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[2005] ZAGPHC 126
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Platinum Asset Management (Pty) Ltd v Financial Services Board and Others , Anglo Rand Capital House (Pty) Ltd and Others v Financial Services Board and Others (2004/3081, 2004/6260) [2005] ZAGPHC 126; 2006 (4) SA 73 (W) (5 December 2005)
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IN THE HIGH COURT OF SOUTH AFRICA
(WITWATERSRAND LOCAL DIVISION) Case No: 2004/3081 In the matter between: PLATINUM ASSET MANAGEMENT (PTY) LTD Applicant And FINANCIAL SERVICES BOARD First Respondent MINISTER OF FINANCE Second Respondent JOANNE VAN ZYL Third Respondent MOAZAM ALI FAKEY Fourth Respondent ANTHONY J H A FERREIRA Fifth Respondent MARTIN DZVITI Sixth Respondent JEFFEREY VAN ROOYEN Seventh Respondent INSPECTORATE OF FINANCIAL INSTITUTIONS Eighth Respondent And REGISTRAR OF MEDICAL SCHEMES First Amicus Curiae REGISTRAR OF BANKS Second Amicus Curiae
Case No: 2004/6260
In the matter between:
ANGLO RAND CAPITAL HOUSE (PTY) LTD First Applicant NEIL ANDREW OOSTERLAAK Second Applicant JOHANNES JACOBUS STOFBERG Third Applicant And FINANCIAL SERVICES BOARD First Respondent INSPECTORATE OF FINANCIAL INSTITUTIONS Second Respondent JOANNE VAN ZYL Third Respondent MOAZAM ALI FAKEY Fourth Respondent ANTHONY J H A FERREIRA Fifth Respondent MINISTER OF FINANCE Sixth Respondent JUDGMENT
Jajbhay J
INTRODUCTION
[1]
The right to privacy and the power of the State to search and seize have been the subject of debate in almost every democratic country where fundamental freedoms are guaranteed. History takes us back to Semayne’s case decided in 1603 (5 Coke’s Rep. 91 a) (77 Eng. Rep. 194) (KB) where it was laid down that “Every man’s house is his castle”. One of the most forceful expressions of the above maxim was that of William Pitt in the British parliament in 1763. He said: “the poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter, the rain may enter- but the King of England cannot enter- all his force dare not cross the threshold of the ruined tenement”.
[2] In order to make sense for Constitutional law out of the smorgasbord of philosophy, sociology, religion and history upon which our understanding of humanity subsists, we must turn from absolute propositions and dichotomies so as to place each allegedly protected act and each illegitimate intrusion, in a social context related to the Constitution’s test and structure. The exclusion of illegitimate intrusions into privacy depends on the nature of the right being asserted and the way in which it is brought into play; it is at this point that context becomes crucial, to inform substantive judgment. If these factors are relevant for defining the right to privacy, then they are also relevant whenever there is an invasion of that right by way of searches and seizures at the instance of the State.
[3]
In Bernstein v Bester NO [1996] ZACC 2; 1996 (2) SA 751 (CC) at para 67, the following pronouncement was made: ‘The truism that no right is to be considered absolute implies that from the outset of interpretation each right is always already
limited by every other right accruing to another citizen. In the context of privacy this would mean that it is only the inner sanctum
of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights
of the community. This implies that community rights and the rights of fellow members place a corresponding obligation on a citizen,
thereby shaping the abstract notion of individualism towards identifying a concrete member of civil society. Privacy is acknowledged
in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction,
the scope of personal space shrinks accordingly.’
[4] From this it follows that: ‘... privacy is a right which becomes more intense the closer it moves to the intimate personal sphere of the life of human beings, and less intense as it moves away from that core. This understanding of the right flows, as was said in Bernstein, from the value placed on human dignity by the Constitution. Juristic persons are not the bearers of human dignity. Their privacy rights, therefore, can never be as intense as those of human beings. However, this does not mean that juristic persons are not protected by the right to privacy.... Juristic persons therefore do enjoy the right to privacy, although not to the same extent as natural persons. The level of justification for any particular limitation of the right will have to be judged in the light of the circumstances of each case. Relevant circumstances would include whether the subject of the limitation is a natural or juristic person as well as the nature and effect of the invasion of privacy’: Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Limited: In Re Hyundai Motor Distributors (Pty) Limited v Smit NO [2000] ZACC 12; 2001 (1) SA 545 (CC) para 18. [5] This matter concerns: 5.1
the legality and consequences of the appointment by the chief
executive officer of the Financial Services Board (“the FSB”) in his capacity as Registrar under the Inspection of Financial
Institutions Act 80 of 1998 (“the New Inspection Act”) of an inspection into the affairs of the Applicants in terms of section 3 of the New Inspection Act read with section 45 of the Stock Exchange Control Act 1 of 1985 (“SECA”) and section 26 of the Financial Markets
Control Act 55 of 1989 (“the FMCA”), and
5.2
the constitutionality of sections 3 and 4(1)(b) to (f) of the New
Inspection Act.
THE FACTS
[6]
The cause of events leading up to the seventh Respondent’s decision to appoint the inspectors to conduct an inspection into the affairs of the Applicants in terms of section 3 of the New Inspection Act on 10 July 2003 may be summarized as follows. A company called Paragon Securities (Pty) Ltd (‘Paragon’) previously conducted business in South Africa. Its directors were Messrs D Dempsy and S J Parry and its compliance officer Greg Pereira. Paragon was not registered to manage
investments either under the Stock Exchanges Control Act, 1 of 1985 (‘SECA’) or the Financial Markets Control Act, 55
of 1989 (‘FMCA’).
[7] During May 1998 Van Deventer was appointed by the Registrar as an inspector to investigate Paragon’s activities. Pursuant to his investigation Van Deventer concluded that Paragon was managing investments as contemplated in the SECA in that it was buying and selling listed shares for clients. Paragon accepted this and applied for approval under section 4 of SECA . [8] On 5 August 1998 the applications were rejected by the Registrar because he was not satisfied that the persons controlling Paragon were of good character and integrity. On receipt of this decision Paragon undertook to cease its activities by 12 August 1998. [9] On 17 September 1998 Van Deventer visited Paragon’s offices to ascertain whether it had indeed ceased operations. He found that a company called Thibault Capital Markets Ltd (‘TCM’) was operating from the premises and effectively conducting the same business. TCM was a company incorporated in the British Virgin Islands on 20 August 1998. Parry (formerly of Paragon) was its managing director and apparent controller while Pereira was a director. [10] Van Deventer was thereafter appointed by the Registrar as an inspector to investigate TCM’s business. On 26 October 1998 Van Deventer submitted a report in which he concluded that TCM’s business, like Paragon’s, could not lawfully be conducted unless TCM was approved to manage investments in accordance with SECA and FMCA. [11] TCM’s business involved (as had Paragon’s) the buying and selling of shares for clients resident in the United Kingdom. Van Deventer’s conclusion was that the shares in question were ‘listed on a foreign exchange’ within the meaning of section 4(7)(a) of SECA and section 5(7)(a) of FMCA, and were thus ‘investments’ for purposes of sections 4 and 5 of those Acts respectively. Since Parry disputed this, some brief background is necessary. [12] The shares which TCM bought and sold were listed on the Alternative Investment Market (‘AIM’) of the London Stock Exchange (‘LSE’). European Community Directives lay down a common listing standard for countries in the European Economic Area (‘the EC standard’). The stock exchanges of member states maintain so-called Official Lists of those companies whose shares are listed in accordance with the EC standard. Such exchanges may and do maintain other lists of companies which do not conform to the EC standard but whose shares are traded on the exchange in question in accordance with criteria imposed by such exchange. [13] In the case of the United Kingdom, Part IV of the Financial Services Act 1986 governed the admission of securities to the Official List of the LSE, i.e. the list of companies complying with the EC standard. (The 1986 Act was replaced with effect from December 2001 by the Financial Services and Markets Act 2000.) The AIM list is another list which the LSE maintains. The AIM is a market operated by the LSE, and companies can only be admitted to the AIM list if they comply with criteria established and published by the LSE. As the name AIM implies, the shares on this list would generally be regarded as entailing a higher risk for the investor than shares on the Official List. [14] Van Deventer’s conclusion, which is one shared by the Registrar and the FSB, was that shares listed on AIM were shares ‘listed on a foreign exchange’ for purposes of SECA and FMCA. [15] In the light of Parry’s contrary view, the FSB during November 1998 caused papers for an interdict to be prepared. The application was not issued because the FSB understood that TCM had decided to close its operations and that Parry had left South Africa. [16] However, during January 2001 the FSB received notification from its fellow regulator in the United Kingdom, the Financial Services Authority (‘FSA’) that TCM again appeared to be operating from South Africa. The notification also furnished information concerning an associated company, Thibault International Financial Advisory Corporation SA (‘TIFAC’), incorporated in Spain. The FSB’s subsequent investigations established that TIFAC was a wholly-owned subsidiary of TCM. [17] According to the FSA, Parry, Dempsy and Pereira continued to be involved in the activities of TCM/TIFAC. The FSA received calls from about 200 UK clients, most of whom complained that TCM/TIFAC failed to furnish them with share certificates or refused or were unable to arrange for the sale of shares owned by the clients but registered in the name of a TCM nominee company. [18] The information supplied by the FSA indicated that although mail, telephone and faxes had for a while been diverted to addresses and numbers in Barcelona, the same numbers were now being diverted to Cape Town. Employees of TCM/TIFAC told clients that they were speaking from Cape Town. [19] On receipt of this information the Registrar appointed two inspectors, A Ferreira and P Ntsubane, to investigate the matter. They ascertained that TCM was indeed operating from Cape Town. Eugene Celliers (mentioned in the FSA notification as an employee of TCM) claimed to be the sole director and shareholder. He said that TCM had never stopped operating from Cape Town; its former directors had simply left the country. [20] In their report of 30 March 2001 the inspectors concluded that Celliers was not in truth the controller of TCM/TIFAC. They based this finding inter alia on the fact that he was unable to explain why TCM was operating from South Africa in circumstances where it had no clients in this country, had no bank accounts here, did not deal in South African securities and did not make use of South African brokers. [21] Although Celliers, like Parry, contended that shares listed on AIM were not ‘listed on a foreign exchange’ for purposes of SECA and FMCA, the inspectors disagreed and adhered to the view previously expressed by Van Deventer. However, no further action was taken at that time because Celliers informed the inspectors that TCM was closing down, inter alia because of bad publicity associated with its failure to furnish share certificates to clients. The assets in the name of TCM’s nominee company, Thibault Nominees Ltd (formerly Paragon Securities Nominees Ltd), were to be allocated to the rightful owners. Celliers stated that the FSA had been notified of the winding up of TCM. [22] The FSA informed the FSB that the Spanish regulator, the Comision Nacional del Mercado de Valores (‘CNMV’), issued a public warning requiring TIFAC to cease its activities in Spain. On 12 September 2001, and in response to a query from the FSB, the CNMV addressed a letter to the FSB. From this letter the FSB learnt the following: 22.1
TIFAC was described as the Spanish branch of TCM.
