THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable

Case no: 866/2016

In the matter between:

MASLAMONY THEEGARAJAN PATHER
FIRST APPELLANT

AH-VEST LIMITED
SECOND APPELLANT

and

FINANCIAL SERVICES BOARD
FIRST RESPONDENT

THE ENFORCEMENT COMMITTEE
SECOND RESPONDENT

THE MINISTER OF FINANCE (RSA)
THIRD RESPONDENT

Neutral citation:  Pather v Financial Services Board (866/2016) [2017] ZASCA 125 (28
September 2017)

Bench:
Ponnan, Cachalia and Tshiqi JJA and Lamont and Rogers AJJA

Heard:
24 August 2017

Delivered:
28 September 2017

Summary:
Securities Services Act 36 of 2004 – proceedings before enforcement
committee – not in the nature of criminal proceedings – civil standard of proof applies –
administrative penalties imposed by enforcement committee – not in the nature of a
penal sanction.

_____________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Gauteng Local Division, Pretoria (Kgomo J sitting as court of first
instance):

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

JUDGMENT
______________________________________________________________________

Ponnan JA (Cachalia and Tshiqi JJA and Lamont and Rogers AJJA  concurring):

[1] During 2005, the Directorate of Market Abuse (the DMA) conducted an
investigation in terms of s 83(1) of the Securities Services Act 36 of 2004 (the Act) into
the conduct of the two appellants – the first of whom, Mr Maslamony Pather, is the chief
executive officer of the second, Ah-Vest Limited (formerly All Joy Foods Limited), which
since 2004 has been listed on the alternative exchange of the Johannesburg Securities
Exchange. At that stage, Mr Cedric Carroll, a former financial director of All Joy, was
also subject to scrutiny by the DMA, but his whereabouts subsequently became
unknown and the action against him was accordingly discontinued. Between November
2006 and May 2007 a number of persons, including Mr Pather, were interrogated under
oath in terms of s 82 of the Act by the first respondent, the Financial Services Board
(the FSB).1 The investigation concluded that ‘All Joy, Pather and Carroll [had]
contravened s 76 of the [Act]’. In consequence, two counts of alleged contraventions of
that section on the part of both appellants were referred to the second respondent, the
Enforcement Committee (the EC), in terms of s 94(e) of the Act.

1 The FSB is an independent body established by the Financial Services Board Act 97 of 1990 (the FSB
Act) to oversee the South African non-banking financial services industry in the public interest.

[2] The contraventions referred to the EC were:
‘Count 1
During April 2005, for the purpose of the audit of the company’s accounting records in
preparation of its financial statements for the year ending 28 February 2005, the appellants,
through the records, represented to the auditors that portion of the recorded credit sales
transactions to the value of R830 486 18 were genuine transactions concluded in the normal
course of business when they knew or ought reasonably to have known that the representation
was false, misleading or deceptive in that these were fictitious transactions which resulted in
credit sales and accounts receivable being overstated by the sum in question.
Count 2
On 31 May 2005 the appellants caused the financial statements for the 2005 year to be
published on the Stock Exchange News Service (SENS) which they knew or ought to have
known were false, misleading or deceptive in overstating
1.
Trade and other receivables by R1 633 377,
2.
Capital and reserves after tax by R1 007 023 and
3.
Profit after tax by R295 747.’

[3] The matter was enrolled to be considered by the EC in July 2009. The EC,
chaired by Justice Eloff, found that ‘it was established on a balance of probability that
Pather authorised the manipulations, and participated with Carroll in “cooking the
books” of the company’. On 7 September 2009 the EC arrived at the following
conclusion:
‘In our judgment the administrative penalty on the company in count 1 should be R500 000.00.
The administrative penalty imposed on Mr Pather on count 1 should likewise be R500 000.00.
In regard to count 2, the administrative penalty imposed on the company is R1 million and the
administrative penalty imposed on Mr Pather personally is R1 million.’
The appellants appealed the decision in terms of s 111 of the Act to the Board of Appeal
established under s 26 of the Financial Services Board Act 97 of 1990 (the FSB Act).
On 16 August 2010 the Board, chaired by Justice Howie, confirmed the EC’s decision.

[4] On 6 October 2010 the appellants applied to the North Gauteng High Court,
Pretoria for an order in the following terms:

‘1.
Declaring that the Enforcement Committee had no jurisdiction to make the decision that
the applicants contravened s 76 of the Act (as amended by the Financial Services Laws
General Amendment Act 22 of 2008) by operation of s 79 of the Act, alternatively by operation
of the doctrine of ultra vires;
2.
Reviewing and setting aside the decision of the Enforcement Committee that the
applicants contravened s 76 of the Act as ultra vires and incompetent;
3.
In the alternative, reviewing and setting aside the decision that the applicants
contravened s 76 of the Act for the reason that the Enforcement Committee applied the
incorrect standard of proof;
4.
In the further alternative, declaring that s 102 to 105 of the Act are unconstitutional in
relation to conduct under s 76 inasmuch as a finding that conduct contravened s 76 of the Act is
akin to a finding of criminal guilt, which finding only a court of law is competent to make;
5.
Declaring that the costs of this application be paid jointly and severally by such of the
respondents who oppose the relief; and
6.
Granting the applicant such further and/or alternative relief as this court may deem
appropriate.’
In addition to the FSB and EC, who were cited respectively as the first and second
respondents, the Minister of Finance (the Minister) was cited as the third. Kgomo J
dismissed the application, but granted leave to the appellants to appeal to this court. It
is noteworthy that the factual findings made by the EC and the Board against the
appellants were not challenged in the court a quo or in this appeal.

[5] Three contentions were advanced on behalf of the appellants on appeal, namely:
first, the court below erred in finding that the civil standard of proof is applicable to
proceedings before the EC, which are criminal or, at least, quasi-criminal in nature;
second, the court below erred in concluding that the EC did have jurisdiction to make
the findings that it purported to make against the appellants under s 76 of the Act: and,
third, in the alternative to the two grounds, the court below erred in not finding ss 102 to
105 of the Act unconstitutional.

