Secondary

debarment-application

Condonation of late application for reconsideration of debarment

The recently updated Financial Services Tribunal Consolidated Rules contain the following stipulations regarding time frames:

An application for reconsideration must be made:

  • if the applicant requested reasons in terms of section 229 of the Act, within 30 days after the statement of reasons was given to the applicant or
  • in all other cases, within 60 days after the applicant was notified of the decision, or such longer period as may on good cause be allowed.

In a recent decision by the Tribunal, it ruled on a case in which the latter applied.

The debarment was effected during January 2020 and the application for reconsideration was filed only on 23 April 2021. The application was out of time and the applicant accordingly first asked for condonation for the late filing.

The Tribunal ruled as follows, and expanded on a few other related considerations:

The reason the application is late, says the applicant, is that he thought (wrongly) that the debarment would be automatically fall away after one year.

His decision not to attack the merits of the debarment by way of an internal appeal that was available to him or by reconsideration application but to wait for an automatic reinstatement leads to the inescapable conclusion that he, at the time, chose to abide by the debarment, which is akin to a peremption of appeal, and means that he made an election to which he is bound. (an appeal is said to be perempted when the appellant has by his own act waived or barred his right of appeal; as where he partially complies with or acquiesces in the sentence of the court – editor.)

Even if one were to assume that the applicant has a reasonable excuse for the late filing, the problem is that there is no merit in the condonation application because the applicant does not have any reasonable prospects of success.

In relation to a fair process the applicant alleges that he thought that it would be telephonic and not in person and he consequently did not attend the hearing.

That is not the full picture. The applicant failed to show up for the disciplinary hearing and when the chairperson phoned him, stated that he was under the impression that it would be a telephonic hearing and that he was currently on leave. After this call the company decided that it would be better for him to attend in person. The applicant was then called upon by the managing director of the respondent and was informed that the hearing would not be held telephonically, to which the applicant agreed. He was then sent a new notice to attend clearly stating the date, time and venue for the hearing, and was never informed that the hearing would be done telephonically. For these reasons, the chairperson continued with a hearing in his absence.

As to substance, the applicant case is a bare denial. He does not address any of the allegations or the evidence in support of the allegations of fraud and theft.

Accordingly, the application for condonation is dismissed and the application for reconsideration falls away.

This is yet another case of a frivolous attempt at trying to overturn a valid decision, mainly because there are consequences for the applicant. Perhaps consideration should be given to imposing a penalty or case fee in such instances.

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