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THE FINANCIAL SERVICES TRIBUNAL

 

Case No: FSP47/2022

 

 

In the matter between:

 

NTOMBIKAYISE JUDITH TSHAKA                     Applicant

 

and

 

NEDBANK LIMITED                                             Respondent

 

Coram:           SK Hassim SC (chair), C Woodrow SC PR Long

 

Summary:      Reconsideration in terms of s230 of FSR Act - Debarment in terms of s14 of FAIS Act

 

 

DECISION

 

 

1.          The applicant was employed by the respondent and was a representative as defined in section 1 of the Financial Advisory and Intermediary Services Act, No. 37 of 2022 (“the FAIS Act”). The applicant was dismissed from employment and on 28 July 2022 the respondent decided to debar the applicant (“the decision”) in terms of section 14(1) of the FAIS Act. The decision is contained in a letter dated 28 July 2022 with subject heading “FINAL DECISION TO DEBAR” (“the letter”). The applicant applies for a reconsideration of the decision under section 230 of the Financial Sector Regulation Act, No. 9 of 2017 (“the FSR Act”).

 

2.          A person who is aggrieved by a decision to debar him/her has the right to apply to the Tribunal under section 230 of the FSR Act for a reconsideration of the decision. However, the application must be made within 60 days after the person is informed of the decision.

 

3.          The applicant does not dispute that she was notified of the decision on 28 July 2022. She lodged the application for reconsideration on 6 October 2022. The applicant seeks condonation for the delay in timeously applying for the reconsideration of the decision. The respondent has not opposed the application for condonation.

 

4.          The applicant referred the employment dispute to the Commission for Conciliation Mediation and Arbitration (“CCMA”). She withdrew the referral on 4 October 2022. This application was made on or about 6 October 2022. It appears from the record that according to the applicant on the day of the hearing at the CCMA, representatives of the respondent informed the applicant that she had the right to apply to the Tribunal for the reconsideration of the decision to debar her. Within two days she signed the application for reconsideration. We are alive to the fact that the letter alerted the applicant to the right to apply to the Tribunal for the reconsideration of the decision. This was communicated to her in the following way:

 

“We would like to inform you of your appeal rights in terms of Chapter 15 of the Financial Sector Regulation Act 9 of 2017 (“the Act”). Should you wish to apply to have this decision reconsidered, you have 60 days from today to apply to the FSCA Tribunal for reconsideration of this decision ...”

 

5.          However, the applicant is not legally represented. It is highly unlikely that she knows what Chapter 15 provides. Be that as it may, there is an explanation for the delay and the delay is slight. Because a court has a wide discretion whether to condone non- compliance with prescribed time periods, the courts have refrained from defining what would constitute ‘good cause’ for entertaining proceedings brought beyond the prescribed time. The guiding principle is that justice is done.[1] Having considered the application we are satisfied that good cause exists for the delay. We accordingly grant condonation for the delay in timeously applying for the reconsideration of the decision.

 

6.          The applicant was charged with gross misconduct in the form of dishonesty. On or about 6 April 2022 she was suspended from employment. The applicant was notified that a disciplinary inquiry was convened for 30 June 2022. On 24 June 2022 she resigned.

 

7.          The applicant did not attend the disciplinary hearing. The hearing proceeded in her absence. She was found guilty and summarily dismissed.

 

8.          The applicant does not dispute the material allegations against her.

 

9.          On 1 September 2007 the applicant commenced employment with the respondent as a teller. She was a branch manager when her employment was terminated.

 

10.          The applicant was engaged to Mr Ntimane (“the deceased”). They had been living together since 2014 and a child was born of the relationship on 12 January 2015. The deceased died on 5 September 2017. Prior to his death he took care of all the child’s financial needs. The applicant encouraged him to invest monies with the respondent, which he did. The investment would have matured on 2 May 2019. The bank account which had been nominated by the deceased, referred to as “the capital disposal account”, was an account held in his name at Nedbank.

 

11.          The applicant had taken out a funeral policy to cover the deceased’s funeral expenses. The proceeds were however not paid because of a problem relating to the registration of the deceased’s death because he was an illegal immigrant. The applicant therefore had to use the surplus funds in her home loan account and funds she had invested to pay for the funeral expenses for a burial in Mozambique. The applicant produced records to show that she had drawn money from her account to pay for the expenses.

 

12.          On the applicant’s account there is no love lost between the deceased’s family and herself. The deceased’s family blames the applicant for his death and her life has been threatened. For this reason, she obtained a protection order.

 

13.          While this does not appear on the papers, during her argument at the hearing, the applicant alluded to the involvement of an ex-girlfriend of the deceased who became the executrix of the deceased’s estate. The applicant had expected to be the executrix. This may have been the deceased’s wish prior to his demise. However, the deceased’s family resisted this.

 

14.          Because of the threats on her life, the applicant left the child in the care of her mother. Having exhausted her savings (and the surplus on her home loan account) she could not pay the child’s school fees and costs of transport to school. Additionally, she was not able to buy food for the child. She told us that the child was hungry.

 

15.          Faced with this, on 2 May 2018 the applicant changed the capital disposal account from the Nedbank account held in the deceased’s name to a Capitec account held in her mother’s name. On the following day she changed the date of the release of the funds from 2 May 2019 to 4 May 2018. She completed an early release of investment form and R21 766.00 was paid into the Capitec Bank account. The applicant did not use the money for her personal benefit. It was given to her mother to take care of the child’s financial needs.

 

16.          The applicant now had to take care of all the child’s needs by herself; needs that the deceased had taken care of before his death.

 

17.          There was a delay in the appointment of an executor. The applicant seems to believe that because an executor had not been appointed, nothing precluded her from accessing the investment to reimburse herself for the money spent on the funeral.

 

18.          To the applicant’s mind she was entitled to the proceeds of the policy considering that the proceeds belonged to her fiancé. She reasoned that if she had not used her savings and the surplus on the home loan account on funeral expenses, she would have had money to take care of her child’s needs. It is common cause that the respondent had to compensate the deceased estate for the loss.

 

19.          During argument, the applicant conceded that what she did was dishonest but at the time did not see it as such. The applicant was driven by desperation and in the belief that she was entitled to the proceeds of the investment because she had used her savings and other money to pay for the funeral expenses.

 

20.          The events which caused the applicant to act as she did, would in our view constitute mitigating circumstances in other types of proceedings. However, on the facts, the respondent cannot be faulted for debarring the applicant. The applicant’s actions were dishonest, albeit that they were driven by desperation. We are cognisant that between May 2018 and the date of the termination of the applicant’s employment some four years later in 2022, the applicant had not committed an act of dishonesty. Furthermore, that notwithstanding the termination of her employment she continues to regularly receive confidential information relating to the delivery of cash to the respondent’s branch which she could exploit for her benefit but has not done so. She has also offered to repay the money which was paid into her mother’s Capitec account. However, section 14(1)(a) of the FAIS Act is not forgiving. If a financial services provider is satisfied that a representative or key individual no longer meets the fit and proper requirements of the FAIS Act, the financial services provider must debar the representative or key individual. The reconsideration application cannot be upheld.

 

21.          The applicant has been debarred since 28 July 2022. Soon she will have been debarred for more than one year and may be eligible for reappointment under Board Notice 82 in Government Gazette No. 25299 of 8 August 2003.

 

22.          The Tribunal makes the following order:

 

(a)            The application for reconsideration is dismissed.

 

 

Signed on behalf of the panel by the panel chair at Pretoria on 5^th July 2023

 

SK Hassim SC

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