Ilse Becker and Others v The Financial Services Conduct Authority and Others

Ilse Becker and Eugene Becker were directors of Fusion Guarantees (Pty) Ltd, a company offering guarantees and sureties. Following an investigation conducted at the instance of the Financial Services Conduct Authority (FSCA), Fusion was found on a prima facie basis to have contravened provisions of the Short-Term Insurance Act. The FSCA notified Fusion and the Beckers of its intention to impose an administrative penalty of R200 million on Fusion and to debar the Beckers for 15 years. Before any final regulatory decision was taken, the appellants approached the Gauteng Division of the High Court seeking an order declaring sections 154, 167, 230 and 231 of the Financial Sector Regulation Act 9 of 2017 unconstitutional, alleging that the statutory scheme failed to provide procedural fairness when the FSCA determined whether a contravention had occurred. The High Court dismissed the application, and the appellants appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel.

The judgment clarifies the procedural fairness obligations of the Financial Services Conduct Authority under the Financial Sector Regulation Act and affirms that PAJA applies to regulatory enforcement decisions. It reinforces the principle of constitutional subsidiarity by confirming that statutory schemes must be read together with PAJA before alleging a violation of section 33 of the Constitution, and it confirms the validity of the FSCA’s enforcement framework.