22.2 Its administrators included Neil Oosterlaak and Stephen Brumfitt. 22.3 On 31 October 2000 the CNMV’s board resolved to initiate an investigation into the activities of TIFAC, Oosterlaak and Brumfitt for providing investment services without due authorisation. At the same time TIFAC was instructed to stop providing such services and to cancel relationships with existing clients. 22.4 TIFAC wrote to the CNMV on 20 November 2000 undertaking to do so. 22.5 Charges were served on TIFAC, Oosterlaak and Brumfitt on 22 November 2000. 22.6 No penalty had been imposed on these parties as at 12 September 2001 (the date of the CNMV letter).
[23]
In a press release issued on 30 April 2002 the CMNV announced that a fine of €3 298 718 had been imposed on TIFAC
and fines of €300 505 each on Oosterlaak and Brumfitt for providing investment management services without due authorisation.
It was this operation in Barcelona which seems to have been transferred shortly after November 2000 to Cape Town.
[24] From the Applicant’s replying papers it appears that Oosterlaak struck up a business relationship with Stofberg during December 2001, leading to the perpetuation of the call centre operation, now from Johannesburg in the name of Anglo Rand Capital House (Pty) Ltd (‘Anglo Rand’). [25] In the Applicant’s replying affidavit it alludes to West Shore Ventures Ltd (‘WSV’) and to the director of that company, one Rakesh Saxena. WSV is a company incorporated in British Columbia, Canada. The FSB had during October 2002 asked Oosterlaak about Anglo Rand’s activities and the nature of its business. At the meeting Oosterlaak indicated that Anglo Rand was using client lists obtained from WSV – which he claimed was in good standing with the Canadian regulatory authority.
[26]
Pursuant to an enquiry the FSB received a letter dated 14 February 2003 from the British Columbian Securities Commission. This letter
stated that Saxena, who was the sole principal of WSV, was under house arrest in Vancouver awaiting extradition to Thailand to face charges that he had embezzled about $88 million from the Bangkok Bank of Commerce. The Bangkok Bank of Commerce went into
bankruptcy in the first half of 1996. According to press reports, Saxena fled Thailand at that time and was arrested in Canada on 7 July 1996, where he remains under house arrest pending his opposed extradition.
[27] The following further facts concerning WSV and Saxena, obtained by the FSB subsequent to the seventh Respondent’s decision to appoint the inspectors on 10 July 2003, are relevant. On September 2000, and following a four-year extradition hearing, a British Columbia Court ordered Saxena’s extradition to Thailand to face charges of fraud. After a three-year delay, the Canadian Minister of Justice ordered that Saxena be surrendered to Thailand. An appeal is pending against the extradition order. In October 2004 the British Columbia Supreme Court dismissed an application by Saxena to have his continued detention reviewed. [28] Investors who lost money in their dealings with WSV and Saxena have recently instituted proceedings against Saxena in the British Columbia Supreme Court. The investors claim to have suffered substantial losses from a so-called ‘boiler room operation’ which was conducted in Barcelona and later in South Africa and which was orchestrated by WSV/Saxena while Saxena was under house arrest in Canada. WSV investors had been directed to forward money to the law firm of Martin & Associates in Vancouver. During October 2003 the British Columbia Law Society commenced an investigation into this firm’s association with WSV/Saxena and had it placed under curatorship. In July 2004, following a report by a forensic accountant, the firm’s two principals admitted to professional misconduct and agreed not to re-apply for membership of the law society for ten years. [29] Returning to the chronology, in the first half of 2003 Anglo Rand’s controllers acquired the Applicant (‘Platinum’). Platinum was at that stage already approved as an investment manager under section 4 of SECA and section 5 of FMCA. The call centre continued, but with Platinum now as the public face of the operation. Platinum used its approved status to give comfort to its clients. During that time the FSB received information that WSV ran a ‘boiler room operation’ in which shares, many of which transpired to be worthless, were promoted through high-pressure telephone selling techniques.
[30]
The FSA periodically published lists of firms which unlawfully undertook investment management services without regulatory authority. On 30 April 2003 one such update was published. Included in this list were the names of TCM and WSV.
[31] On 13 May 2003 FSB’s Norman Muller received an email communication from FSA’s Dan Jackson concerning a boiler-room operation which had moved from Barcelona to South Africa. Jackson stated that WSV (controlled by Saxena) had initially conducted the operation from Spain but was now claiming (in its dealings with clients) that it had moved to South Africa and changed its name to Platinum. [32] This led to Anderson of the FSB meeting with Platinum on 14 May 2003 and a letter from Platinum to Anderson of 15 May 2003 denying any relationship with WSV but stating that Stofberg of Anglo Rand had previously had a connection with WSV. [33] However, on 9 June 2003 the FSB received further information in the form of an email from Rob King. Among the matters appearing from this email and its annexures were the following:
(a)
On 7 February 2003 Oosterlaak had e-mailed King concerning an investment in a company called AQCP. Oosterlaak’s email address
was given as ‘westshore@mweb.co.za’, the sender was described as ‘West Shore Ventures South Africa’ and Oosterlaak was designated as its ‘Head of Operations’.
(b) This email followed upon telephonic contact between King and Selwyn Levy. (The latter was subsequently described by Platinum in its letter to the FSB of 17 June 2003 as ‘a client liaison and private equity promoter for Platinum and previously Anglo Rand’, as holding no relationship with WSV and probably one of Platinum’s ‘more aggressive promoters competing directly with West Shore Ventures’.) (c) King’s subsequent investment in AQCP was evidenced by a trade confirmation dated 10 April 2003 issued by Hooray Securities Ltd (‘Hooray’). Hooray was described in the confirmation as a member of the Hong Kong Exchange. The ‘agent’ in the transaction was recorded as WSV, and payment was to be made to the Canadian law firm of Martin & Associates in trust for WSV. In this confirmation document, contact numbers for WSV were furnished, namely 0870-7101-801 (in the UK) and 011-883 1849 (phone) and 011-883 2325 (fax) (both in Johannesburg). The two Johannesburg numbers correspond with the phone and fax numbers appearing on Anglo Rand’s letterhead. (d) Later documentation which King received pursuant to his dealings with Selwyn Levy reflected the name of Platinum rather than WSV. This appears from the trade confirmations dated 8 May 2003 annexed to King’s email. Except that the confirmations were now on a Platinum letterhead, the format of the documents was basically the same as the Hooray confirmation. However, the documents advised King that he should contact Platinum (not WSV) about his investment. The South African fax number given was the same one as previously furnished for WSV, while the UK phone number was the same except for the last digit. (When during the course of the inspection one of the inspectors, ‘Van Zyl’, dialled the UK number given for WSV it was answered by Platinum in Sandton. (e) The Platinum trade confirmations instructed King to make payment to K R Margetson Ltd ‘in trust for Platinum Asset Management’. (f) The terms and conditions which accompanied the Platinum trade confirmations were clearly modelled on, and were in a number of instances copied verbatim from, the terms and conditions previously annexed to the Hooray trade confirmation. (g) On its trade confirmations and the accompanying terms and conditions, Platinum advertised the fact that it was regulated by the FSB.
[34]
On 24 June 2003, and pursuant to the email communications of 14/15 May 2003, the FSA formally requested the FSB’s assistance
with regard to Platinum, which the FSA suspected of carrying on a regulated activity in the UK. The FSA reported having had complaints from UK residents who had received ‘cold calls’ from persons identifying themselves as Platinum employees. The recipients of these calls had been offered shares in NASDAQ-quoted
companies. It was mentioned by the FSA that Platinum may previously have operated under the name of WSV.
[35] Two days later, on 26 June 2003, the FSB received an angry email from Charlie West, who was approached ‘by Westshore Ventures or is it Platinum Asset Management (they both seem to be the same company)’ to invest (at $3 per share) in Diversified Equities International despite the fact that the quoted NASDAQ price was zero. West pointed out that Platinum’s website stated that its offerings were backed by WSV. [36] It was contended on behalf of FSB, and the third to eighth Respondents (FSB Respondents) that the information available to the seventh Respondent as at 10 July 2003 (when he appointed the inspectors) there were reasonable grounds for him to suspect:
1.
that Platinum was cold calling potential clients in a boiler-room type operation in which shares listed on foreign exchanges were being offered;
2. that Platinum was using its status as an FSB-approved institution to promote its business and to give potential clients comfort; 3. that Platinum’s operation in South Africa was the continuation of a similar operation which had been conducted in Barcelona, which operation had been shut down by the Spanish regulator; 4. that Oosterlaak, who had featured in TCM/TIFAC’s unlawful Barcelona operation and had been fined by the Spanish regulator for unlawful investment activities, was centrally involved in Platinum’s South African operation;
5.
that WSV and ultimately Saxena lay behind both the Spanish and the South African operations;
6. that investors had previously been prejudiced by TCM/TIFAC’s activities and stood to suffer potential harm in consequence of Platinum’s operation; and 7. that Platinum’s representatives had not been candid in the information furnished to the FSB. SCHEME OF THE NEW INSPECTION ACT
[37]
It is important to set out the relevant provisions of the New Inspection Act. The New Inspection Act was promulgated:
“To provide for the inspection of the affairs of financial institutions; the inspection of the affairs of unregistered entities
conducting the business of financial institutions; and for matters connected therewith.
[a80y1998s1]1 Definitions
In this Act, unless the context indicates otherwise-
'associated institution' means-
(a)
any person, partnership, company or trust in which, or in the business of which, a financial institution, or unregistered person,
has or had a direct or indirect interest;
(b) any person, partnership, company or trust which has or had a direct or indirect interest in a financial institution or unregistered person, or in the business of a financial institution or unregistered person;
(c)
a participating employer in a pension fund organisation;
(d)
any person, partnership, company or trust that controls, manages or administers the affairs or part of the affairs of a financial
institution or an unregistered person;
'company'
includes a close corporation referred to in the Close Corporations Act, 1984 (Act 69 of 1984);
'document' includes books, records, securities or accounts, and any information, including information stored or recorded electronically, digitally, photographically, magnetically or optically;
'financial institution' means-
(a)
any institution referred to in the definition of 'financial institution' in section 1 of the Financial Services Board Act, 1990 (Act
97 of 1990);
(b) a medical scheme registered in terms of the Medical Schemes Act, 1967 (Act 72 of 1967); (c) for the purposes of implementation of any agreement, communiqu or memorandum of understanding referred to in section 3A, any person referred to in that section;
[Para. (c) added by s. 21 of Act 12 of 2000.]
