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Open Secrets and Another v Minister of Finance and Others (55493/2020) [2021] ZAGPPHC 570

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Open Secrets and Another v Minister of Finance and Others (55493/2020) [2021] ZAGPPHC 570

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17th September 2021

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1.     This application concerns a challenge by the applicants against the regulations promulgated in terms of section 61(1) of the Financial Sector Conduct Authority Act 9 of 2017 (“the FSCA Act”) on 29 March 2018 in Government Gazette No:4155D GN R405 (“the regulations”). These Regulations were twice amended, and on both counts subjected to a public comment process, on 29 March 2019 and 5 August 2020.

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2.     The applicants’ case is that the Regulations fall to be declared as unlawful and set aside on the basis that they are:

2.1    unlawful to the extent that they fail to provide for openness and transparency in the appointment process; by the Minister of Finance (“the Minister”) of the commissioner and the Deputy commissioner of the FSCA;

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2.2    unlawful to the extent that they fail to provide public access to the interviews conducted by the shortlisting panel;

2.3    ultra vires alternatively irrational, in that the Minister unilaterally adopted the appointment process applicable to the head of one organ of State i.e. the Commissioner for the South African Revenue Service (“SARS Commissioner”), to another, i.e. the FSCA; and

2.4    ultra vires to the extent that they permitted the Minister to not only delegate his obligation of appointment, but also to the extent that they give the shortlisting panel unfettered powers to determine its own process, without any guidance.

3.     Prior to launching this application (i.e. Part B), the applicants had sought urgent application under Part A, interdicting the shortlisting Panel from shortlisting and interviewing the candidates in the appointing of a Commissioner and Deputy Commissioner(s) of the FSCA, and making any recommendations to the Minister. Furthermore, compelling the respondents to publish within 3 days of the grant of the order; the schedule of interviews of candidates so shortlisted and interviewed carried out to date; and the criteria in respect of which such candidates were so shortlisted and interviewed.

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