Secondary

FAIS Ombud

Appeal Board Halves Debarment Period

An appellant received an early Christmas box on 24 December when he appealed successfully against a five year debarment for failing to meet the personal character qualities of honesty and integrity.

The FSB debarred the appellant after his employer provided proof that fictitious business was submitted, and that there were discrepancies between an affidavit submitted in 2014, and a statement made to the Registrar later.

The appeal was against the debarment period of five years.

The Registrar submitted that if the Board orders a variation of the debarment period that such period should not be less than three years. The Registrar contended that the appellant’s misconduct was a serious transgression and that a period less than three years may in fact send the wrong message to the financial services community.

In its consideration of the appeal, the Board examined the extent to which the appellant had shown remorse.

The appellant admitted the wrongfulness of his conduct and expressed his regret for what he had done. This was highlighted in the fact that the appellant stated his preparedness to work only as a representative under someone else’s supervision and not to operate on his own. We were satisfied that the appellant showed remorse and that he appreciated the error of his ways.

The appellant’s personal circumstances were also taken into account, in particular the fact that the appellant is 53 years old and is the sole breadwinner who has no expertise in other fields outside of the financial services sector (from which he has been disbarred).

The Appeal Board also referred to a precedent:

In the matter of Pieter Labuschagne v the Registrar of Financial Services 3, reference was made to the decision in Swartzberq v Law Society, Northern Provinces 2008 (5) SA 322 (SCA) at p. 330 B-C. These authorities emphasize the importance of the transgressor’s appreciation of his or her wrongdoing:

“… it is for the appellant himself to first properly and correctly identify the defect of character or attitude involved and thereafter to act in accordance with that appreciation. For, until and unless there is such a cognitive appreciation on the part of the appellant, it is difficult to see how the defect can be cured or corrected …”

The appeal was upheld, and the period of sanction reduced from five years to two and half years calculated from date of the Registrar’s decision.

Please click here to download the Appeal Board decision.

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