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Charities lose case against South African regulator's recruitment process

Chris Hamblin, Editor, London, 2 December 2020

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According to two activist charities, the appointment process of the commissioner and deputy commissioner of the South African Financial Sector Authority is shrouded under a veil of secrecy with no public participation or oversight. A judge in Pretoria has disagreed with them.

The charities in question, acting as applicants in a civil case, were Open Secrets and the Unpaid Benefits Campaign; the respondents were the Minister of Finance, the Financial Sector Conduct Authority and various governmental personnel.

This was an application to the court which fell into two parts. In Part A, the applicants asked for an interdict to restrain the authorities from shortlisting, interviewing and/or recommending for appointment candidates for the positions of commissioner and deputy commissioners of the FSCA pending the finalisation of Part B. Part B sought an order declaring the regulations that sprang from s61(4) Financial Sector Regulation Act 2017 as unlawful to the extent that they fail to provide for media and/or public access to the interviews of the shortlisted candidates for the posts.

The charities complained that the names of all candidates who applied for the posts are not made public, that the interviews were not conducted in the public sphere and that the appointments were made without public participation because the appointment criteria were kept secret.

Judge E van der Shyff of the High Court demurred, saying: "I pause at this juncture to point out that the applicants are mistaken in their view that appointment criteria are not in the public domain. The appointment criteria are statutorily determined in s61 Financial Sector Regulations Act 2017 (the FSRA) and Reg 11 of the regulations."

She went on: "I am of the view that the applicants have failed to satisfy the requirements relating to urgency. The applicants have not met the threshold for interim relief. The circumstances of this case do not justify the court to step into the executive’s domain to suspend or regulate the interview process in the interim."

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