'inspector'
means a person appointed as an inspector under section 2;
'institution' means a financial institution, an associated institution and an unregistered person; 'legal representative' means an attorney as defined in section 1 of the Attorneys Act, 1979 (Act 53 of 1979), and an advocate as defined in section 1 of the Admission of Advocates Act, 1964 (Act 74 of 1964);
'registered',
in relation to a financial institution, includes provisionally registered;
'registrar' means the executive officer defined in section 1 of the Financial Services Board Act, 1990, but in relation to a medical scheme registered in terms of the Medical Schemes Act, 1967, the registrar of medical schemes appointed under section 13 of that Act;
'unregistered person'
means a person, partnership, company or trust inspected under section 3 (2).
[a80y1998s2]2
Appointment of inspectors
(1)
The registrar may from time to time appoint inspectors under this Act.
(2) The registrar must furnish every inspector with a certificate of appointment signed by the registrar. (3) An inspector must, before commencement of an inspection or the examination of any person, produce his or her certificate of appointment. (4) An inspector may, with the consent of the registrar, appoint any person to assist him or her in carrying out an inspection.
[a80y1998s3]3
Inspection of institutions
(1)
The registrar may at any time instruct an inspector to carry out an inspection of the affairs, or any
part of the affairs, of a financial institution or associated institution.
(2) If the registrar has reason to believe that a person, partnership, company or trust which is not registered or approved as a financial institution, is carrying on the business of a financial institution, he or she may instruct an inspector to inspect the affairs, or any part of the affairs, of such a person, partnership, company or trust. (3) Any person who holds shares in an institution as a nominee or in trust on behalf of another person, must upon the request of an inspector or the registrar, disclose the name of that other person. (4) Before the registrar instructs an inspector to carry out an inspection he or she must take all reasonable steps to ensure that the person so instructed will be able to report objectively and impartially on the affairs of the institution.
[a80y1998s3A]3A
Inspections for purposes of agreements, communiqu
s and memoranda of understanding
The registrar may at any time instruct an inspector to carry out an inspection in accordance with the provisions of sections 4 and
5, pursuant to and for the purposes of implementation of any agreement, communiqu
or memorandum of understanding contemplated in section 22 (2) (b) of the Financial Services Board Act, 1990 (Act 97 of 1990), of the affairs or part of the affairs of any person referred to in, or
identified by the requesting authority acting in terms of, any such agreement, communiqu
or memorandum, and who is present or resident in the Republic.
[S. 3A inserted by s. 21 of Act 12 of 2000.]
[a80y1998s4]4
Powers of inspectors relating to institutions
In carrying out an inspection of the affairs of an institution under section 3 an inspector
may-
(a)
administer an oath or affirmation or otherwise examine any person who is or formerly was a director, servant, employee, partner, member
or shareholder of the institution;
(b) at any time without prior notice enter and search any premises occupied by the institution and require the production of any document relating to the affairs of that institution; (c) open any strongroom, safe or other container in which he or she suspects any document of the institution is kept; (d) examine and make extracts from and copies of any document of the institution or, against the issue of a receipt, remove such document temporarily for that purpose; (e) against the issue of a receipt, seize any document of the institution which in his or her opinion may afford evidence of an offence or irregularity; (f) retain any seized document for as long as it may be required for any criminal or other proceedings.
(2)
An institution or its authorised representative may, during normal office hours, examine and make
extracts from any document seized from the institution under subsection (1) (e), under the supervision of the registrar or an inspector.
[a80y1998s5]5 Powers of inspectors relating to other persons
In order to carry out an inspection of the affairs of an institution under section 3, an inspector may-
(a)
administer an oath or affirmation or otherwise examine any person, if he or she has reason to believe that such person may be able
to provide information relating to the affairs of the institution;
(b) on the authority of a warrant, at any time without prior notice-
(i)
enter any premises and require the production of any document relating to the affairs of the institution;
(ii) enter and search any premises for any documents relating to the affairs of the institution; (iii) open any strongroom, safe or other container which he or she suspects contains any document relating to the affairs of the institution; (iv) examine, make extracts from and copy any document relating to the affairs of the institution or, against the issue of a receipt, remove such document temporarily for that purpose;
(v)
against the issue of a receipt, seize any document relating to the affairs of the institution, which, in his or her opinion, may afford evidence
of an offence or irregularity;
(vi)
retain any seized document for as long as it may be required for criminal or other proceedings,
but an inspector may proceed without a warrant, the person in control of any premises consents to the actions contemplated in this
paragraph.
(2)
(a) A warrant contemplated in subsection (1) (b) may be issued, on application of an inspector, by a judge or magistrate who has jurisdiction in the area where the premises in question
is located.
(b) Such a warrant may only be issued if it appears from information under oath that there is reason to believe that a document relating
to the affairs of the institution being inspected is kept at the premises concerned.
(3)
Any person from whom a document has been seized under subsection (1) (b) (v), or his or her authorised representative, may examine such document and make extracts therefrom under the supervision of the registrar
or an inspector during normal office hours.”
[38]
The New Inspection Act distinguishes between institutions and other persons. For institutions no warrant is required – for other persons a warrant is required. In terms of section 5(2)(a) of the New Inspection Act a warrant contemplated in subsection 1(b) may be issued, on application of an inspector, by a Judge or Magistrate
who has jurisdiction in the area where the premises is located.
[39] The New Inspection Act makes further provisions for: the time and place for examinations, (section 6); the right to legal professional privilege (section 7), which states that neither section 4 nor section 5 shall be construed so as to infringe on the Common Law right to professional privilege between an attorney and his or her client in respect of information communicated; observance of secrecy (section 8), a person carrying out an inspection must preserve, or aid in preserving, secrecy with regard to all matters that may come to his or her knowledge in the performance of their duties; section 12 deals with offences and penalties, and imposes penal sanctions for the contravention in certain instances. FSB RESPONDENT’S PRELIMINARY POINTS
The FSB Respondents raised the following preliminary points:
Platinum’s failure to exhaust an internal remedy; and Platinum’s unreasonable delay in bringing the review application
[40]
The FSB Respondents contended that Platinum’s application for judicial review is barred by section 7(2) of the Promotion of Administrative Justice Act, 3 of 2000 (“PAJA”) because, before bringing it, Platinum failed to exhaust a remedy provided for in another law, namely the right to appeal to the
FSB Board of Appeal in terms of section 26(2) of the Financial Services Board Act, 97 of 1990 (‘the FSB Act’).
[41]
Section 7(2) of PAJA states that no Court shall review an administrative action in terms of PAJA unless any internal remedy provided for in any other law has first been
exhausted. If the Court is not satisfied that the internal remedy has been exhausted, it must direct that the person concerned first exhaust such remedy before instituting proceedings
in a Court for judicial review. The Court may, however, in exceptional circumstances, and on application by the person concerned, exempt him or her from the obligation
to exhaust any internal remedy if the Court deems it in the interests of justice.
[42]
Platinum contended that there was no appeal to the Board of Appeal against a decision by the Registrar to instruct
an inspection in terms of section 3 of the New Inspection Act. FSB Respondent’s counsel contended that there was no substance in this contention. It was contended that where
there is no internal remedy, section 7(1)(b) of PAJA requires a review application to be launched without unreasonable delay and
not later than 180 days after the aggrieved party became aware of the administrative action.
[43] It was common cause that the Registrar’s action contemplated in section 3(1) of the New Inspection Act in terms whereof the Registrar may at anytime instruct an inspector to carry out an inspection of the affairs or any part of the affairs, of a financial institution or associated institution did not constitute an “administrative action.” To my mind this view is a correct one. The reason being firstly, an inspector duly appointed has no power other than to investigate facts. Secondly, as far as the privacy rights are concerned, the instruction does not invade such rights because as Mr Rogers correctly points out the inspector might decide not to use section 4 in the course of the inspection. Whether particular conduct constitutes “administrative action” depends primarily on the nature of the power that is being exercised rather than upon the identity of the person who does so. The conduct of the inspectors in carrying out their daily functions would translate into “administrative action.” [44] The Applicants contended that they did not rely on their challenge of the FSB Respondent’s decisions on PAJA, because it accepted that a decision in terms of section 3(1) of the New Inspection Act to appoint an inspector did not meet the definitional requirements of “administrative action” as defined in section 1 of PAJA because it is not a decision “which adversely affects the rights of any person and which has a direct, external legal effect.” Accordingly, it was contended on behalf of the Applicants that all the grounds of challenge brought by the Applicants, as they go to the legality of the decision, can be brought directly under section 1(c) of the Constitution (Constitution of the Republic of South Africa Act 108 of 1996) even though the decision does not constitute “administrative action” as defined in PAJA. [45] It is important to determine whether the actions of the inspectors constituted an “administrative action”. Platinum’s initial application was for the review of the Registrar’s decision to appoint the inspectors, as well as a constitutional attack of the impugned sections. Platinum’s first attack on the actions of the inspectors was in terms of an amendment granted at the hearing on 14 November 2005. If the actions of the inspectors constituted an “administrative action” then the time periods contemplated by section 7(1) of PAJA had long expired, and the Applicants were out of time. In addition, if the actions of the inspectors constituted an “administrative action,” then in terms of section 7(2) of PAJA the Applicants failed to exhaust its internal remedies in the form of the appeal in terms of section 26(2) of the FSB Act. [46] What constitutes “administrative action” – the exercise of the administrative powers of the State – has escaped complete definition. See Greys Marine Houtbay (Pty) Ltd and Others v Minister of Public Works and Others [2005] ZASCA 43; 2005 (10) BCLR 931 (SCA) at para 21 – 25. [47] In Greys Marine Houtbay (Pty) Ltd at para 23 Nugent JA stated: “While PAJA’s definition purports to restrict administrative action to decisions that, as a fact “adversely affect the rights of any person”, I do not think that a literal meaning could have been intended. For administrative action to be characterised by its effect in particular cases (either beneficial or adverse) seems to me to be paradoxical and also finds no support from the construction that has until now been placed on section 33 of the Constitution. Moreover, that literal construction would be inconsonant with section 3(1), which envisages that administrative action might or might not affect rights adversely. The qualification, particularly when seen in conjunction with the requirement that it must have a “direct and external legal effect”, was probably intended rather to convey that administrative action is action that has the capacity to affect legal rights, the two qualifications in tandem serving to emphasise that administrative action impacts directly and immediately on individuals.” [48] It is trite that in determining whether particular conduct constitutes “administrative action”, depends primarily on the nature of the power that is being exercised rather than upon the identity of the person who does so. See President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1(CC) para 