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Can Appeal Board overrule FSB decision?

The recent Willbrink Outsources CC decision by the FSB Appeal Board assessed a rather novel approach to overturn a FSB decision.

The appeal was in respect of the Registrar’s decision to withdraw the appellant’s licence as he did not successfully complete his RE1 and RE5, and therefore did not meet the Fit & Proper requirements.

After allowing time to correct the contravention, the Registrar withdrew the appellant’s licence on 29 November 2016 as the issue had still not been corrected.

The FSP contracted with another Key Individual in March 2017, and requested the Appeal Board to consider a more lenient sanction, such as a reasonable fine, in view of the fact that the non-compliance had now been rectified.

The Appeal Board notes that no evidence was placed before the Registrar as to what attempts, if any, were made between March 2016, when the appellant was presumably informed of the Registrar’s intent to withdraw the authorization, and the actual withdrawal.

“The Registrar is obliged, in terms of Section 8(1) of the FAIS Act, to ensure that FSPs and their representatives are fully compliant with the provisions of the FAIS Act and other relevant legislation before authorization can be granted to operate in the industry. Furthermore, a key individual may not act as such unless an application by that individual to act as a key individual has been approved by the Registrar. Accordingly, the Registrar withdrew the licence. It is on this basis that the Panel cannot find reason to interfere with the Registrar’s decision. Hence the appeal must the appeal must fail.”

“The Appellant’s recourse is therefore to approach the office of the Registrar and submit an application for a new licence, motivating its compliance with the prescribed requirements.”

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