[6] The prohibition against insider trading was first introduced into our law in 1973
by the Companies Act 61 of 1973. But, as the King Task Group observed in its Final
Report on Insider Trading Legislation dated 21 October 1997, there had not been a

single prosecution since the introduction of the prohibition. The Task Group accordingly
recommended that insider trading should be regulated under a separate statute outside
of the Companies Act. In the result, the Insider Trading Act 135 of 1998 (the ITA) was
enacted on 17 January 1999. It established an Insider Trading Directorate and
empowered the FSB to bring a statutory civil action before the high court for a civil
penalty. The FSB could sue an alleged offender for the profits made or the losses
avoided as a result of the offending transactions, plus a penalty of up to three times the
amount. The ITA also created a mechanism to distribute the funds recovered from a
successful action to persons who had been prejudiced by the insider trading. In 2005,
the ITA was repealed and replaced by the Act, which replaced the Insider Trading
Directorate with the DMA and extended its jurisdiction to cover three forms of market
abuse, namely insider trading,2 market manipulation3 and false statements.4 It also
created the EC and empowered it to impose administrative penalties.

[7] The Act was amended by the Financial Services Laws General Amendment Act
22 of 2008 (the Amendment Act), which came into force on 1 November 2008. The
Amendment Act expanded the ‘administrative penalties’ model. It did so primarily by
introducing ss 6A to 6I into the Financial Institutions (Protection of Funds) Act 28 of
2001 (the FI Act). In terms of those amendments, the original EC was replaced by a
new EC, created in terms of a new s 10(3) of the FSB Act, the main difference between
the two being that the new EC has jurisdiction to deal with contraventions of, or non-
compliance with, all FSB-administered legislation.5  There are also some changes in the

2 Sections 73 and 74.
3 Section 75.
4 Section 76.
5 Section 6A(1)(a) of the FI Act provides: ‘Despite anything to the contrary in any other law, if a registrar is
of the opinion tht a person has contravened a provision of a law in respect of which the registrar is not
authorized to impose a penalty or a fine, the registrar may refer the alleged contravention to the
enforcement committee.’
According to s 1 of the FI Act:
‘Law’, for the purposes of s 6, means –
‘(i) this Act;
(ii) the Financial Services Board Act, 1990;
(iii) the Inspection of Financial Institutions Act, 1998 (Act 80 of 1998);
(iv) the Financial Services Ombud Schemes Act, 2004 (Act 37 of 2004);
(v) an Act referred to in the definition of ‘financial institution’ in s 1 of the Financial Services Board Act,
1990;
(vi) the Medical Schemes Act, 1998 (Act 131 of 1998), and any subordinate legislation, enactment or

procedure to be followed by the EC. In what follows, references to the EC are to the
body created by and functioning under the Act, ie prior to the coming into force of the
Amendment Act. It became common cause at the hearing of the appeal that the
Amendment Act did not apply to the EC’s consideration of the complaints against the
appellants. I shall accordingly refer to the repealed provisions of the Act in the present
tense since they reman applicable to the determination of this appeal.

[8] Prior to the legislative reforms brought about by the Act, the regulatory
framework provided for only three enforcement tools, namely registrars’ financial
penalties, the withdrawal of the approval or licence of the transgressor and criminal
prosecution of the wrongdoer. That regulatory scheme only catered, on the one hand,
for very minor transgressions and, on the other, for major fraud-type events. It followed
that most contraventions that fell in between those two extremes did not have
appropriate enforcement mechanisms.

[9] The mischief with which the Act seems principally concerned is protecting the
public and promoting confidence in the market. That finds expression in s 2(a) of the
Act, which describes the purposes of the Act, inter alia, as being to increase confidence
in South African financial markets by: (a) requiring financial services to be provided in a
fair efficient and transparent manner; and (b) contributing to the maintenance of a stable
financial market environment. The Act empowers the DMA to investigate contraventions
and to refer them to the EC, which the latter is statutorily obliged to consider in the
manner prescribed by s 102. As appears from subsections (1) to (3) of s 102, the EC is
obliged to determine matters on the basis of an assessment of the documentary
evidence submitted to it by the DMA. According to s 99(1), if the DMA refers a matter to
the EC under s 94, the latter must deal with it in accordance with ss 102 to 105, to the
extent that those sections are applicable to the matter in question. In terms of s 102(1),
the referral of a matter to the EC must be accompanied by a report on the investigation
and by all other evidence relevant to the alleged contravention or failure, in the
possession of the registrar or the DMA. The EC must serve a copy of that report and

measure made under these Acts.’

evidence on the respondent and direct such respondent to respond thereto by way of
affidavit.6 Section 102(3) provides that the panel of the EC ‘. . . must consider the
documentary evidence before it without hearing further evidence, subject to subsection
(4)’. According to subsection (4), the panel ‘may, in exceptional circumstances and
when it is necessary to come to a just decision’ summon a person to appear before it to
be questioned or to produce a document.

[10] The Act recognises that a single act may give rise to more than one
consequence. Ordinarily, the purpose of an administrative penalty is to ensure
compliance with the legislation and to give the regulatory authority an effective means of
enforcing it. Contraventions have to be discouraged and offences punished for the
system to be viable. In addition to the fact that the penalty itself is described as an
‘administrative penalty’, the following are important pointers against the appellants:
First, s 112 of the Act explicitly distinguishes between ‘civil, criminal, administrative or
disciplinary proceedings under this Act’. Second, s 104(3) provides that if the
respondent concerned fails to pay the administrative penalty, the DMA may file with the
clerk or registrar of any competent court a certificate stating the amount of the penalty
imposed, which then ‘has all the effects of a civil judgment lawfully given in that court in
favour of the Board’. Third, ss 104(6)7 and (7)8 draw a clear distinction between a
penalty imposed by the EC in terms of s 104 and criminal proceedings. Fourth, s
104(8)9 expressly provides that an administrative penalty does not constitute a ‘previous
conviction’. These regulatory provisions are collateral to the other provisions of the Act
and whilst some have a punitive aspect they are not criminal or quasi criminal in nature.