141. “Administrative action” in general terms, constitutes the conduct of the bureaucracy (whoever the bureaucrats functionally might be) in carrying out the daily functions of the State which necessarily involves the application of policy, usually after its translation into law, with direct and immediate consequences for individuals or groups of individuals. See SA Rugby Football Union paras 145-147. [49] Prior to the decision of the Constitutional Court in Pharmaceutical Manufacturers Association of SA: In Re Ex parte President of the Republic of South Africa [2000] ZACC 1; 2000 (2) SA 674 (CC) there was some confusion as to the relationship between the Constitution and the Common Law in cases involving the review of administrative action. See for instance Commissioner of Customs and Excise v Container Logistics (Pty) Ltd; Commissioner of Customs and Excise v Rennies Group Limited t/a Renfreight 1999(3) SA 771 (SCA). The confusion arose, in part at least, from the “constitutional issue last” doctrine that the Constitutional Court had prescribed in cases such as S v Mhlungu [1995] ZACC 4; 1995 (3) SA 867 (CC); and Zantsi v Council of State Ciskei [1995] ZACC 9; 1995 (4) SA 615 (CC). The confusion has now been resolved. Pharmaceutical Manufacturers has made it clear that the Judicial Review of every public power is a constitutional issue and that the common law – which used to provide for review as part of the inherent jurisdiction of the superior courts – has been subsumed under the Constitution which provides the rationale and framework for the review of all public power. In this scheme, PAJA fleshes out the fundamental right to just administrative action contained in section 33 of the Constitution: See Pennington v Friedgood 2002 (1) SA 251 (C) paras 10 – 18; Ampofo v MEC for Education, Arts, Culture, Sports and Recreation, Northern Province 2002 (2) SA 215 (T) para 55. [50] The distinction which the Applicants seek to draw between administrative action under PAJA and administrative action under the Constitution is an illusionary one. The Applicants attempt to draw distinction between section 33 of the Constitution and PAJA is simply to avoid the procedural requirements contemplated by PAJA. The exercise of their powers in terms of section 4 and section 5 of the New Inspection Act can be nothing other than an “administrative action”. The inspectors are exercising their statutory powers that may well affect rights, interests or legitimate expectations of the Applicants. See Zondi v MEC for Traditional and Local Government Affairs and Others 2005 (3) SA 589 (CC) at para 99: Section 33 of the Constitution guarantees to everyone the right to administrative action that is lawful, reasonable and procedurally fair. PAJA was enacted to give effect to section 33 of the Constitution. PAJA cannot be used to evaluate a constitutional challenge; however a constitutional challenge must be evaluated under section 33 of the Constitution. Accordingly PAJA comes into the picture when an applicant seeks to review administrative action. A person contending to review any administrative action must now base the cause of action on PAJA. Statutes that authorise administrative action must be read together with PAJA, unless upon a proper construction, the provisions of the statutes in question are inconsistent with PAJA. [51] It is for the above reasons that section 7(1) and 7(2) of PAJA find application in the present matter. In terms of section 7(1) of PAJA:
(1) “any proceedings for judicial review in terms of section 6(1) must be
instituted without unreasonable delay and not later then 180 days
after the date –
(a) subject to subsection (2)(c), on which any proceedings instituted in terms of internal remedies as contemplated in subsection(2)(a) have been concluded; or
(b) …. (2)(a) Subject to paragraph (c), no court or tribunal shall review an administrative action in terms of this Act unless any internal remedy provided for in any other law has first been exhausted. (b) Subject to paragraph (c), a court or tribunal must if it is not satisfied that any internal remedy referred to in paragraph (a) has been exhausted, direct that person concerned must first exhaust such remedy before instituting proceedings in a court or tribunal for judicial review in terms of this Act. (c) A court or tribunal may, in exceptional circumstances and on application by the person concerned, exempt such person from the obligation to exhaust any internal remedy if the court or tribunal deems it in the interest of justice.”
[52]
It has been pointed out by Currie and Klaaren The Promotion of Administrative Justice Act Benchbook (2001) 182, and subsequently confirmed by the Supreme Court of Appeal in Nichol and Another v Registrar of Pension Funds and Others, unreported SCA judgment dated 29 September 2005, case number 467/4, para 15 that by imposing a strict duty to exhaust domestic remedies
PAJA has considerably reformed the Common Law. It is now compulsory for the aggrieved party in all cases to institute an application without delay and not later than 180 days after
the date, alternatively to exhaust the relevant internal remedies unless exempted from doing so by way of a successful application
under section 7(2)(c).
[53] In the present case there was an internal remedy (an appeal to the FSB Board of Appeal in terms of section 26 of the FSB Act). The Applicants did not avail themselves of that remedy before instituting the review proceedings. In addition, the Applicants have instituted the application later than 180 days after the date. [54] Exceptional circumstances generally defy definition. The exceptional circumstances upon which reliance is placed in support of an application for exemption should primarily be facts and circumstances existing before or at the time of the institution of the review proceedings. This does not mean that the Court may not, in principle take into consideration events occurring after the launch of such proceedings. See R V Secretary of State for the Home Department, Ex parte Swati [1986] 1 ALL ER 717 (CA) at 724 a-b and Nichol above. [55] It is common cause that the Applicants in this case did not lodge the application within the time period envisaged. It is further common cause that the Applicants have not referred the matter to the FSB Board of Appeal in terms of section 26 of the FSB Act. I take into consideration the sentiments expressed by the SCA in the Nichol matter, particularly the sentiments expressed about the purpose and functions of the FSB Appeal Board. [56] In so far as section 7(1) of PAJA is concerned, there is no requirement that an applicant for review should be nonsuited by virtue of his failure to comply with the time period stipulated in this provision. A Court has the power to extend this period on application under section 9 of PAJA, where the interests of justice so require. To my mind, the Respondents would not suffer any prejudice if such an extension were to be favourably considered in the present matter. The amendment (during the course of the application) was sought in the context of litigation in progress in which all interested parties were joined, and in which the facts were elucidated and the issues substantially the same. [57] The Respondents were not taken by surprise. A claimant, who is seeking to establish a constitutional breach on reasonable grounds, should not necessarily be bound to the formulation of the relief originally sought or the manner in which it was originally presented. See: Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies intervening) [2001] ZACC 22; 2001 (4) SA 938 (CC). [58] Section 7(2)(c) of PAJA gives a Court the discretion to exempt the applicant from the obligation envisaged in section 7(1) and section 7(2)(a). [59] In my view there are the following factors that cumulatively would constitute exceptional circumstances;
59.1
When the search and seizure i.e. the actual cause of the Applicants complaint was carried out, the period in which to note an appeal had expired.
59.2 The Applicants were unaware of any right of appeal until the point was raised in the Respondent’s notice on 14 December 2004 by which time the right to appeal had lapsed, (this clearly distinguishes the present case from Nichol).This is not in dispute. 59.3
It is not clear whether the Respondents notified the Applicant of
any right of appeal in terms
of the FSB Act.
59.4
The present application concerns a consideration of the power of the inspectors as contemplated in the New Inspection Act. These powers are utilised inter alia by the Registrar of Medical Schemes and the Registrar of Banks.
59.5
It would be extremely unsatisfactory if a matter of this magnitude and importance had to be decided presently on a technical preliminary point, only to be resumed at a later stage on the merits.
59.6 A Court must strike a proper balance in exercising its discretion.
[60]
I find that there are exceptional circumstances present, which dictate that in the interest of justice, I determine the remaining issues. I now deal with each of the Applicant’s challenges on the six independent grounds relied upon.
THE APPLICANT’S REVIEW APPLICATION PLATINUM IS NOT A FINANCIAL INSTITUTION
[61]
The present case concerns an inspection conducted by the third to fifth Respondents, in terms of section 3 of the New Inspection Act read with section 45 of SECA and section 26 of the FMCA. The third to fifth Respondents were appointed as inspectors under section 2 of the New Inspection Act. When the Registrar instructed the inspectors on 10 July 2003 to inspect the affairs of the Applicants, he was performing his duties in terms of section 3 of the New Inspection Act read with section 45 of SECA and section 26 of the FMCA. The inspectors have always exercised their powers of inspection
in terms of section 3 of the New Inspection Act.
[62] Section 3 of the New Inspection Act vests the Registrar with powers to appoint an inspection into the affairs of “a financial institution or associated institution.” The Applicants contended that the inspection in the present case is ultra vires section 3 of the New Inspection Act because the Applicant is not a “financial institution” as defined. The Applicants further contended that neither section 45 of SECA, nor section 26 of the FMCA expressly authorised the appointment of an inspection under section 3 of the New Inspection Act. According to the Applicants, these sections do not refer to the New Inspection Act, but they refer to its predecessor, the Inspection of Financial Institutions Act 38 of 1984 (“the Old Inspection Act”). [63] Prior to the enactment of the New Inspection Act, the incorporation of the provisions of the Old Inspection Act into section 45 of SECA and section 26 of the FMCA was necessary because the Old Inspection Act, unlike the New Inspection Act, contained its own limited definition of “financial institution”. It did not incorporate the broader definition of “financial institution” contained within the FSB Act.
[64] The definition of “financial institution” in the Old Inspection Act was
“(a)
an insurer registered in terms of the Insurance Act, 1943 (Act 27 of 1943), and includes an agent for brokers or underwriters at Lloyds,
or any other person in respect of whom section 20bis of that Act or a regulation made under section 23A of that Act applies;
(b) a pension fund organization registered in terms of the Pension Funds Act, 1956 (Act 24 of 1956), or a person contemplated in section 13B of the said Act; (c) a friendly society registered in terms of the Friendly Societies Act, 1956 (Act 25 of 1956), or a person carrying on the business of the control and administration of the affairs of such a friendly society; (d) a banking institution registered in terms of the Banks Act, 1965 (Act 23 of 1965); (e) a mutual building society registered in terms of the Mutual Building Societies Act, 1965 (Act 24 of 1965), or a building society registered in terms of the Building Societies Act, 1986; (f) a medical scheme registered in terms of the Medical Schemes Act, 1967 (Act 72 of 1967); (g) a management company registered in terms of the Unit Trusts Control Act, 1981 (Act 54 of 1981), or a unit trust scheme as defined in that Act”
(Paragraphs (d) and (e) of the definition were deleted by the Financial Institutions Amendment Act 6 of 1987 which inserted sections
8A and 8B into the South African Reserve Bank Act, 29 of 1944 to provide for the Reserve Bank to appoint inspections into banking
institutions and mutual building societies and for the application of the provisions of the Old Inspection Act mutatis mutandis to such inspections).
[65]
Accordingly, the argument continued the Old Inspection Act did not, on its own terms, apply to institutions covered by paragraphs (v) or (vi) of the definition of “financial institution” in the FSB Act, and absent the provisions of sections 45 of SECA and 26 of the FMCA, such institutions would not have been subject to regulatory inspection.
[66]
On 10 July 2003, when the inspection was appointed, Section 1 of the New Inspection Act defined “financial institution” to mean:
“(a)
any institution referred to in the definition of 'financial institution' in section 1 of
the Financial Services Board Act, 1990 (Act 97 of 1990);
(b) a medical scheme registered in terms of the Medical Schemes Act, 1967 (Act 72 of 1967); (c) for the purposes of implementation of any agreement, communiqu or memorandum of understanding referred to in section 3A, any person referred to in that section”.
