When is a debarment not a debarment? Part 3

This is the third and final article in a series by Alan Holton of Compliance Monitoring Systems, and a Moonstone Compliance associate, on this very contentious issue.

What is a possible remedy?

It is trite law that the duty and power to debar a representative in terms of section 14(1) was given by the legislature to the FSP who engaged the representative who is to be debarred. The Registrar was given only a recording role without powers to veto or control the process. Nevertheless, there is a duty on the Registrar to ensure that the debarment to be recorded is in fact legally valid.

S 14(3)(b) provides that the Registrar may make known any such debarment and the reasons therefor by notice on the official web site or by means of any other appropriate public media. This implies that a decision must be taken by the Registrar to make known a debarment as the Registrar is not compelled to make known the debarment.

S39 of the FAIS Act, 2002 provides that any person who feels aggrieved by any decision by the Registrar or the Ombud under this Act which affects that person, may appeal to the board of appeal established by section 26 (1) of the Financial Services Board Act, in respect of which appeal the said section 26 applies with the necessary changes.

The word “decision” is defined in the PAJA of 2000 as follows:

‘decision’ means any decision of an administrative nature made, proposed to be made, or required to be made, as the case may be, under an empowering provision, including a decision relating to –

  • making, suspending, revoking or refusing to make an order, award or determination;
  • giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
  • issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
  • imposing a condition or restriction;
  • making a declaration, demand or requirement;
  • retaining, or refusing to deliver up, an article; or
  • doing or refusing to do any other act or thing of an administrative nature.

Reference to a failure to take a decision must be construed accordingly.

It is against the Registrar’s decision “to make known” and invalid debarment that an appeal could, I believe, be lodged. The debarment was invalid and so the Registrar in fact has no right to make known any details in connection with the proceedings.

In fact, unless an appeal is lodged and dealt with, the aggrieved person will be precluded from taking the matter on review in terms of the Promotion of Administrative Justice Act 2000 should this be required. S 7(2) of PAJA makes it clear that “no court or tribunal shall review an administrative action in terms of this Act unless any internal remedy provided for in any other law has first been exhausted.”

The latest guidelines on Appeals can be found here. Please note that an appeal must be lodged within 30 days of the aggrieved person becoming aware of the decision of the Registrar to publish his or her name on the list of debarred representatives. The Board is not able to condone a late filing of an appeal.

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