[11] An effective and credible financial regulatory system must be capable, at least in
its design, to produce reasonably speedy results. Relative to the courts, the process

6 Section 102(2).
7 Section 104(6) reads: ‘The enforcement committee may not impose a penalty contemplated in this
section if the respondent has been charged with a criminal offence in respect of the same set of facts.’
8 Section 104(7) reads: ‘If a court assesses the penalty to be imposed on a person convicted of an
offence in terms of this Act, the court must take into account any administrative penalty imposed under
this section or s 103(1)(a) in respect of the same set of facts.’
9 Section 104(8) reads: ‘An administrative penalty imposed and paid in terms of this section does not
constitute a previous conviction as contemplated in Chapter 27 of the Criminal Procedure Act.’

adopted by the EC is informal and inexpensive. The Act contemplates that the EC shall
be staffed with personnel with specific knowledge and experience in law, as well as the
subject matter under consideration.10 Further, its proceedings must be open to the
public11 and any decision must be by majority, in writing and include reasons.12
Furthermore, s 102(5) affords a respondent the right to be legally represented when
summoned to appear in person before the panel envisaged by s 105(4).  The EC does
not fall under the control of the FSB. The DMA is generally represented in proceedings
before the EC (and the Appeal Board) in the same manner as the respondent to the
proceedings is. A person aggrieved by a decision of the EC has a right of appeal to the
Appeal Board, which is staffed by at least two advocates or attorneys with a minimum of
ten years’ experience or judges.13 The powers of the EC and Appeal Board are limited
to the imposition of a monetary penalty. They do not include the power to impose
imprisonment or indeed any form of deprivation of liberty. What is more, those
proceedings are susceptible to review by a court inter alia on the ground that the
monetary penalty is unreasonably high or severe.

[12] Whilst the meaning of the Act must ordinarily be found within its four corners,
some guidance, say the appellants, can be derived from foreign jurisprudence. The
appellants accordingly seek to avoid the consequences of the analysis that the lawgiver
had in mind administrative – not criminal – proceedings before the EC by various
arguments based principally on foreign authorities. They invoke Davidson & Tatham v
Financial Services Authority14 – a decision by the United Kingdom Financial Services
and Markets Tribunal (FSMT) – regarding the determination of administrative penalties.
Although the Tribunal determined that the penalties for the market abuse were criminal
charges for the purposes of article 6 of the European Convention on Human Rights (the
Convention), it held that the civil – not criminal – standard applied.15

10 Sections 98(1) and (2).
11 Section 100(3).
12 Sections 100(4) and (5).
13 Section 26A(2)(a) of the FSB Act.
14 Davidson & Tatham v Financial Services Authority [2006] UKFSM 31.
15 Ibid para 197.

[13] The appellants also rely on the jurisprudence of the European Court of Human
Rights (EHHR), the Hong Kong Court of Final Appeal and the decision of the England
and Wales Court of Appeal in Han v Customs and Excise Commissioners.16  In Han, the
court held that the imposition of penalties pursuant to the provisions of the VAT Act
1994 gave rise to criminal charges within the meaning of article 6 of the Convention. In
arriving at that conclusion the court applied the United Kingdom Human Rights Act 1998
(HRA). Article 6 is a ‘Convention right’ within the meaning of s 1 of the HRA. In terms of
s 2(1) of that Act, ‘[a] court or tribunal determining any question which has arisen in
connection with a Convention right must take into account any judgment, decision,
declaration or advisory opinion of the [EHHR]’. Article 6(1) of the Convention provides:
‘In the determination of his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law.’  Article 6(2)17 enshrines the
presumption of innocence in criminal matters. Article 6(3)18 provides further ‘minimum
rights’ for those facing criminal charges.

[14] However, the case law of the EHHR makes clear that the concept of a ‘criminal
charge’ under article 6 has an ‘autonomous’ Convention meaning.19 Three criteria are
applied by the EHHR in order to determine whether proceedings are criminal: first, the
classification of the proceedings in domestic law; second, the nature of the offence; and
third, the nature and degree of the severity of the penalty that the person concerned

16 Han v Customs and Excise Commissioners [2001] EWCA Civ 1040.
17 Article 6(2) enshrines the presumption of innocence in criminal matters as follows:
‘Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to
law.’
18 Article 6(3) provides further ‘minimum rights’ for those facing criminal charges as follows:
‘Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of
the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of
witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in
court.’
19 Engel & others v The Netherlands [1976] 1 EHHR 647 para 81.

risks incurring.20 The EHHR ‘does not in practice treat these three requirements as
analytically distinct or as a ‘three stage test’, but as factors to be weighed together in
seeking to decide whether, taken cumulatively, the relevant measure should be treated
as “criminal”.’21 In determining whether an individual is the subject of a criminal charge,
the first criterion, namely the categorisation of the allegation in domestic law, is no more
than the starting point and is not decisive of the enquiry.22  A finding that the
proceedings are classified as criminal in domestic law is likely to be conclusive.23 If the
offence, the subject of the allegation, is not criminalised by national law, the court
proceeds to determine whether it is nonetheless criminal in character for the purposes
of article 6 by proceeding to the second and third criteria.24 In the context of disciplinary
proceedings, the EHHR has placed great emphasis on the seriousness of the penalty
for holding the proceedings criminal rather than disciplinary.25 It bears emphasis that the
treatment of the categorisation of the allegation in domestic law merely as a starting
point largely renders irrelevant the rationale underlying a national law which seeks to
decriminalise conduct.26

[15] The principal questions in Koon Wing Yee v Insider Dealing Tribunal27 were
whether articles 10 and 11 of the Hong Kong Bill of Rights28 applied to proceedings
before the Insider Dealing Tribunal and if so, whether, inter alia, the standard of proof
applied by the Tribunal complied with these provisions. The provisions of articles 10 and
11 are in the same terms as articles 14(1), (2) and (3)(g) of the International Covenant

20 AP, MP & TP v Switzerland [1998] 26 EHRR 541 para 39.
21 Engel supra fn 17 para 26.
22 Ibid para 65.
23 Regina (McCann & others) v Crown Court at Manchester and another [2002] UKHL 39 para 57D.
24 Han supra fn 16 para 65.
25 Ibid para 67.
26 Ibid para 68.
27 Koon Wing Yee v Insider Dealing Tribunal [2008] HKCFA 21.
28 Article 10 of the Bill of Rights provides: ‘ In the determination of any criminal charge against him, or of
his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law.’
Article 11 provides:
‘(1) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved
guilty according to law;
(2) In the determination of any criminal charge against him, everyone shall be entitled to the following
minimum guarantees, in full equality –
. . .
(g)
not to be compelled to testify against himself or to confess guilt.’