[67]
The FSB Act, as at the date in question, defined “financial institution” as follows:
'financial institution' means-
(a)(i)
any pension fund organisation registered in terms of the Pension Funds Act, 1956 (Act 24 of 1956), or any person
referred to in section 13B of that Act administering the investments of such a pension fund or the disposition of benefits provided
for in the rules of such a pension fund;
(ii) any friendly society registered in terms of the Friendly Societies Act, 1956 (Act 25 of 1956), or any person in charge of the management of the affairs of such a society; (iii) a collective investment scheme as defined in section 1 of the Collective Investment Schemes Control Act, 2002, a manager, trustee or custodian registered in terms of that Act, and an authorised agent of such a manager; (iv) any 'scheme' as defined in section 1 of the Participation Bonds Act, 1981 (Act 55 of 1981), or any manager or nominee company in relation to such a scheme; (v) any 'stock exchange', 'member' or 'stock-broker' as defined in section 1 of the Stock Exchanges Control Act, 1985 (Act 1 of 1985), or any person referred to in section 4 (1) of that Act managing investments as contemplated in that section; (vi) any 'financial exchange', 'member' or 'recognised clearing house' as defined in section 1 of the Financial Markets Control Act, 1989 (Act 55 of 1989), or any person referred to in section 5 (1) of that Act managing investments as contemplated in that section; (vii) any 'registered insurer' as defined in section 1 (1) of the Insurance Act, 1943 (Act 27 of 1943); (viii) any agent, broker or other person contemplated in section 20bis of the Insurance Act, 1943; (ix) any person deemed, in terms of section 60 of the Insurance Act, 1943, to be carrying on insurance business in the Republic; (x) any person rendering or who is to render services contemplated in section 23A(1) of the Insurance Act, 1943; (xi) any 'central securities depository' or a 'depositary institution' as defined in section 1 of the Safe Deposit of Securities Act, 1992 (Act 85 of 1992), or any member of such a securities depository; (xii) any 'authorised financial services provider' or 'representative' as defined in section 1 (1) of the Financial Advisory and Intermediary Services Act, 2002; (b)(i) a bank as defined in section 1 (1) of the Banks Act, 1990 (Act 94 of 1990), or a mutual bank as defined in section 1 (1) of the Mutual Banks Act, 1993 (Act 124 of 1993), which deals with trust property as a regular feature of its business; or (ii) any other person who or which deals with trust property as a regular feature of his, her or its business, but who is not registered, licensed, recognised, approved or otherwise authorised to deal so in terms of any Act, other than the Companies Act, 1973 (Act 61 of 1973), the Close Corporations Act, 1984 (Act 69 of 1984), and the Trust Property Control Act, 1988 (Act 57 of 1988)”
[68]
This argument is incorrect. If the Applicant is not a “financial institution” as defined in the FSB and New Inspection Act, the inspection was nevertheless validly appointed in terms of section 45 of SECA and section 26 of the FMCA because these acts permit the appointment, under section 3 of the New Inspection Act, for an inspection into the affairs of any institution approved under section 4(1) of SECA or section 5(1) of the FMCA, irrespective of
whether or not the institution concerned is managing “investments” within the meaning of the respective Acts.
[69] Section 45 of SECA and section 26 of the FMCA have been repealed by section 45 of the Financial Advisory and Intermediary Services Act 37 of 2002. At the time of the appointment of the inspection in the present case, the sections provided that: “45 Inspections
(1) The provisions of the Inspection of Financial Institutions Act, 1984 (Act 38
of 1984), shall apply mutatis mutandis to-
(a)(i) a stock exchange; (ii) a member or an officer or employee of a member; (iii) a person approved in terms of section 4 or an officer or employee of such a person;
(b) (i)
any person not licensed to carry on the business of a stock exchange;
(ii) a person who is not a member; or (iii) a person not approved in terms of section 4; and
but who is carrying on the business of a stock exchange, of a member or of a person requiring approval in terms of section 4, as the
case may be;
(c)
any other person who the Registrar has reason to believe is contravening or has contravened any provision
of this Act.
(2) In such application of the said provisions of the Inspection of Financial Institutions
Act, 1984 -
(a)
section 4 (2) thereof shall be construed as if after the words 'of the financial institution' the
words 'or any person who has had any dealings with such institution' had been inserted; and
(b)
the proviso to section 8 (1) thereof shall be construed as if the following further paragraph had
been added:
'(e)
the Registrar shall communicate to the committee or the official responsible for surveillance of the
business carried on by a stock exchange any relevant information pertaining to the affairs of a member or past member of that stock
exchange obtained by the Registrar in the course of an inspection under this Act, or from a report by an inspector on such an inspection.'.
(c)
any stock exchange, member, or an officer or employee of a member or other person referred to in
subsection (1) shall be deemed to be a financial institution, and the Registrar to be the Registrar defined in section 1 of the Inspection
of Financial Institutions Act, 1984.
(3) The committee or the disciplinary tribunal contemplated in section 2A (b) may in any disciplinary proceedings in terms of the
rules take into consideration any relevant information furnished to the committee by virtue of the provisions of subsection (2) (b).”
“26 Inspections
(1) The provisions of the Inspection of Financial Institutions Act, 1984 (Act 38 of 1984), shall apply mutatis mutandis to-
(a) (i)
a financial exchange or the clearing house of such an exchange;
(ii) a member or an officer or employee of a member; (iii) a person approved in terms of section 5 or an officer or employee of such a person; (b)(i) any person not licensed to carry on the business of a financial exchange; (ii) a person who is not a member; or (iii) a person not approved in terms of section 5 of this Act,
but who is carrying on the business of a financial exchange, a member or person requiring approval in terms of section 5; and
(c) any other person whom the Registrar has reason to believe contravenes or has contravened any provision of this Act.
(2) In such application of the said provisions of the Inspection of Financial Institutions Act, 1984-
(a)
section 4(2) thereof shall be construed as if the words 'or any person who has had any dealings
with such institution' were inserted after the words 'of the financial institution'; and
(b) the proviso to section 8(1) thereof shall be construed as if the following further paragraph had been added:
'(e)
the Registrar shall communicate to the executive committee or to the official responsible for surveillance
of the business carried on by a financial exchange any relevant information pertaining to the affairs of a member or past member
of that financial exchange obtained by him in the course of an inspection under this Act, or from a report by an inspector on such
an inspection.';
(c)
any financial exchange, clearing house, member or an officer or employee of a member or other person
referred to in subsection (1) shall be deemed to be a financial institution, and the Registrar to be the Registrar as defined in
section 1 of the Inspection of Financial Institutions Act, 1984.
(3)
The executive committee or the disciplinary tribunal contemplated in section 13 (b) may in any disciplinary proceedings in terms of
the rules take into consideration any relevant information furnished to the executive committee by virtue of the provisions of subsection
(2) (b).”
[70]
The Applicants rely on the words ‘managing investments as contemplated in that section’ in paragraphs (a) (v) and (vi). They further contend that the words are not merely a convenient cross-reference to persons referred to under section 4(1) of SECA and section 5(1) of FMCA, but limits the power of inspection to persons actually managing investments. In my judgment, this argument is incorrect. The power of inspection derives from section 45 of SECA and section 26 of FMCA,
and not from the ‘financial institution’ definition in the FSB Act read with the New Inspection Act. And secondly, the words ‘managing investments as contemplated in that section’ in paragraphs (a) (v) and (vi) of the FSB Act ‘financial institution’ definition are merely a convenient cross-reference to persons referred to under section 4(1) of SECA and section 5(1)
of FMCA.
[71]
Section 45(1)(a)(iii) of SECA provides that the provisions of the Old Inspection Act shall apply mutatis mutandis to a person approved in terms of section 4 of SECA. It is common cause that Platinum is a person so approved. Thereafter, section 45(1)(b)(iii)
of SECA refers to persons not so approved. Section 45(1)(c) of SECA refers to persons who the Registrar believes to be contravening
SECA or who have in the past contravened SECA. The provisions of FMCA and SECA do not differ in this respect. SECA and FMCA thus specifically determine the persons liable for inspection.
