Two new Enforcement Decisions released by FST

The Financial Sector Conduct Authority (FSCA) has released two new Financial Services Tribunal (FST) decisions.

This is an application in terms of s 230 of the Financial Sector Regulation Act 9 of 2017 (FSRA). The applicant is Marcia Refiloe Ntobeng (Applicant). The Applicant is a former employee of Liberty Group Limited (FSP). The Applicant seeks reconsideration of the decision of the FSP to debar her dated 7 November 2018. In her grounds for the application for reconsideration, the Applicant stated that the debarment was unlawful, unreasonable and procedurally unfair in that the FSP did not give notice of its intention to debar her and also that the FSP failed to give grounds for the debarment. Thus in the circumstances, the application is concerned with the process and procedure that was followed when the Applicant was debarred.

FST ruled that the FSP has clearly failed to comply with the mandatory requirements of s 14(3) of the FAIS Act. The decision to debar the applicant is set aside and the matter is remitted to the FSP for further consideration.

M Mwale and another v The Prudential Authority and another

This case revolved around the reconsideration of a decision by the Prudential Authority ito s 83 of the Banks Act; conducting the business of a bank; GN 498 published in Government Gazette 17895 on 27 March 1997.

The origin of the impugned decision is to be found in s 12 of the South African Reserve Bank Act 90 of 1989, which provides that if the Governor or a Deputy Governor of the Reserve Bank has reason to suspect that anybody not registered as a bank or as a mutual bank, is carrying on the business of a bank or a mutual bank, he or she may direct the Registrar of Banks to cause the affairs or any part of the affairs of such party to be inspected by an inspector in order to establish whether or not the business of a bank or mutual bank, as the case may be, is being carried on by that party.

In summary the Tribunal stated that 'the ordinary rule is that a higher body is not entitled to interfere with the exercise by a lower body of its discretion unless it: failed to bring an unbiased judgment to bear on the issue; did not act for substantial reasons; exercised its discretion capriciously; or exercised its discretion upon a wrong principle. There is no reason why we should not apply the same approach during an application for reconsideration.'

The case was dismissed.