on Civil and Political Rights (ICCPR).29 Neither the Convention nor the ICCPR explicitly
mandate a specific standard of proof.30 The court held that the Tribunal’s findings were
‘impaired’, inter alia, because of a failure to apply the criminal standard of proof.
Importantly, that conclusion was preceded by a finding that the proceedings before the
Tribunal involved the determination of a criminal charge. It thus stood to reason that the
applicable standard would have had to be the criminal standard of proof. The court had
regard to the principles enunciated by the EHHR in relation to article 6 of the
Convention and applied by UK Courts in the interpretation and application of the HRA.
The decisions of those courts on provisions which were the same as (or similar to) the
Hong Kong Bill of Rights, so observed the court, were of high persuasive authority. In
arriving at its conclusion, reliance was also placed by the court on a general comment
by the United Nations Human Rights Committee relating to article 14 of the ICCPR.31

[16] Following Han and McCann, the Hong Kong Court of Final Appeal took the view
that ‘if the proceedings are classified as civil in domestic law, that, though important, is
by no means conclusive because the second and third criteria are more significant’.32
Under the second criterion, so said Potter LJ in Han:33
‘[T]he court considers whether or not, under the law concerned, the “offence” is one which
applies generally to the public at large or is restricted to a specific group. If the former, then
despite its “de-criminalisation” by the national law, it is apt to be regarded as criminal. Further, if
a punitive and deterrent penalty is attached, it is likely to be regarded as criminal in character,
even in cases where the penalty is in the nature of a fine rather than imprisonment. On the other
hand, where the offence is limited to a restricted group, as is generally the case in relation to
disciplinary offences, the court is unlikely to classify a charge under the applicable disciplinary
or regulatory code as criminal, at least unless it involves or may lead to loss of liberty.’

29 Koon Wing Yee supra fn 25 para 24.
30 Ibid para 91.
31 In that regard para 65 of the judgment reads: I note that para 15 of General Comment No 32, published
by the United Nations Human Rights Committee (‘the Committee”) at its 90th session in July 2007, relating
to article 14 of the ICCPR (article 10 and 11 of the Bill of Rights), stated: “Criminal charges relate in
principle to acts declared to be punishable under domestic criminal law. The notion may also extend to
acts that are criminal in nature with sanctions that, regardless of their qualification in domestic law, must
be regarded as penal because of their purpose, character or severity.”’
32 Koon Wing Yee supra fn 25 para 35.
33 Han supra fn 16 para 66.

[17] The court in Koon Wing Yee did caution that the EHHR’s ‘jurisprudence is fact-
sensitive so that it is hazardous to apply decisions of that Court to facts which are
different’.34  It must be appreciated that:
‘The fair trial guarantee under article 6(1) applies to both “the determination of a (person’s) civil
rights” and “the determination of any criminal charge”. On the other hand, only the latter attract
the additional protections under article 6(2) and 6(3). In so far as the latter provisions apply to
“everyone charged with a criminal offence” it is well established in the jurisprudence of the
European Court of Human Rights that this concept is co-extensive with the concept of the
determination of any criminal charge.’35
Moreover, as Lord Bingham of Cornhill CJ pointed out in B v Chief Constable of Avon:36
‘I am aware of no case in which the European Court has held a proceeding to be
criminal even though an adverse outcome for the defendant cannot result in any penalty.’
The fact of the matter therefore is that decisions of the EHHR are not a safe guide for
us. It follows that properly analysed this line of authorities does not assist the appellants’
case.

[18] Neither the courts in the United States nor Canada appear to support the
appellants’ contention that proceedings before the EC are criminal or quasi criminal in
character. The leading case in the United States is Hudson v United States.37 There,
monetary administrative penalties and occupational debarment were imposed for the
violation of federal banking statutes. Thereafter, criminal proceedings were also
instituted. The US Supreme Court held that the double jeopardy clause was not a bar to
the criminal prosecution because the administrative proceedings were not criminal.38
The court stated:
‘Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory
construction . . . A court must first ask whether the legislature, ‘”in establishing the penalizing
mechanism, indicated either expressly or impliedly a preference for one label or the other.” . . .
Even in those cases where the legislature “has indicated an intention to establish a civil penalty,
we have inquired further whether the statutory scheme was so punitive either in purpose or

34 Koon Wing Yee supra fn 25 para 28.
35 Regina (McCann & others) supra fn 21 at 21.
36 B v Chief Constable of Avon [2011] 1 WLR 340 para 28.
37 Hudson v United States 522 US 93 (1997).
38 The Double Jeopardy Clause provides that no ‘person [shall] be subject for the same offence to be
twice put in jeopardy of life or limb’.

effect,” . . . as to “transfor[m] what was clearly intended as a civil remedy into a criminal
penalty”.’

[19] Hudson, inter alia, observed that: (a) it had long recognised that the double
jeopardy clause does not prohibit the imposition of all additional sanctions that could in
common parlance be described as punishment; (b) all civil penalties have some
deterrent effect; (c) the due process and equal protection clauses already protect
individuals from sanctions which are down-right irrational; (d) that the authority to
impose administrative penalties is conferred upon administrative agencies, is prima
facie evidence that Congress intended to provide for a civil sanction; (e) quintessential
criminal punishments may be imposed only ‘by a judicial trial’; (f) while the petitioners
have been prohibited from further participating in the banking industry - that is certainly
nothing approaching the ‘infamous punishment of imprisonment’; and (g) ‘only the
clearest proof’ will suffice to override legislative intent and transform what has been
denominated a civil remedy into a criminal penalty.

