FSP Due Diligence Responsibilities

On Monday, we briefly outlined the background to the first complaint against an advisor who invested client funds in Herman Pretorius’s Relative Value Arbitrage Fund.

In his response to the complaint, the advisor stated, amongst other arguments that he, after reading about possible problems, “…contacted Mr. Pretorius to further investigate the matter. Mr. Pretorius advised me in a meeting at his office that the FSB had visited him and found nothing untoward.”

“If the FSB with all the investigative means at its disposal was not able to detect improper “hedge fund” activities by Pretorius, it surely cannot expect me to have done so.”

He also attached a copy of an e-mail from Tefo Moatshe of the FSB to another adviser dated the 11 May 2009 which states:

“Hedge funds are currently not regulated in South Africa – we only regulate a person who manages a hedge fund portfolio. This means that a person who renders financial services to a client to invest in hedge funds is not a financial services provider and not required to be licensed.”

The Ombud responded to this as follows:

“It is neither considered necessary nor appropriate of this Office to comment on the allegation that the FSB failed to pick up contraventions despite, according to the respondent, the FSB having investigated the business activities of Pretorius on more than one occasion.”

“Whatever the alleged failure on the part of the Financial Services Board, (no opinion is expressed by this Office on this allegation), the respondent’sfailure to conduct even the most basic due diligence is inexcusable. Even more so, given that not only was the respondent directly and regularly interacting with Pretorius and the RVAF, but as discussed hereunder, the respondent was more than amply qualified to pick up on any irregularities.”

The Ombud then expands on the respondent’s membership of a professional body, his obligations under its code of conduct and his professional qualifications.

 I find it difficult to reconcile this conclusion with the information published in the media release by the FSB in August 2012 in response to media reports:

“During May 2011 it was brought to the attention of the FSB that Pretorius was “selling shares in unlisted companies” and “promoting these ventures” by making representations to the community.

As the selling of unlisted shares may constitute a financial service as contemplated by the FAIS Act, the FSB followed up on the information which it subsequently received in order to establish whether or not Pretorius was acting in contravention of the FAIS Act, given also the fact that he was not licensed in terms of the FAIS Act.

Some of the findings given were:

“Based on the information supplied in response at the time the FSB was satisfied that:

  • The private equity or venture capital projects embarked upon or supported by Mr Pretorius did not constitute an activity which was subject to FSB regulation.
  • Pretorius’s activities did not require a FAIS licence at the time.
  • The manner in which Pretorius indicated that capital would be raised from investors and the investment vehicle used for the raising of such capital also did not point towards any activity which was subject to FSB regulation or otherwise unlawful…”
  • The explanations provided to the FSB concerning the nature of the trusts as investment vehicles were such that it could not be established with certainty that their activities were subject to FSB regulation. Some of the ventures were designed for individuals who could properly be considered to be involved in a private domestic affair.”

“Following further complaints received by the FSB in May/June 2012 against Mr. Pretorius it was decided that a formal inspection should be conducted on the affairs of Pretorius and the various investment vehicles utilised in order to establish whether or not the activities of the investment vehicles were subject to FSB regulation. The inspection was under way at the time when Pretorius allegedly committed suicide.”

“There are media reports indicating that concerns were raised with the FSB more than 8 years ago regarding Pretorius’ involvement in hedge funds. In this regard, the FSB wishes to clarify that at that time that these concerns were raised the regulator could not establish any evidence of Pretorius’ activities in hedge funds or any irregularities with regard to the issues that were raised at the time. Further, the FSB wishes to categorically state that, as detailed above, appropriate action was taken from the time that the allegations first surfaced, and that the investigation into this matter is on-going.”

“Concerns have also been raised about how the FSB “allowed what amounts to a gigantic Ponzi scheme to continue under its nose.” Once again, it must be remembered that schemes that are operated outside of and actively in secret from the regulator cannot be said to be operating under the regulator’s nose. Accordingly, to the extent that there was a Ponzi scheme in Pretorius’ activities, such a scheme would have been operated in strict secrecy from the FSB.”

“The FSB is of the view that if there was any non-compliance by Pretorius, it was well-designed not to be subject to regulatory scrutiny. To the extent that investors were lured into any of his projects, such investors carried the risk and obligation to enquire into the merits before parting with their money, especially where above-average returns were being offered. The loss of so much money to so many investors is a sad state of affairs but one for which the regulator is not accountable.”

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