[72] The definition of ‘financial institution’ in the FSB Act was inserted by Act 22 of 1997, with effect from 12 September 1997. This definition was inserted not into the Old Inspection Act but in the FSB Act, and not specifically with inspections in mind. In my view, the definition was inserted for other purposes to dealing with the FSB Act. In addition, and at the time, the Old Inspection Act did not cross-refer to the FSB Act. [73] The New Inspection Act was enacted and commenced in 1998. For the first time, it referred to the definition of ‘financial institution’ in the FSB Act in an inclusive fashion. The institutions referred to are the institutions that may be inspected. But, as Mr Rogers correctly points out, one must resist the temptation to view the 1997 amendment to the FSB Act and the New Inspection Act of 1998 as parts of a single legislative scheme, aimed at restricting the range of institutions subject to inspection. If anything, the intention was to broaden the range. [74] There was no intention to interfere with other instances where the legislature had earlier specifically provided for inspections, e.g. SECA and FMCA. Thus there is no proper ground for inferring an intention, through the enactment of the New Inspection Act, to cut down the scope of SECA and FMCA. [75] The Applicants contended that the enactment and commencement of the New Inspection Act in 1998 impliedly repealed section 45 of SECA and section 26 of FMCA. Section 12(1) of the Interpretation Act creates a presumption that references in statutes to an Act (‘the Old Act’) repealed and replaced (with or without modifications) by a New Act must be construed as references to the New Act. The practical reason for the presumption, which can be rebutted if it is shown that those references are not to be interpreted as references to the New Act, is to ensure that the substitution of the New Act for the Old Act does not inadvertently lead to the repeal of all the other statutes which refer to the Old Act. [76] The test for what does or does not constitute ‘modifications’ is set out in Berman Brothers (Pty) Ltd v Sodastream Ltd and Another 1986 (3) SA 209 (A) at 239I-240D. There must be a radical alteration or a change in the essential nature of the statutory regime, which is not the case here. In Berman Brothers at 240F the Court also dealt with how one has to establish a ‘contrary intention’ for purposes of section 12(1) of the Interpretation Act. Earlier Appellate Division cases considered the intention of the Act (here, SECA and FMCA) which referred to the repealed law, while certain provincial division decisions had looked at the intention of the repealing Act (here the New Inspection Act). In Berman Brothers the Court left open whether it was the one or the other or both. [77] In the present case there is no reason to assume that when enacting the New Inspection Act the legislature intended to do away with every reference in other legislation to powers of inspection, specific to the institutions governed by the other legislation (such as SECA and FMCA). There can also be no basis for determining that the legislation, when enacting section 45 of SECA and section 26 of FMCA, intended to exclude the operation of section 12(1) of the Interpretation Act if the Old Inspection Act should be repealed. [78] It is clear that at the time when the New Inspection Act was enacted, section 45 of SECA and section 26 of FMCA did not receive the legislature’s express attention. It was not altered or affected in any way by the New Inspection Act. In these circumstances it would be improper to conclude that without having applied their mind, and without having considered the regimes created by provisions like section 45 of SECA and section 26 of FMCA, the legislature decided impliedly to repeal them. [79] The Financial Advisory and Intermediary Services Act 37 of 2002 (‘FAIS’) provides a sound basis that section 45(1) of SECA was not impliedly repealed in 1998. Section 45(2) of FAIS, read with the schedule, deals with the amendment of laws. One of the provisions amended is section 45(1)(a)(iii) of SECA. This amendment was made with effect from the effective date of section 7(1) of FAIS, namely 30 September 2004. Thus section 45(1)(a)(iii) of SECA (and the equivalent provision in section 26 of FMCA) were repealed on 30 September 2004, while other words were added in to section 45 and 26. Therefore to my mind, it is been permissible to inspect persons registered under section 4 of SECA and section 5 of FMCA on the facts of the present matter. [80] Section 45(1)(a)(iii) of SECA applies to Platinum. Section 45(2)(c) of SECA provides that when applying the provisions of the New Inspection Act due to section 45 of SECA, any person referred to in section 45(1) (including persons referred to in section 45(1)(a)(iii)) shall be deemed to be a ‘financial institution’, and the ‘Registrar’ (as defined in SECA) shall be deemed to be the ‘registrar’ as defined in the New Inspection Act. [81] Platinum’s argument may give rise to certain anomalies in its interpretation and application of the FSB Act. For example, registered institutions which are not managing investments would not be liable for the payment of levies in terms of section 15 A(1) of the FSB Act. [82] In addition the following anomalies would apply in Platinum’s interpretation and application of the New Inspection Act. Sections 3(1) and (2) of the New Inspection Act deal respectively with the inspection of institutions/associated institutions and persons reasonably suspected of carrying on the business of an institution. On Platinum’s argument an approved institution which is not managing investments is always able to resist an inspection, whereas an unapproved institution may be inspected even if it is in fact not managing investments but is reasonably suspected of doing so. [83] Finally, the contention that the Acts were impliedly repealed, may be dealt with as follows. There is a presumption that a later general enactment was not intended to repeal a conflicting earlier special enactment. This presumption falls away if there are clear indications that the Legislature nonetheless intended to repeal the earlier enactment. This would be the case when it is evident that the later enactment was meant to cover, without exception, the whole field or subject to which it relates. That is not so in the case of the New Inspection Act (which is general legislation in relation to the specific inspection provisions in SECA and FMCA dealing with inspections under those Acts.) See Khumalo v Director-General of Co-operation and Development and Others [1990] ZASCA 118; 1991 (1) SA 158 (A) at 164C-165E.
OVERBROAD, UNDEFINED AND UNSPECIFIED AUTHORISATION
[84]
The Applicants contended that in the event of the Registrar exercising his powers to appoint an inspection in this case, the exercise of this power in the form of the instruction
to the inspectors, is manifestly overbroad and accordingly inconsistent with the rule of law principle entrenched in section 1(c)
of the Constitution.
[85] The authorisation stated that “you are hereby instructed … to carry out an inspection of the above mentioned entity and its associates.” The above mentioned entity is the Applicant. It is correct that the authorisation did not contain any instruction as envisaged in the New Inspection Act “into the affairs, or any part of the affairs of the financial institution.” [86] The Applicants further contended that the stipulation of parameters to the inspection is fundamental to any authorisation: it defines the parameters of the investigation and is necessary for the inspectors to confine their powers of inspection to issues which are germane to the subject matter of their inspection and for the person who is the subject of an inspection to know his or her rights in this respect. This is underpinned by the provisions of section 2 (3) of the New Inspection Act. That section states “an inspector must, before commencement of an inspection or the examination of any person, produce his or her certificate of appointment.” The argument continued that in the absence of clear parameters in the letter of appointment, renders the appointment overbroad and inconsistent with the rule of law principle entrenched by section 1(c) of the Constitution. See Dawood and Another v Minister of Home Affairs and Others 2 000 (3) SA 936 (CC) at paras 46 – 47; Janse van Rensburg NO and Another v Minister of Trade and Industry and Another NNO 2001 (1) SA 29 (CC) at paras 24 – 25. [87] Strictly speaking, the Applicants complaint constitutes a constitutional attack in this regard. The Applicants reliance on Dawood and Another, and Janse van Rensburg NO and Another above is not applicable and definitely distinguishable in the present matter. Those cases deal with legislation which authorise an invasion of rights. The principle expounded from those cases is that it may be inappropriate for a statute to authorise a discretionary power, the exercise of which may invade rights, without giving the official concerned guidelines about the exercise of the power to avoid unnecessary invasions. [88] In the present matter the Registrar has developed guidelines for inspectors. In essence, two types of inspections are ordered by the Registrar: Routine inspections Special inspections including forensic investigations. [89] The Registrar conducts surveillance and enforcement programmes. This is to keep in touch with financial institutions to such an extent that the Registrar is able to take precautionary steps to ensure that institutions do not get into difficulties, instead of coming along afterwards with measures designed to bring about a recovery. These inspections are carried out in terms of section 3(1) of the New Inspection Act. To my mind, this constitutes a routine inspection. Here, the Registrar must consider inter alia the internal controls, administrative systems, compliance with statutory requirements and the soundness of practices in rendering financial services. [90] Then there are special inspections. This is ordered by the Registrar if it appears that there are circumstances suggesting the possibility of criminal conduct or a lack of compliance with the obligations imposed by legislation under his administration. [91] The guidelines relating to the general overview of inspections set out in a rational and objective manner the exercise of the powers and duties of the inspector. [92] The instruction furnished in the present matter does conform with section 3(1) of the New Inspection Act. Financial inspections are specialised in their very nature. A target of an inspection cannot always be told at the time of the inspection what information or documents are precisely required. This is the object of the exercise. However, in the present case the evidence indicates that the Applicants were informed on several occasions about the information, documentation, and other requirements that the inspectors intended investigating. The search was carried out because despite several requests the information was not forthcoming. [93] The Applicants’ complaint that private information and documents were seized during the inspection can be reasonably met with the explanation that in circumstances such as the present, where there was simply no co-operation, this is an inevitable consequence of an inspection. Here, private correspondence and information was stored on computer hard drives together with the relevant business information. [94] I do not believe that reference to Platinum’s “associates” in the instruction is vague. Here, the financial institution has been identified in the instruction and the instruction permitted the inspectors to identify, and inspect its “associates”. ULTERIOR PURPOSE [95] The Applicants contend that the investigation was initiated at the instance of a foreign regulator. On 24 June 2003 the FSA formally requested the assistance of the FSB to investigate the Applicant. The information sought by the FSA was to assist in its enquiries to determine whether the activities of Platinum were committed in breach of sections 19 or 21 of the Financial Services and Markets Act 2000. The Applicants argued that the dominant purpose of the investigation in terms of section 3 of the New Inspection Act was to monitor compliance with UK law. [96] This argument was raised for the first time by the Applicants in their heads of argument. There is no reference in the pleadings to the “dominant purpose”. Procedurally, an issue that has not been traversed in evidence, should not be allowed the indulgence of being raised for the first time during argument. This would place an opponent in a tactically disadvantaged position. [97] Communications with foreign regulators are permissible in our law in terms of section 22(2) (a) of the FSB Act read together with section 9(b)(vii) of the New Inspection Act. [98] The Applicants reliance on section 3(A) of the New Inspection Act is misplaced. This section is not concerned with financial institutions at all. However this section deals with persons who are in the Republic of South Africa and in whom a foreign regulator has interest. It will be recalled that there were several complaints as well as meetings with Anglo Rand’s representatives prior to entertaining the FSA complaint. The FSB made enquiries in Canada, where the product of the operation appeared to have extended. Therefore, the FSA was simply highlighting matters which had previously been the subject matter of the complaints and meetings regarding the Applicants. THE INDEPENDENCE OF THE INSPECTORS
[99]
Section 3(4) of the New Inspection Act states the following:
“Before the Registrar instructs an inspector to carry out an inspection he or she must take all reasonable steps to ensure that
the person so instructed will be able to report objectively and impartially on the affairs of the institution.”
[100]
The purpose of section 3(4) is to foster confidence in the inspections performed under the Act. In the exercise
of his duties under section 3(4), the Registrar must accordingly have regard to appearances of objectivity and impartiality. In this
regard, an analogy can be drawn between the principles governing section 3(4) and the principles governing the approach to guarantees
of objectivity and impartiality in the branches of the law relating to judicial independence and recusal. See: Van Rooyen and Others v The State and Others (General Council of the Bar of South Africa Intervening) 2002 (5) SA 246 (CC) at para 34; De Lange v Smuts NO and Others [1998] ZACC 6; 1998 (3) SA 785 (CC) at para 71; President of the Republic of South Africa and others v South African Rugby Football Union and Others [1999] ZACC 9; 1999 (4) SA 147 (CC); S v Roberts 1999 (4) SA 915 (SCA); Sager v Smith 2001 (3) SA 1004 (SCA); SA Commercial Catering & Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing) [2000] ZACC 10; 2000 (3) SA 705 (CC).
[101]
The inspection guidelines clarify the ambit of all inspections conducted
under the auspices of the FSB. The section that governs the profile of an inspector incorporated in the inspection guidelines is instructive.
The profile demands the following characteristics: technically highly skilled; good judgment; objective, impartial and fair; and
integrity. The Registrar’s contention that the inspectors he appointed were honest, capable, and able to report objectively and impartially
cannot be gainsaid in this matter. I cannot see how the New Inspection Act would require the inspectors to isolate themselves from
the Registrar. They must report to him.
[102]
The Applicants advanced nothing of substance to impugn the objectivity and impartiality of the inspectors. Their
suspicions were merely speculative.
THE INSPECTION WAS ULTRA VIRES THE FUNCTIONS AND POWERS OF THE FINANCIAL SERVICES BOARD
[103]
The Applicants contend that the regulator could not inspect anything other than contraventions of the laws that the FSB supervises. The argument may be crystallised as follows: The Inspection Act defines the Registrar as the executive officer of FSB and refers to ‘financial institutions’ as defined in the FSB Act. Section 3(a) of the FSB Act provides that the functions of FSB are to supervise the compliance
with laws regulating financial institutions.
[104] In other words the Applicants contend that when the Registrar appoints inspectors under the New Inspection Act he is acting not only under the New Inspection Act but also under the FSB Act. This cannot be correct, because the Registrar is making the appointment under the New Inspection Act, not the FSB Act. In addition, section 3(a) of the FSB Act does not concern itself with the functions of the Registrar, but with the functions of the FSB. [105] In the present matter the appointment was made in terms of section 45 of SECA and section 26 of the FMCA and not directly in terms of section 3 of the New Inspection Act. Section 45(1)(c) of SECA makes it clear that the purpose of inspecting institutions referred to in section 45(1)(a) is not limited to statutory contraventions.