[20] In Canada, the jurisprudence on the distinction between criminal and
administrative proceedings was articulated in R v Wigglesworth39 and Martineau v
MNR.40 In the latter case, a customs officer had demanded, by way of a written notice
served pursuant to the Customs Act, that the appellant pay $315 458, being the
deemed value of the goods he allegedly attempted to export by making false
statements. This set in motion a process referred to as ‘ascertained forfeiture’. The
Canadian Supreme Court had to consider whether the appellant may, in the course of
an action under the Customs Act, avail himself of the right against self-incrimination
guaranteed by s 11(c) of the Canadian Charter of Rights and Freedoms (the Charter).41
In dismissing his appeal the court pointed out that a distinction must be drawn between
penal proceedings on the one hand and administrative proceedings on the other. Only
penal proceedings, so observed the court, attracted the application of s 11 of the
Charter.

39 R v Wigglesworth [1987] 2 SCR 541.
40 Martineau v MNR [2004] 3 SCR 737.
41 Section 11(c) provides that a ‘person charged with an offence’ cannot be compelled to be a witness ‘in
proceedings against that person in respect of the offence’.

[21] More recently, Guindon v Canada42 affirmed the tests developed in the earlier
cases. The appellant, Ms Guindon, was assessed penalties totalling $546 747 under
s 163.2(4) of the Income Tax Act RSC 1985 arising from certain false statements made
by her. She asserted that the penalty imposed under the section was criminal and that
she was therefore a person ‘charged with an offence’ who is entitled to the procedural
safeguards enshrined in s 11 of the Charter. In dismissing her appeal, the court held
that the proceedings were of an administrative nature and that Ms Guindon therefore
was not a person ‘charged with an offence’ and accordingly the protections under s 11
of the Charter did not apply. In arriving at that conclusion the court explained that an
individual is entitled to the procedural protections of s 11 of the Charter where the
proceeding is, by its very nature, criminal, or where a ‘true penal consequence’ flows
from the sanction. The court expatiated: (a) A proceeding is criminal by its very nature
when it is aimed at promoting public order and welfare within a public sphere of activity.
Proceedings of an administrative nature, on the other hand, are primarily intended to
maintain compliance or to regulate conduct within a limited sphere of activity.43 (b) A
‘true penal consequence’ is ‘imprisonment or a fine which by its magnitude would
appear to be imposed for the purpose of redressing the wrong done to society at large
rather than to the maintenance of internal discipline within [a] limited sphere of
activity’.44 (c) The criminal in nature test asks whether the proceedings by which a
penalty is imposed are criminal. The test is not concerned with the nature of the
underlying act, but the nature of the proceedings themselves’.45

[22] The first issue raised by the appellants cannot be answered without examining
the nature and purpose of criminal proceedings. In the words of Lord Steyn ‘[t]he aim of
criminal law is not punishment for its own sake but to allow everyone to go about their
daily lives without fear of harm to person or property’. ‘Criminal law’, observed Lord
Atkin, ‘connotes only the quality of such acts or omissions as are prohibited under
appropriate penal provisions by authority of the state. The criminal quality of an act

42 Guindon v Canada 2015 SCC 41.
43 Ibid para 25.
44 Ibid para 46.
45 Ibid para 51.

cannot be discerned by intuition; nor can it be discovered by reference to any standard
but one: is the act prohibited with penal consequences?’46 And, criminal proceedings,
according to Lord Bingham of Cornhill CJ, ‘involve a formal accusation made on behalf
of the state or by a private prosecutor that a defendant has committed a breach of the
criminal law, and the state or the private prosecutor has instituted proceedings which
may culminate in the conviction and condemnation of the defendant.’47

[23] In the proceedings before the EC, neither the police nor the prosecutorial
authority is involved at all. That the facts underpinning the complaint can as well give
rise to a criminal offence does not alter the nature of the complaint before the EC. The
EC is primarily concerned with the exercise of a disciplinary power in respect of a
limited group of persons possessing a special status.48 There is no formal accusation of
a breach of the criminal law. The proceedings are initiated by way of a complaint by the
DMA to the EC, not a criminal charge. In Martineau49 the court observed:
‘This process thus has little in common with penal proceedings. No one is charged in the
context of an ascertained forfeiture. No information is laid against anyone. No one is arrested.
No one is summoned to appear before a court of criminal jurisdiction. No criminal record will
result from the proceedings. At worst, once the administrative proceeding is complete and all
appeals are exhausted, if the notice of ascertained forfeiture is upheld and the person liable to
pay still refuses to do so, he or she risks being forced to pay by way of civil action’.
Those considerations find equal application here.

[24] Moreover, sight cannot be lost of the fact that criminal prosecutions come with
many challenges. First, the responsibility for the prosecution lies with the National
Directorate of Public Prosecutions, not the regulatory authorities, such as the FSB.
Given an already overburdened prosecutorial staff, such contraventions generally do
not enjoy priority and the regulator, as complainant, has to stand in line with many other
complainants. Second, a criminal prosecution can be both time-consuming and fraught
with difficulty and the prosecuting authority may not always possess the necessary

46 Proprietary Articles Trade Association v Attorney General for Canada [1931] AC 310, 324.
47 Customs and Excise Comrs v City of London Magistrates’ Court [2000] 1 WLR 202, 2025.
48 As it was put in in McCann:  ‘Where a limited group of persons possessing a special status is involved
the conclusion is more readily drawn that the proceedings are disciplinary’.
49 Martineau supra fn 37 para 45.

expertise. Third, the stigma attached to a criminal conviction will often mean that
industry professionals are likely to vigorously contest even relatively minor
contraventions. Fourth, a criminal prosecution may not be a suitable enforcement option
in respect of some less serious contraventions, especially those where an industry
player simply failed to adhere to the rules, as opposed to committing an offence which is
truly deserving of a criminal sanction.

[25] Accordingly, for all of the reasons given I take the view that proceedings before
the EC do not lie within the criminal sphere and cannot be classified as being criminal in
nature. The court below was accordingly correct in holding that the EC, when imposing
administrative penalties ‘decidedly remains administrative’. Its conclusion in this regard
is consistent with decisions in this country by the Competition Appeal Court,50 Tax
Court51 and Labour Court.52

[26] Underlying the question of the characterisation of the nature of the proceedings,
are two further contentions advanced on behalf of the appellants: first, if the
proceedings before the EC are not to be regarded as criminal, it is a civil proceeding of
such a character that the criminal standard of proof should be applied; and, second, the
proceedings before the EC may result in a penalty or have a true penal consequence.

