court dismissed the notion that the Registrar in that case had locus standi on the grounds either of her own perculiar interest or the public interest in general in so far as it relates to a right of appeal from a decion of the statutory appeals body of the regulatory institution.

[35] The followingremarks in the said paragraph 14 of the Pension Fund judgment are instructive if not illustrative of the courts clear veiw of the issue:

"In Giant Concerts 'the Constitutional Court held that whilst this might not require the same sufficient, personal and direct interest at common law, it still required that the litigant must show that the contested legal decision directly affects their rights or interests, or potential rights or interests. But the Registrar's rights and interest. actual or potential, are not affected by the Appeal's Board's decision. She has no interest in the Fund other than as regulator and this case raises no regulatory concerns"

[36] Coming to the facts of this case it was further argued by Mr Jele that the FSRA has a right, nay obligation to protect and vindicate its regulatory concerns- namely its ability to properly and adequately regulate entities under its supervision. In so far as it is suggested by this proposition that the decision of the Tribunal is repugnant or curtails the FSRAregulatory remit, I must say I fail to see how this could possibly be. All the FSRA has done is interpose its opinion and thus pronounce on the correctness of the FSRAdecision. It the legality of the Tribunal's

decision is in question and it is suggested it has exceeded its S-

mandate or statutory powers that is a different matter that ~:

_{migh~ entail a c~~ge on r~view in the sense suggested in the """~•}

^{Pension Fund cfil:~~- defendmg the lawfulness of the FSRA "'~}

decision to the extent it is suggested its regulatory function is being 'hindered'.

[37] Regarding the public interest argument I find this akin to the very argument advanced in the Pension Fund case the effect of which was to urge the court in that case to consider that the registrars regulatory function and its interest that the correctness of her decisions be maintained and vindicated. The court rejected that argument and its premise for the reason that the court was of the opinion that the existence of the appeals board in that scenario presupposed a legislative intent and design that 'the decions of the Fegistrar might be incorrect, and there needed to be a mechanism to challenge and correct such decisions. To quote Wallis JA at paragraph 16:

"The view Jo the legislature was that when an appeal against a decision of the Registrar succeeds, the Registrar is wrong and the Appeal Board right, or expressed more charitably, as between the Appeal Board and the Registrar the AppealBoard's decision is to be taken as correct".

[38] There, lies I believe the nub of the relational arrangement between the two organs of the FSRA. As between the Authority and the Appeals Tribunal the latters decision is final and ought not be gainsaid, save as the court in Pension Fund held, in situations where the legality of the decision of the Appeals Tribunal is sought to be impugned.

[39] Finally the Appellant's attorney placed some capital on the case of Pepcor Retirement Fund and Another v Financial Services Board and Ano [2002] ZASCA 198; 2003 (6) SA 38 (SCA) [2003]

3 All SA 21 (SCA)at para 13 as succour for its stance that the appellant has locus standi in terms of the section under consideration. In that case the Registrar sought to review her own decision granted or made on the basis of what turned out in due course to have been erroneous or misleading information.

(40] The court in the Pepcor case held that the Registrar had locus standi to review her own decision granting a certificate in light of the emergence of correct information in the public interest.

I think the case is indeed illustrative of a right of review in the public interest in light of a glaring illegality or irregularity coming to light which shoult stand aside as the court in the Pension Fund case regarded as one of the permissible exceptions

to enable the, court to remedy the situation. It is, with resp~t thus distinguishable from what the appellant seeks as - a statutory r r• edy , provided under the Act. What peroei , interest tli _.: RA seeks to vindicate is on the principles in t. e Pension Fund case not justiciable on the basis of the appeals procedure on grounds of correctness or otherwise of the Tribunal's decision. That is not the nature of interest that was sought to be vindicated in the Pepcor case+.

DISPOSITION

It is my considered viewthat the ground on which the assertion of locus standi by the FSRAto appeal against the decisions of the Appeal Board is with respect without support nor is its interpretation of Section 80 (4).

For that reason I have come to the considered conclusion that the FSRA lacks the locus standi to bring an appeal under the section relied on and that for that reason the first respondents point in limine must succeed. The appeal is accordingly dismissed.

JUDGEOF THE HIGH COURT Appearances:

For the Appellant: Mr Z Jele

Messrs Robinson Bertram Attorneys

For the First Respondent: Ms M. van Der Walt

(instructed by Messrs Henwood& Company)

4 See para 22 of the Pension Fund judgment In that case the court observed that the Registrar was seeking to vindicate the public interest by way of review ln regard to a glaring or patent irregularity. To follow the interest has to be defined in reference to the purpose behind the statutory powers and object of the appeals process under sections 79 and 00 of the FSRA Act, which Is to enable persons affected by the Registrars decisions an appeals process against decisions of the Authority culminating in recourse to the Courtas a last resort