THE CONSTITUTIONAL CHALLENGE TO THE NEW INSPECTION ACT
[106] The Challenged Provisions of the Act
The Applicants challenge the constitutionality of sections 3(1), 3(2), 4(1) (b), (c), (d), (e) and (f) of the New Inspection Act. The Applicant in the Anglo Rand matter in addition challenges the provisions
of the definition of “associated institution” as found in section 1 of the New Inspection Act. The amendment sought by Anglo Rand to include the provisions of “associated institution” has to be dealt with in the interest of justice, and therefore such amendment is granted.
[107]
I have set out the impugned provisions earlier in this judgment. The following features of section 3 and 4 of
the New Inspection Act are noteworthy.
107.1
The New Inspection Act deals with routine and specific regulatory inspections. This would invariably follow an
instruction by the Registrar in terms of section 3 of the New Inspection Act.
107.2 The Registrar has a discretion to appoint inspectors in terms of section 3 of the New Inspection Act. The power to appoint an inspection applies equally to “financial institutions” and “associated institutions”. 107.3 Once a Registrar has appointed an inspection into a “financial institution” or an “associated institution” the powers conferred by section 4(1) of the New Inspection Act begin to operate automatically.
[108]
The New Inspection Act was enacted to provide for the inspection of the affairs of “financial institutions”. The Financial Services Board has to supervise compliance with laws regulating “financial institutions” and the provisions of financial services. “financial institution” covers a wide array of institutions that render financial services impacting directly on the public, society, the country and global markets.
[109] The Applicants contend that the impugned provisions violate their fundamental right to privacy; their right to freedom of trade, occupation and profession and finally their right to just administrative action. FUNDAMENTAL RIGHT TO PRIVACY
[110]
The Bill of Rights protects the fundamental right to privacy in section 14 of the Constitution which states the
following:
“14
Privacy
Everyone has the right to privacy, which includes the right not to have
(a)
their person or home searched;
(b)
their property searched;
(c)
their possessions seized; or
(d)
the privacy of their communications infringed.”
[111]
In Bernstein v Bester, Ackermann J commented on the constitutional right to privacy in the following terms:
“The scope of privacy has been closely related to the concept of identity and it has been stated that 'rights, like the right
to privacy, are not based on a notion of the unencumbered self, but on the notion of what is necessary to have one's own autonomous
identity'. ...
In the context of privacy this would mean that it is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community. This implies that community rights and the rights of fellow members place a corresponding obligation on a citizen, thereby shaping the abstract notion of individualism towards identifying a concrete member of civil society. Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.” Bernstein and Another v Bester NO and Others [1996] ZACC 2; 1996 (2) SA 751 (CC) at paras 65 to 67.
[112]
The Constitutional Court has repeated this emphasis on the personal aspects of the right to privacy on several occasions. Mistry v Interim Medical and Dental Council of South Africa and others 1998 ( 4) SA 1127 (CC) at paras 27 to 28 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) at paras 31 to 32 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others [2000] ZACC 12; 2001 (1) SA 545 (CC) at para 15.
[113]
The fundamental right to privacy extends beyond the purely personal realm. This is clear from the judgment of the Constitutional Court in the Hyundai case:
“In Bernstein and Others v Bester and Others NNO, Ackermann J characterises the right to privacy as lying along a continuum, where the more a person interrelates with the world, the
more the right to privacy becomes attenuated. He stated:
'A very high level of protection is given to the individual's intimate personal sphere of life and the maintenance of its basic preconditions
and there is a final untouchable sphere of human freedom that is beyond interference from any public authority. So much so that,
in regard to this most intimate core of privacy, no justifiable limitation thereof can take place. But this most intimate core is
narrowly construed. This inviolable core is left behind once an individual enters into relationships with persons outside this closest
intimate sphere; the individual's activities then acquire a social dimension and the right of privacy in this context becomes subject
to limitation.'
The right, however, does not relate solely to the individual within his or her intimate space. Ackermann J did not state in the above passage that when we move beyond this established 'intimate core', we no longer retain a right to privacy in the social capacities in which we act. Thus, when people are in their offices, in their cars or on mobile telephones, they still retain a right to be left alone by the State unless certain conditions are satisfied. Wherever a person has the ability to decide what he or she wishes to disclose to the public and the expectation that such a decision will be respected is reasonable, the right to privacy will come into play.” Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others [2000] ZACC 12; 2001 (1) SA 545 (CC) at para 16 (emphasis added).
[114]
In Hyundai the Constitutional Court also held that the fundamental right to privacy is one which can be asserted by juristic persons as well
as natural persons. The Court did, however, caution against equating the juristic person’s privacy right with that of a natural
person:
“As we have seen, privacy is a right which becomes more intense the closer it moves to the intimate personal sphere of the life of human beings, and less intense as it moves away from that core. This understanding of the right flows, as was said in Bernstein, from the value placed on human dignity by the Constitution. Juristic persons are not the bearers of human dignity. Their privacy rights, therefore, can never be as intense as those of human beings. However, this does not mean that juristic persons are not protected by the right to privacy. Exclusion of juristic persons would lead to the possibility of grave violations of privacy in our society, with serious implications for the conduct of affairs. The State might, for instance, have free licence to search and seize material from any nonprofit organisation or corporate entity at will. This would obviously lead to grave disruptions and would undermine the very fabric of our democratic State. Juristic persons therefore do enjoy the right to privacy, although not to the same extent as natural persons.” Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others [2000] ZACC 12; 2001 (1) SA 545 (CC) at para 18.
[115]
A search and seizure therefore, by definition constitutes an invasion of the right to privacy.
THE LIMITATIONS ENQUIRY
The test for justification
[116]
The test for justification in terms of section 36(1) of the Constitution, is by now well established. The limitation imposed on the right to privacy by the search and seizure powers, are justified
only if reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account
all relevant factors including those specified in section 36(1). Ackermann J made the point in National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6 (CC) para 34 that, although the section did not expressly mention the importance of the right infringed, “this is a factor which must of necessity be taken into account in any proportionality evaluation”.
[117]
Section 36 of the Constitution reads as follows:
“(1)
The rights in the Bill of Rights may be limited only in terms of law of general application
to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality
and freedom, taking into account all relevant factors, including-
(a)
the nature of the right;
(b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and
(e)
less restrictive means to achieve the purpose.
(2)
Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit
any right entrenched in the Bill of Rights. “
THE NATURE AND IMPORTANCE OF THE RIGHT
[118]
The right to privacy is of the utmost importance. In Mistry v Interim Medical and Dental Council of SA 1998 (4) SA 1127 (CC) at para 25 Sachs J who gave the judgment of the Court, said the following in this regard:
“The existence of safeguards to regulate the way in which state officials may enter the private domains of ordinary citizens is one
of the features that distinguish a constitutional democracy from a police state.”
Sachs J also quoted with approval the following passage from the dissenting judgment of Jackson J in Brinegar v United States [1949] USSC 103; 338 US 160 (1949) at 180;
“These (Fourth Amendment rights), I protest, are not mere secondclass rights but belong in the catalogue of indispensable freedoms.
Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror
in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary
government.” Mistry v Interim Medical and Dental Council of SA 1998 (4) SA 1127 (CC) at para 25 fn 38.
[129]
A Court is enjoined to balance competing interests conducting a proportionality analysis of the extent of the infringement of the
right having regard to the nature and importance of the infringed right weighed against the purpose, importance and effect of the
infringing provisions whilst taking into account the availability of less restrictive means available to achieve the purpose. S v Manamela and Another (Director-General of Justice Intervening) 2000 (3) SA 1 (CC).
[120] The Legislation attacked, is primarily aimed at regulating commerce. It does not intend to violate the inner core of the intimate personal sphere of human activity. In any event, the nature and extent of the invasion of the privacy is circumscribed, and limitations on the powers of the inspectors have been placed. Therefore, the inspection must be authorised by the Registrar, however before the Registrar instructs an inspector the Registrar must take all reasonable steps to ensure that the person instructed, will be able to report objectively and impartially on the affairs of the “financial institution”, legal professional privilege is protected, an inspector is obliged to preserve secrecy.
THE IMPORTANCE AND PURPOSE OF THE LIMITATION
[121]
The purpose of the New Inspection Act appears to be two fold: The primary purpose of the Act is to provide a mechanism to enforce regulatory control in the financial services industry. In this
regard, however, it is important to distinguish between the investigatory mechanism of the New Inspection Act and the routine monitoring
mechanisms of most regulatory legislation. The New Inspection Act is designed to facilitate routine regulatory monitoring, and it
provides for ad hoc investigations of specific institutions following a particular instruction of the Registrar.
[122]
The purpose of the New Inspection Act serves an important function in the public domain. The extent of the limitation
of privacy affected by sections 3 and 4 of the New Inspection Act is proportional to the manner in which the envisaged purposes are advanced.
[123]
A business which is engaged in a regulated industry is operating in a competitive environment and a condition
of operating within this domain includes an adherence to reasonable controls. This has been recognised by the Constitutional Court:
‘The more public the undertaking and the more closely regulated, the more attenuated would the right to privacy be and the less
intense any possible invasion. … In the case of any regulated enterprise, the proprietor's expectation of privacy with respect
to the premises, equipment, materials and records must be attenuated by the obligation to comply with reasonable regulations and
to tolerate the administrative inspections that are an inseparable part of an effective regime of regulation. The greater the potential
hazards to the public, the less invasive the inspection. People involved in such undertakings must be taken to know from the outset
that their activities will be monitored. If they are licensed to function in a competitive environment, they accept as a condition
of their licence that they will adhere to the same reasonable controls as are applicable to their competitors…. In Almeida-Sanchez v United States Stewart J, writing for the majority, highlighted well the expectations of privacy involved in the modern world of closely regulated
enterprises:
'The businessman in a regulated industry in effect consents to the restrictions placed upon him. As the Court stated in Biswell:
'' . . . (W)hen a dealer chooses to engage in this pervasively regulated business
and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject
to effective inspection. . . . The dealer is not left to wonder about the purposes of the inspector or the limits of his task.” Mistry at para 27.
[124]
The plethora of legislation dealing with financial regulation are all interconnected with the central points being
the powers granted to regulators under sections 3 and 4 of the New Inspection Act to enforce the regulatory legislation.
[125] Other statutes which incorporate sections 3 and 4 of the New
Inspection Act includes inter alia the following:
The Banks Act 94 of 1990;
The Collective Schemes Control Act 45 of 2002;
The Securities Services Act of 2005;
Medical Schemes Act 131 of 1988.
