High Court rules construction guarantees are insurance; FSCA's boundary vindicated

The Gauteng High Court interdicted Fusion Guarantees (Pty) Ltd from issuing construction guarantees, holding in a 23 March 2026 judgment (Elasah Risk Consultants v National Credit Regulator and Others) that such guarantees meet the definition of non-life insurance under the Insurance Act 18 of 2017: premiums paid, an undertaking triggered by an uncertain event, indemnification of loss. Fusion had argued its products were credit agreements under the National Credit Act. The court disagreed, and the FSCA's 9 April press release confirmed its enforcement posture against unregistered insurance business. The principle travels well beyond construction. Functional classification beats corporate structuring: registering under one regulator does not immunise a product that functions as another regulator's territory. Fintechs offering guarantee-like or indemnity-like products anywhere in South Africa's market should test them against function, not form.