Trustco : SUSPENSION APPLICATION – TRUSTCO APPLICATION FOR LEAVE TO APPEAL

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

APPLICANT'S NOTICE OF APPLICATION FOR LEAVE TO APPEAL

PLEASE TAKE NOTICE THAT the applicant hereby applies for leave to appeal against the whole of the judgment and order handed down by Her Ladyship the Honourable Justice Potteril on 7 November 2022 ("the Order").

TAKE NOTICE FURTHER THAT the applicant seeks leave to appeal to the Supreme Court of Appeal, alternatively to the Full Court of this Division and that the application will be made on a date to be arranged with the Registrar of this Court.

TAKE NOTICE FURTHER THAT the applicant contends that the appeal has reasonable prospects of success and that there are other compelling reasons why leave to appeal should

be granted, as provided for in sections 17(1)(a)(i) and (ii) of the Superior Courts Act 10 of 2013, on the basis of the grounds set out below.

PROSPECTS OF SUCCESS

1. Section 17(1)(a)(i) of the Superior Courts Act provides that leave to appeal may be granted where the judges concerned are of the opinion that "the appeal would have a reasonable prospect of success".
2. For the reasons that follow, it is respectfully submitted that the appeal would have a reasonable prospect of success.

1. The Panel composition

1. The Court recognised that the applicant's reconsideration application before the
   Financial Services Tribunal ("FST") was heard and determined by a panel that consisted of a retired Judge, and two legal practitioners, and that the Panel excluded anyone with financial or accounting qualifications or experience ("the Panel").
2. The Court erred in law and/or fact in finding that the applicant's ground of review challenging the composition of the Panel was attempting to "raise the merits of the decision and seek another outcome. Review is concerned with whether a decision was regular or irregular not whether it was right or wrong. On this ground alone this ground of review should be rejected" (para 28 of the judgment).

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1. The Court ought to have found that the applicant's argument, properly construed, was that the improper constitution of the Panel rendered the decision by the Panel irregular because the process was irregular - quite apart from whether the outcome ultimately reached by the Panel was correct or not.
   The applicant's founding affidavit raised various reviewable irregularities (see paragraphs 108 to 113, and 119 to 134 of the founding affidavit) challenging the manner in which the decision was reached, rather than the outcome of the decision: that is the hallmark of any review application;
2. The Court ought to have found that it is a central principle of administrative law that, when challenging a process as being unfair, the applicant need not show that if the correct process had been followed there would necessarily have been a different outcome. It is "vital that the procedure and the merit should be kept strictly apart, since otherwise the merits may be prejudged unfairly."1

1. The Court erred in law and/or fact in finding that the constitution of the Panel could not be attacked because the decision of retired Judge Harms to compose the Panel had not been expressly listed separately in the applicant's amended notice of motion.
2. The Court ought to have found that:

1 Wade Administrative Law 6 ed (Oxford University Press, New York 1988) at 533-4. Cited with approval by the Constitutional Court in Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others 2014 (1) SA 604 (CC) at para 26 the Constitutional Court noted: "The remarks are as applicable to our law as they are to English law."

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1. an applicant - as dominus litis - may elect to challenge the same irregularity by different means. The applicant was entitled either to challenge: (i) the decision taken by retired Justice Harms as to the composition of the Panel; or (ii) to challenge the decision delivered by the FST on the basis that the process was procedurally and substantively irrational because the Panel had been improperly constituted and lacked the relevant expertise. There was no need to challenge the appointment decision separately;
2. this is particularly so because the law discourages reviews in medias res of intermediate decisions, in a multi-layereddecision-making process, before the administrative process has been completed. The applicant explained that it was not aware, until after the proceedings, that the Panel members lacked financial expertise. At that stage, there was nothing precluding the applicant from challenging the entire process and decision rendered by the Panel on the basis that the Panel was not properly constituted.

1. The Court acknowledged (at para 32 of the judgment) that the applicant's argument that "in view of the nature of the reconsiderations brought before the Panel, the requirement of financial experience would be an apparent reason to at least have one Panellist to have such expertise is not unreasonable".
2. The Court, however, erred in law and/or fact in finding that:
   8.1 considering the language used in the light of the ordinary rules of grammar and syntax and the context in which the provisions appear there is no ambiguity or

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uncertainty about the content of sections 220, 224 and 225 of the Financial Sector Regulation Act 9 of 2017 ("FSR Act") (para 31 of the judgment); and

8.2 the applicant's interpretation of the FSR Act amounted to substituting the words actually used for what is argued to be a business-like result (para 33 of the judgment).

9 The Court ought to have found that section 220(2) read with sections 224(4) and 225(2)(a) of the FSR Act - correctly interpreted in the light of the purpose of the provisions - means that the composition of the members of the Panel in each matter must be appointed on a case-by-case basis, based on whether the particular matter requires particular expertise.

1. Section 220(2)(b) of the FSR Act provides that the Tribunal members must include "at least two (other) persons with experience or expert knowledge of financial products, financial services, financial instruments, market infrastructures or the financial system";
2. Section 224(4) of the FSR Act provides that the Panel constituted to consider an application for reconsideration must consist of a person to preside over the panel, who must be a person referred to in section 220(2)(a) (i.e. a person having relevant experience in law) and two or more persons who are Tribunal members or persons on the panel list;
3. There would be no purpose in the express requirement in section 220(2) that the Tribunal is to include at least two persons of each of the two distinct

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