[126] The impugned provisions relate not only to the facts and circumstances
of the matter at hand, but also to regulation of the financial industry as a whole. THE NATURE AND EXTENT OF THE LIMITATION
[127]
Search and seizure powers by their very nature constitute a drastic invasion of the right to privacy. Mistry v Interim Medical and Dental Council of SA 1998 (4) SA 1127 (CC) at para 25. Powell NO and Others v Van Der Merwe NO and Others 2005 (5) SA 62 (SCA) at paras 51 – 62. Thompson Newspapers v Canada (1990) 47 CRR 1 (SCC) 30 to 31. CBS v New Brunswick (AG) (1991) 7 CRR (2nd) 270 (SCC) 280 to 281. Baron v Canada (1993) 13 CRR (2nd) 65 (SCC) 84 to 85.
[128] In the latter case, Sopinka J for instance said the following at 84 to 85:
“Physical search of private premises (I mean private in the sense of private property, regardless of whether the public is permitted
to enter the premises to do business) is the greatest intrusion of privacy short of a violation of bodily integrity. It is quite
distinct from compelling a person to appear for examination under oath and to bring with them certain documents, under a subpoena
duces tecum ... or to produce documents on demand ...”
[129]
Our Constitutional Court has recognised that a person conducting business in a regulated industry may be searched without a warrant. Mistry at para 27.
[130]
The Canadian jurisdiction has sought to explain the limitation of privacy rights in regulated industries as follows:
"The licensing concept rests on the view that those who choose to participate in regulated activities have, in doing so, placed
themselves in a responsible relationship to the public generally and must accept the consequences of that responsibility. Therefore,
it is said, those who engage in regulated activities should, as part of the burden of responsible conduct attending participation
in the regulated field, be deemed to have accepted certain terms and conditions applicable to those who act within the regulated
sphere." R v Wholesale Travel Group Inc [1991] 3 SCR 154, S v Coetzee and Others [1997] ZACC 2; 1997 (3) SA 527 (CC) at 570.
[131]
The predominant purpose of the inspection is to enforce compliance with statutory requirements determined in this industry from time to time. It is important to note from the outset that the provisions of the respective legislation referred to in this matter are regulatory in nature. In fact, it is part of a much larger framework which regulates “financial institutions” throughout South Africa. Its primary goal is the protection of the investor but other goals include capital market efficiency and ensuring public confidence
in the system. The goal of protecting our economy is a goal of paramount importance. The protective role common to all legislation referred to, gives
a special character to such bodies which must be recognised when assessing the way in which their functions are carried out under
their respective Acts.
[132] In reading these powerful provisions it is clear that it was the legislator’s intention to give the Registrar a very broad discretion (subject to PAJA) to determine what is in the public’s interest. The impugned provisions are not to be analysed in isolation but rather in their regulatory context. The impugned provisions aim to protect the public from unscrupulous trading practices which may result in investors being defrauded. It is designed to ensure that the public may rely on honest traders of good repute, able to carry out their business in a manner that does not harm the market or society generally. An inspection of this kind legitimately concerns itself with the furtherance of a goal which is of substantial public importance. [133] Participants engage in this licensed activity of their own volition and ultimately for their own profit. In return for permitting persons to obtain the fruits of participation in this industry, society requires that market participants also undertake certain corresponding obligations in order to safeguard the public welfare and trust. Participants must conform with the extensive regulations and requirements set out by the impugned sections. Many of these requirements are fundamental to maintaining an efficient, competitive market environment in a context where imperfect information is endemic. They are also essential to prevent and deter abuses of such asymmetries of information, and therefore to maintain the integrity of the financial institutions and protect the public interests. [134] The investigatory powers encapsulated in the impugned provisions in the present case are the primary vehicle for the effective investigation and deterrence of insider trading, stock manipulation, and other trading practices contrary to the public interest. Therefore the impugned provisions must not be considered in the abstract, without regard for the potential repercussions of certain rights equally important to the other players. [135] The inspections envisaged are purely administrative in nature and do not adjudicate upon the guilt or innocence of the subject of the inspection. By entering this regulated field the Applicants have accepted that their business will be regulated. The common thread found in the underlying purpose of the impugned provisions is in harmonising social relations by requiring observance of standards reflecting the delicate balance between individual rights and the interest of society.
THE RELATION BETWEEN THE LIMITATION AND ITS PURPOSE
[136] The purpose of the New Inspection Act is advanced by the guidelines formulated. These guidelines explain to the Registrar how he must exercise his discretionary power in appointing inspectors executing an inspection. The purpose of the limitation is to ensure compliance through routine monitoring or to establish evidence of any irregularity or non compliance with the affected legislation. This would ensure the attainment of the purposes that I have set out earlier. Most importantly, there is a direct correlation between the limitation and its intended purpose- the effective and efficient regulation of the financial industry. [137] The powers of search and seizure conferred by section 4(1) of the New Inspection Act is not unconstrained. There are restrictions imposed by the New Inspection Act, and PAJA will be used to determine the fairness of the inspection. An aggrieved institution can also appeal in terms of the FSB Act. To my mind the regulation does not punish financial institutions; instead it controls their operations so that they comply with the respective legislation.
LESS RESTRICTIVE MEANS TO ACHIEVE THE PURPOSE
[138] For the reasons that I have set out hereinbefore the safeguards and restrictions that must be present, before allowing powers of search and seizure to be exercised can be rationally explained. The Registrar is enjoined to take all reasonable steps to ensure that the person so instructed will be able to report objectively and impartially. In the traditionally criminal law domain, it is fundamentally unfair for the State to seek as its predominant purpose to compel an individual, subject to possible imprisonment for failure to answer, to respond to questions on matters that will incriminate that person. I do not think that the same can necessarily be said with respect to the necessary regulation of complex industries in which the information required for effective regulation is generally in the hands of private actors, and where no less intrusive alternative means exist. [139] For the reasons set out the limitation of the Applicants right to privacy envisaged in section 14 of the Constitution is accordingly justified.
THE RULE OF LAW AND LAWFUL, PROCEDURALLY FAIR ADMINISTRATIVE ACTION AND FREEDOM OF TRADE, OCCUPATION AND PROFESSION
[140]
Section 33(1) of the Constitution provides that “everyone has the right to administrative action that is lawful, reasonable and procedurally fair.”
Section 22 of the Constitution provides “every citizen has the right to choose the trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.” [141] Section 33 of the Constitution coupled with PAJA applies to and binds the entire administration, at all levels of government. It provides a set of coherent rules and principles for the proper performance of all administrative action within its ambit, requires the giving of reasons for administrative action; and sets out the remedies that are available if these rules are not complied with. The principle of legality requires the exercise of administrative power to be authorised by law. In other words, a law must authorise the administrator. Administrative action must also comply with the general requirements of PAJA. The decisions of the Registrar constitute administrative action and are therefore reviewable.
[142]
In this regard the Constitutional Court held in the case of Zondi at para 99 that:
“Section 33 of the Constitution guarantees to everyone 'the right to administrative action that is lawful, reasonable and procedurally fair'. As its preamble makes clear, PAJA was enacted to give effect
to s 33 of the Constitution. However, PAJA cannot be used to evaluate a constitutional challenge. A constitutional challenge must
be evaluated under s 33 of the Constitution. Generally, PAJA only comes into the picture when it is sought to review administrative
action. Ordinarily anyone who wishes to review any administrative action must now base the cause of action on PAJA. This is so because
'(t)he cause of action for the judicial review of administrative action now ordinarily arises from PAJA, not from the common law
as in the past'…
That said, however, it does not mean that PAJA has no role when a statute is challenged on the grounds that it violates s 33. PAJA was enacted pursuant to the provisions of s 33, which requires the enactment of national legislation to give effect to the right to administrative action. PAJA therefore governs the exercise of administrative action in general. All decision-makers who are entrusted with the authority to make administrative decisions by any statute are therefore required to do so in a manner that is consistent with PAJA. The effect of this is that statutes that authorise administrative action must now be read together with PAJA unless, upon a proper construction, the provisions of the statutes in question are inconsistent with PAJA.
Thus, where there is a constitutional challenge to the provisions of a statute on the ground that they are inconsistent with the provisions
of s 33 of the Constitution, the proper approach is first to consider whether the provisions in question can be read in a manner
that is consistent with the Constitution. If they are capable, they will ordinarily pass constitutional muster.”
[143] The provisions of the New inspection Act are capable of being read
in conformity with PAJA. The Applicants may approach a Court for
urgent interlocutory relief pending the finalisation of the main dispute. The safeguards provided by PAJA and reflected in section 33 of the Constitution ensure that the Registrar must have an open mind and a complete picture of the facts and circumstances within which the administrative action is to be taken. In this way the Registrar must apply his mind throughout the process envisaged in the New Inspection Act in a fair a regular manner.
[144]
The inspection guidelines provides informed guidance to the functionary.
[145] Similarly the Applicants choice to participate in a highly regulated industry is of its own making. They chose their trade, occupation and profession within the financial industry freely and voluntarily. This industry is regulated by law. [146] The need to protect public interest in appropriate circumstances is not only justified, but essential. Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others CCT 59/05, (unreported decision of the Constitutional Court decided 30 September 2005.) [147] The rights envisaged in section 22 of the Constitution as well as section 33 of the Constitution enjoyed by the Applicants have not been infringed in the present matter. COSTS [148] The determination made by Marais J on 7 May 2004 does not form part of the present dispute. The parties may set that matter down for determination of the costs at their convenience. The present matter deals with the consolidated disputes, under case numbers 2004/3081 and 2004/6260. There is no reason as to why the Applicants should not be ordered to pay the Respondents costs. Both sets of Amici were granted leave to join in as parties. Their participation was integrally linked to the consequences attached to the relief sought by the Applicants. As such, they were directly involved in all of the proceedings. I see no reason as to why the Applicants should not be ordered to pay their costs. ORDER 1.
The applications in both matters are dismissed.
2. The Applicants must pay the costs of the Respondents, which includes the costs of two counsel where two counsel were employed. 3. The Applicants are further ordered to pay the costs of the Respondents in relation to the present application, where the costs were reserved. ___________________ JAJBHAY J
Judge of the High Court of South Africa.
On behalf of the Applicants:
Advocate Tuchten SC with Advocate
D Vetten
Instructed by Singer Horwitz Attorneys. On behalf of first and third to Eighth Respondents: Advocate O Rogers SC with Advocate AM Breitenbach Instructed by Ruth and Wessels INC. On behalf of the second Respondent: Advocate PM Mtshaulana SC with Advocate K Pillay Instructed by the State Attorney. On behalf of the Registrar for Medical Schemes: Advocate I Semenya SC Instructed by Gildenhuys Lessing Malatji INC. On behalf the Registrar of Banks: Advocate S van Nieuwenhuizen SC with Advocate EL Theron. Instructed by Ruth and Wessels INC. Dates of Hearing: 14, 15, 16 November 2005.
Date of Judgment:
5th December 2005
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