50 In Federal Mogul Aftermarket Southern Africa (Pty) Ltd v Competition Commission & another 2005 (6)
BCLR 613 (CAC) the court found that s 35(3) of the Constitution is not applicable to the imposition of
administrative penalties under the Competition Act. Section 59 provides that the Competition Tribunal
may impose an administrative penalty for certain specified offences created by the Competition Act.
51 In Case No 11641 [2007] JOL 19881 (ITC) the Tax Court held that additional tax imposed under s 76(1)
of the Income Tax Act No 58 of 1962 is a penalty of an administrative nature which cannot be equated
with a fine imposed by a criminal court.
52 In Director-General, Department of Labour v Win-Cool Industrial Enterprises (Pty) Ltd 2007 28 ILJ 1774
(LC) the court had to consider the imposition of penalties for the contravention of the affirmative action
provisions of the Employment Equity Act No 55 of 1998 (EEA). The court concluded that: the relevant
provision does not create an offence but a contravention for which a penalty is payable; the department
bears the civil standard of proving all the elements of the contravention on a balance of probabilities; and,
civil procedure for enforcement was justifiable taking into consideration our constitutional values and the
purpose of the affirmative action provisions in the EEA and the scheme adopted to implement and
enforce them.

As to the first:
[27] The appellants place great store by the judgment of this court in Fakie N.O. v
CCII Systems (Pty) Ltd.53 That case concerned the standard to be applied by a court in
determining whether or not to order the imprisonment of a person alleged to be in
contempt of a civil court order. This court accepted that although the respondent was
not an ‘accused person’ for the purposes of s 35 of the Bill of Rights,54 the protection
afforded by s 12 of the Bill of Rights ‘not to be deprived of freedom arbitrarily or without
just cause’55 required proof beyond reasonable doubt before imprisonment for contempt
could be ordered.56 This is consistent with the approach adopted in In re Bramblevale
Ltd.57 There the Court of Appeal decided that to establish a civil contempt of court, proof
beyond a reasonable doubt was required. This was because imprisonment might result.
The court pointed out that ‘the order is made to uphold the peace and so one is
immediately in the realm of law enforcement in the public rather than a private interest’.
Unlike Fakie and In re Bramblevale Ltd, the present matter raises no ‘liberty’ issue.
According to the Supreme Court of Canada, ‘imprisonment is always a true penal
consequence.58 A provision that includes the possibility of imprisonment will be criminal
no matter the actual sanction imposed.’ Here, there is no freedom interest at stake
inasmuch as the EC has no power to order the imprisonment of the appellants.
Accordingly this matter is entirely distinguishable from Fakie.

[28] Section 104 of the Act provides that ‘if a panel is satisfied that a respondent has
contravened or failed to comply with the Act’, it must impose an ‘administrative penalty’.
The appellants’ argument that the EC is obliged to apply the ‘criminal yardstick is, in
effect, an argument that the phrase ‘is satisfied’ must be interpreted to mean ‘is satisfied
beyond a reasonable doubt’.

[29] To be sure, a generous degree of flexibility is built into the probability standard.
The civil standard of proof does not necessarily mean a bare balance of probability. The

53 Fakie N.O. v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA).
54 Ibid at 339 B-C.
55 Ibid at 339 C-D.
56 Ibid at 342B.
57 In re Bramblevale Ltd [1970] Ch 128.
58 Guindon supra fn 39 para 75.

inherent probability or improbability of an event is a matter to be taken into account
when the evidence is assessed. When assessing the probabilities a court will have in
mind that the more serious the allegation, the more cogent will be the evidence
required.  As long ago as 1939, Watermeyer JA in Gates v Gates,59 put the position
thus:
‘Now in a civil case the party, on whom the burden of proof (in the sense of what Wigmore calls
the risk of non-persuasion) lies, is required to satisfy the court that the balance of probabilities is
in his favour, but the law does not attempt to lay down a standard by which to measure the
degree of certainty of conviction which must exist in the court’s mind in order to be satisfied. In
criminal cases, doubtless, satisfaction beyond reasonable doubt is required, but attempts to
define with precision what is meant by that usually lead to confusion. Nor does the law, save in
exceptional cases such as perjury, require a minimum volume of testimony. All that it requires is
testimony such as carries conviction to the reasonable mind.
It is true that in certain cases more especially in those in which charges of criminal or
immoral conduct are made, it has repeatedly been said that such charges must be proved by
the “clearest” evidence or “clear and satisfactory” evidence or “clear and convincing” evidence,
or some similar phrase. There is not, however, in truth any variation in the standard of proof
required in such cases. The requirement is still proof sufficient to carry conviction to a
reasonable mind, but the reasonable mind is not so easily convinced in such cases because in
a civilised community there are moral and legal sanctions against immoral and criminal conduct
and consequently probabilities against such conduct are stronger than they are against conduct
which is not immoral or criminal.’

[30] The application of the ‘balance of probabilities’ standard of proof by a securities
commission exercising an ‘administrative penalty’ jurisdiction is accepted in Canada. In
Alberta Securities Commission v Brost, the Court of Appeal of Alberta observed that the
proceedings before the Securities Commission were regulatory not prosecutorial in
nature.60 The Commission applied the balance of probabilities standard of proof when it
considered the allegations against the appellants. In rejecting the argument that the
Commission could not reasonably make a determination of fraud if, on the evidence,
there was room for reasonable doubt, the court held; ‘[w]e disagree that this standard of

59 Gates v Gates 1939 AD 150 at 154-5.
60 Ibid para 36.

proof applies. We see no error in the Commission’s statement of the appropriate
standard’.61

[31] The same approach is followed in market abuse cases by the United Kingdom’s
FSMT. In Davidson v The Financial Services Authority62 the FSMT analysed the
authorities at length, including Han, and reached a conclusion strikingly similar to that of
Watermeyer JA in Gates v Gates:
‘We next ask how we should apply the civil standard of proof. In the light of all the authorities we
conclude that there is a single civil standard of proof on the balance of probabilities but that it is
flexible in its application. The more serious the allegation, or the more serious the
consequences if the allegation is proved, the stronger must be the evidence before we should
find the allegation proved on the balance of probabilities.’63
The FSMT affirmed this approach in Parker v The Financial Services Authority.64

[32] In my view, the phrase ‘is satisfied’ in s 104 of the Act is not reasonably capable
of being interpreted to require proof beyond a reasonable doubt. That is clearly not what
the provision expressly states and such a meaning, it seems to me, is also not
necessarily to be implied. There is also no reason why the Constitution would demand
that the phrase ‘is satisfied’ be interpreted as meaning ‘is satisfied on proof beyond
reasonable doubt’. Whilst the presumption of innocence enshrined in s 35 of the
Constitution requires that an ‘accused person’ cannot be convicted absent proof beyond
reasonable doubt, the appellants are not such persons. A respondent in EC
proceedings is not at risk of imprisonment or the deprivation of his or her liberty. The
consequences are similar to civil proceedings - the worst case scenario is the loss of
money or property. I accordingly hold that the applicable standard of proof is the civil
standard.

