Trustco : URGENT APPLICATION – JSE HEADS OF ARGUMENT

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

	Case number: 2022-006399
In the matter between
TRUSTCO GROUP HOLDINGS LIMITED	Applicant
and
JSE LIMITED	First Respondent
FINANCIAL SERVICES TRIBUNAL	Second Respondent

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JSE'S HEADS OF ARGUMENT

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TABLE OF CONTENTS
Glossary ....................................................................................................................	3
Introduction ...............................................................................................................	4
The facts ...................................................................................................................	6
The timeline ..................................................................................................	16
Trustco must be held to the case it pleaded in its founding affidavit .......................	17
Res judicata bars Trustco asking for a second bite at interim relief ........................	18
Trustco does not meet the requirements for interim relief .......................................	27
Interim relief is incompetent: the horse has bolted and Trustco remains in
contempt of the Tribunal ...............................................................................	27
Interim relief is incompetent: Trustco does not meet the OUTA clearest-of-
cases test .....................................................................................................	29
Trustco does not have a prima facie right to interim relief ............................	30
Trustco does not show that it will suffer irreparable harm .............................	34
The balance of convenience weights against interim relief ...........................	35
Trustco already exhausted its alternative remedy in the proper forum .........	37
Conclusion ..............................................................................................................	38
Annexure: the JSE's response to the impermissibly raised review arguments in
Trustco's heads of argument ...................................................................................	39

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	GLOSSARY
-	The JSE's Restatement Decision: The JSE's decision, dated
	11 November 2020, that Trustco's financial statements do not comply with
	IFRS and must be restated.

• Trustco's First Reconsideration Application: Trustco's application to the Tribunal, dated 10 February 2021, asking the Tribunal to reconsider the JSE's Restatement Decision.
• The Tribunal's Dismissal of Trustco's First Reconsideration Application: the Tribunal's decision, dated 22 November 2021, dismissing Trustco's First Reconsideration Application.
• The JSE's Listing Suspension Decision: the JSE's decision, dated 14 February 2022, to suspend the listing of Trustco's shares on the JSE.
• Trustco's Second Reconsideration Application: Trustco's application to the Tribunal, dated 18 February 2022, asking the Tribunal to reconsider the JSE's Listing Suspension Decision.
• Trustco's Tribunal Interim Relief Application: Trustco's application to the Tribunal, dated 18 February 2022, asking the Tribunal for interim relief to prevent the JSE from suspending Trustco's listing on the JSE pending - Trustco's Second Reconsideration Application.

-	The Tribunal's Interim Relief Order: The Tribunal's decision, dated
	13 July 2022, dismissing Trustco's Tribunal Interim Relief Application.

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INTRODUCTION

1. This is a case about a company, Trustco, whose financial statements cannot be trusted. Trustco has contemptuously disobeyed the decisions of the JSE, exercising its statutory obligation to manage the financial market, and the Financial Services Tribunal. Trustco now turns to this court for assistance, on an urgent basis, after it has been refused the same relief by the Financial Services Tribunal. Trustco turns to this court in an effort to cure its contempt of the JSE's decision and the Tribunal's decision. Trustco attempts to smuggle this application in as urgent, but it knew it was going to face having its shares suspended in January unless it complied with the JSE's decision. This application is not urgent-it is simply the last roll of the dice in an extended strategy to avoid having to provide accurate financial information to the investing public.
2. Almost two years ago, the JSE decided that Trustco's financial statements do not comply with the rules of the game: a set of global accounting standards called the International Financial Reporting Standards, or IFRS for short. The JSE made its decision after considering expert input on IFRS, and after affording Trustco exhaustive opportunities to be heard. The JSE directed Trustco to correct (or restate, in accounting parlance) its financial statements.
3. Trustco then applied to the Financial Services Tribunal to reconsider the JSE's decision. The Tribunal, chaired by former Deputy President of the SCA, Justice Harms, dismissed Trustco's application.

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1. After Trustco still refused to restate its financial statements, the JSE exercised its statutory, discretionary, and polycentric power to suspend Trustco's listing on the JSE.
2. Still determined to avoid restating its financial statements, Trustco asked the Tribunal for, in effect, an interim interdict against the JSE's decision to suspend its listing. The chairperson of the Tribunal, 15-year veteran of the Constitutional Court, Justice Mokgoro, dismissed Trustco's application for interim relief.
3. Having struck out at the Tribunal, Trustco forum shops back to this Court to ask for the same interim relief. Res judicata stands in the way of Trustco's attempt to relitigate its application for interim relief. This sequel to its application for interim relief in the Tribunal should be dismissed for that reason alone. But even if Trustco somehow overcomes the high hurdle of res judicata, this application should be dismissed because Trustco does not make out a case for interim relief- neither on the strict, clearest-of-cases test set in OUTA, nor even on the ordinary requirements for interim relief.
4. Nothing compels Trustco to list its shares on the JSE. It is free to list its shares on another exchange- after all the JSE is not the only exchange in South Africa, and Trustco is in any event a Namibian company. Having elected to list its shares on the JSE, Trustco must follow the rules that the JSE sets, and it must follow the decisions of the regulatory bodies established by statute. To allow anything else undermines the rule of law, and that cannot be tolerated. And Trustco cannot, as it attempts to do, seek to enlist the assistance of this court to prop up its blatant undermining of the rule of law. Put simply-if Trustco