[33] Importantly, it is no part of the appellants’ case that the civil standard was
misapplied. Their case is that the criminal standard ought to have been applied. In this,

61 Ibid para 51.
62 Fn 14 above, paras 175-200.
63 Ibid para 198.
64 [2006] UKFSM 37 paras 13-23.

sight cannot be lost of the fact that it has been conceded before the EC that in respect
of: (a) count 1, the journal entries to the value of some R830 000 were false; and (b)
count 2, accounts receivable were overstated by R1 633 377, capital and reserves by
R295 747 and profits after tax by R295 747. Consequently, the profits after tax for the
previous financial year were also overstated by R711 276. Mr Pather maintained that
Carroll was responsible and that it was he alone who had contravened s 76 of the Act.
The EC did not agree. After an analysis of the evidence, it stated:
‘It needs to be added that at the very least it was firmly established that Pather ought to have
known of the manipulations of the books and documents of the company. He had, together with
the other directors, to be satisfied that the systems employed by the company, were reliable. He
knew that Carroll was unreliable. He knew that at the relevant time the company did not have an
audit committee. He should have known that the discounting system was at odds with the
records of the company.’
In that, the EC cannot be faulted. In any event, s 104(1) provides that a panel must
impose an administrative penalty if it ‘is satisfied’ that the respondent concerned has
contravened or failed to comply with the Act. Thus, provided the EC is ‘satisfied’ in a
manner which is not reviewable on any of the grounds provided for in s 6 of the
Promotion of Administrative Justice Act, 3 of 2000 (PAJA), it is a matter for the EC – not
a court – to decide whether the evidence before it is sufficiently cogent for it to be so
satisfied.

As to (b):
[34] This question looks to the nature of the penalty. The appellants contend that
notwithstanding the fact that the penalty does not constitute a deprivation of liberty, it is
intended to punish and deter in a manner characteristic of a criminal charge.  The issue
of whether a person, who is the subject of an ostensibly administrative regime, is in
reality ‘charged with an offence’ is addressed by the second test in Guindon - does the
sanction impose a true penal consequence?65 According to Guindon, a monetary
penalty may or may not be a true penal consequence. It will be so when it is, in purpose
or effect, punitive. That falls to be assessed by looking at considerations such as the
magnitude of the fine, to whom it is paid, whether it is determined by regulatory

65 Guindon supra fn 39 para 75.

considerations rather than principles of criminal sentencing and whether stigma is
associated with the penalty.66 This is not to say that very large monetary penalties
cannot be imposed under administrative monetary penalty regimes. Sometimes
significant penalties are necessary in order to deter non-compliance with an
administrative scheme67 and these have been upheld where it is demonstrated that the
penalty serves regulatory purposes.68 The relevant question is not the amount of the
penalty in absolute terms, it is whether the amount serves regulatory rather than penal
purposes.69 The fact that the penalty is intended to have a deterrent effect does not
mean it is not administrative in nature,70 because deterrence ‘may serve civil as well as
criminal goals’. Accordingly, to hold that the mere presence of a deterrent purpose
renders such sanctions ‘criminal’ for double jeopardy purposes would severely
undermine the Government’s ability to effectively regulate institutions.

[35] In Rowan v Ontario Securities Commission,71 the Court of Appeal for Ontario was
confronted with a challenge to the constitutionality of a provision that allowed the
Ontario Securities Commission to impose administrative monetary penalties. The
argument advanced was that because the maximum penalty of $1 million could be
imposed for each transaction in a single course of infractions, the potential size of the
penalty was so large as to amount to a penal sanction. In the result, so it was
contended, a party who was subject to such a penalty was a person ‘charged with an
offence’ within the meaning of s 11 of the Charter. The challenge failed. The court
held:72
‘Penalties at the level of $1 million almost certainly have a deterrent purpose, but that does not
make them penal in nature. As the Supreme Court of Canada held in Re: Cartaway Resources
Corp., 2004 SCC 26 [2004] 1 SCR 672, in carrying out the regulatory and preventative mandate
provincial securities commissions may legitimately consider deterrence when imposing a
monetary penalty’.

66 Ibid para 76.
67 Ibid para 77.
68 Ibid para 80.
69 Ibid para 81.
70 Ibid para 83.
71 Rowan v Ontario Securities Commission 2012 ONCA 208 (CanLII).
72 Ibid para 51.

[36] Little remains of second and third contentions. Both accordingly invite a brief
response.  As far as the second contention goes: the submission is that inasmuch as ss
102 to 105 of the Act empower the EC to impose a penalty, those provisions contravene
s 35(3) of the Constitution. Our Constitution deals separately in ss 33 and 35 with the
procedural guarantees applicable to administrative and criminal proceedings. The
former guarantees to everyone the right to administrative action that is lawful,
procedurally fair and reasonable. The latter grants to arrested, detained and accused
persons a range of fair trial rights.

[37] Given the conclusion to which I have already arrived that both the proceedings
before the EC and penalty imposed are administrative in nature, it follows that
constitutionality must be assessed with reference to s 33. The protection conferred by
the Constitution is that administrative decisions may be reviewed in a court on grounds
of unlawfulness, procedural unfairness or unreasonableness. These rights are fleshed
out in PAJA. Persons in the position of the appellants are given protection by s 33 and
PAJA, not s 35. The Canadian jurisprudence shows that persons subject to
administrative financial penalties for contraventions of securities laws are not persons
‘charged with an offence’ within the meaning of the opening words of s 11 of the
Canadian Charter of Rights and Freedoms. The same reasoning leads to the conclusion
that the appellants are not ‘accused persons’. Section 35(3) of the Constitution
accordingly has no application to them.

[38] Insofar as the third contention, namely that the EC lacked jurisdiction, is
concerned: Section 79(1) of the Act provides:
‘Only a High Court or a regional court has jurisdiction to try any offence referred to in s 73, 75
and 76 and to impose a penalty up to the maximum set out in s 115(a).’
According to s 115 of the Act,

‘A person who –
(a)
commits an offence referred to in s 73, 75 or 76 is liable on conviction to a fine not
exceeding R50 million or to imprisonment for a period not exceeding 10 years or to both such
fine and imprisonment; . . .’

[39] The appellants submitted that these sections mean that contraventions of, or
failures to comply with, s 76 can only be prosecuted in the High Court or a regional
court. Although the present appeal relates only to the jurisdiction of the EC in respect of
a contravention or failure to comply with s 76 (false statements), the appellants’
argument must logically apply as well to s 73 (insider trading) and s 75 (prohibited
trading practices). If that argument were correct, the EC would have no jurisdiction to
impose an administrative penalty for a contravention or failure to comply with any of
those sections. The power of a High Court or regional court ‘to try any offence referred
to in s 73, 75 and 76’ and to impose a fine as contemplated in s 115(a) does not imply
that the EC is precluded from imposing an administrative penalty for a contravention or
failure to comply with ss 73,75 or 76. The EC does not purport to, nor does it in fact, ‘try
an offence’ or for that matter impose a criminal penalty contemplated in s 115(a). The
criminal jurisdiction and the administrative penalty jurisdiction co-exist.

[40]  The appellants, rightly appreciating that they could not support an argument
which would render the EC provisions in the Act nugatory, contended that the exclusive
jurisdiction of the criminal courts in terms of s 76 does not apply to contraventions of the
(repealed) Insider Trading Act or the (repealed) s 440F of the Companies Act 61 of
1973 so that the EC would have jurisdiction in regard to these latter contraventions. This
argument presupposes that the lawmaker introduced the whole panoply of EC
provisions in the Act solely to deal with legacy contraventions under repealed
legislation. Apart from the absurdity of imputing such an intention to the lawmaker, the
argument overlooks that the Insider Trading Act itself contains in s 9 an exclusive
jurisdiction provision in identical terms to s 76, which would apply to legacy offences
governed by the Insider Trading Act. So if the appellant’s argument were right in relation
to s 76 of the Act, the argument would also apply to s 9 of the Insider Trading Act and
thus remove the EC’s jurisdiction in respect of legacy offences governed by the Insider
Trading Act.

[41] It follows that the appeal must fail and in the result it is dismissed with costs,
including the costs of two counsel.

_________________
V M Ponnan
Judge of Appeal

APPEARANCES:

For Appellants:

A Subel SC (with him J J Meiring)

Instructed by:

Stand Fanaroff & Associates, Johannesburg

Phatshoane Henney Inc, Bloemfontein

For First Respondent:

A Freund SC (with him C Tabata)

Instructed by:

Jay Mothobi Inc, Johannesburg

EG Cooper Majiedt Inc, Bloemfontein

For Third Respondent:

M Moerane SC (with him L Gcabashe SC and R Tshetlo)

Instructed by:

The State Attorney, Pretoria

The State Attorney, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

28 September 2017

STATUS

Immediate

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

Pather v Financial Services Board (866/2016) [2017] ZASCA 125 (28 September 2017)

Today the Supreme Court of Appeal (SCA) dismissed an appeal by the appellants against a
decision of the Gauteng Local Division, Pretoria, which dismissed with costs an application to
review and set aside decisions of the second respondent, the Enforcement Committee (the
EC) established in terms of the Securities Services Act 36 of 2004 (the Act).

During 2005, the Directorate of Market Abuse (the DMA) conducted an investigation in terms
of s 83(1) of the Act into the conduct of the two appellants – the first of whom, Mr Maslamony
Pather, is the chief executive officer of the second, Ah-Vest Limited (formerly All Joy Foods
Limited). The investigation concluded that the appellants had contravened s 76 of the Act. In
consequence two counts of the alleged contraventions of that section were referred to the
Enforcement Committee (the EC) which imposed an administrative penalty in the total amount
of R1.5 million on each of the appellants. The appellants later appealed the decision of the
EC to the Board of Appeal established in terms of the Financial Services Board Act. When
that appeal failed they applied to the High Court to review and set aside the decision of the
EC.

On appeal to the SCA three contentions were advanced on behalf of the appellants: first, that
the court below erred in finding that the civil standard of proof is applicable to proceedings
before the EC, which are criminal or, at least, quasi-criminal in nature; second, that the court
below erred in concluding that the EC did have jurisdiction to make the findings that it
purported to make against the appellants under s 76 of the Act: and, third, in the alternative to

the two grounds, that the court below erred in not finding ss 102 to 105 of the Act
unconstitutional.

The court dealt extensively with the first ground of appeal, holding that the legislative scheme,
foreign jurisprudence, and the nature of the proceedings supported the conclusion that
proceedings before the EC could not be classified as being criminal in nature, thus the civil
standard of proof applied. It also held that the penalties imposed by the EC are administrative
in nature. Given this conclusion, the court held that the constitutionality of the impugned
provisions were to be assessed in terms of s 33 of the Constitution. Relying on Canadian
jurisprudence, it concluded that the appellants were not ‘accused persons’ and that s 35(3) of
the Constitution accordingly had no application to them. In respect of the contention that the
EC lacked jurisdiction, the court reasoned that the power of a High Court to try any offence
referred to in ss 73, 75 and 76 of the Act and to impose a fine as contemplated in s 115(a)
does not imply that the EC is precluded from imposing an administrative penalty for a
contravention or failure to comply with the Act. It held that the criminal jurisdiction and the
administrative penalty jurisdiction of the EC co-exist in terms of the legislative scheme.