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THE FINANCIAL SERVICES TRIBUNAL

 

CASE NO.: A35/2023

 

In the matter between:

 

B E RANKHAKILE                                                                      APPLICANT

 

and

 

FINANCIAL SECTOR CONDUCT AUTHORITY                          RESPONDENT

 

Summary: Application for reconsideration in terms of section 230 of the Financial Sector Regulation Act 9 of 2017 (“FSR Act”) following a debarment order in terms of section 153 (1)

(a) of the FSR Act. The Authority’s exercise of its discretion cannot be faulted.

 

DECISION

 

INTRODUCTION

 

1.  The Applicant applies for the reconsideration of the decision of the Financial Sector Conduct Authority (“the Respondent” or “the Authority”) made on 8 May 2023. The application is in terms of section 230 of the Financial Sector Regulation Act 9 of 2017 (“the FSR Act”) to set aside the Respondent’s (the Authority) decision dated 8 May 2023[1] to debar the Applicant in terms of section 153 (1)(a) of the FSR Act.

 

THE ISSUES

 

2.  The upshot of the Authority’s case against the Applicant was the allegation that the Applicant conducted fraudulent business by submitting policy application forms to Assupol Life which were forged.

 

3.  The Applicant worked for Assupol Life (“Assupol”). The latter received a complaint from a certain Ms Chabedi (“the complainant”) in which she disputed Assupol Life Policy of which she was allegedly the policyholder. She alleged that she never took out the disputed policy with Assupol. As a result:

 

3.1.  Assupol conducted an investigation and found that the disputed policy was submitted by the Applicant.

 

3.2.  It was further found that there are clear discrepancies between the signature on the disputed policy application form and the signature on the complainant’s complaint. There are also differences in cell phone numbers and addresses on the disputed policy application form and the complainant’s complaint form. Based on the findings recorded in the investigation report it was evident that complainant did not apply or sign the application form of the disputed policy submitted by the Applicant.

 

3.3.  The investigation report revealed that Assupol interviewed the Applicant regarding the complaint and that Applicant indicated that she is not the one who wrote the policy and that the signature reflecting on the policy is not hers, similarly to what she says in the application for reconsideration.

 

4.  The Sales Manager at Assupol provided a sample of two other policies written by the Applicant for analysis by a handwriting specialist. The handwriting specialist stated that the signatures on the three policies share similarities and may have been produced by the Applicant.

 

5.  Assupol submitted the aforementioned report to the Authority to consider the possible contraventions of financial sector laws and to consider debarring the Applicant if it was satisfied that there were contraventions in a material way.

 

6.  Based on the evidence presented and the non-response from the Applicant, the Authority took a decision to debar the Applicant.

 

7.  When dealing with two conflicting versions as in this case (i.e., the Applicant’s version vs. Assupol version), it is apposite to have regard to the following “pointers to the truth”: i) corroboration; and ii) the probabilities.

 

8.  The Authority based its case on the Forensic Handwriting Examiner’s (Mrs AC

 

Salamon) finding that the signatures on certain parts of the forms share similarities and

may have been produced by the same author, certain parts of which are known to have been produced by the Applicant.

 

9.  The Applicant failed to put forward any rebuttal to detract from the correctness of the findings of Assupol’s investigation report and chose not to file any submissions to deal with the findings of the forensic document examiner.

 

10.  Having regard to the above alone, in the absence of any countervailing or rebutting evidence by the Applicant, the ineluctable conclusion is that the evidence on the signatures that were attributed to the Applicant are authentic.

 

11.  Following its investigation, the Authority found, inter alia, that the Applicant no longer complied with the fit and proper requirements, particularly the character qualities of honesty and integrity, in accordance with sections 6A and 8A of the Financial Advisory and Intermediary Services Act No.37 of 2002 (the FAIS Act), read together with paragraph 8(1) of the Determination of Fit and Proper Requirements, Board Notice 194 of 2017.

 

12.  The Authority found that the Applicant has contravened, in a material manner, the following sections of the FAIS Act: -

 

3.1  Section 8A of the FAIS Act read with section 8(1) of the Board Notice 194 of 2017: Determination of fit and proper requirements for financial services, 2017;

 

3.2  Section 2 of the General Code provides: “a provider must at all times render financial services honestly, fairly, with due skill, care and diligence, and in the interest of clients and the integrity of the financial services industry”; and

 

3.3  Section 3(1)(d) of the General Code provides: “the service must be rendered in accordance with the contractual and reasonable request or instruction of the client, which must be executed as soon as reasonably possible and with due regard to the interests of the client which must be accorded appropriate priority over any interests of the provider”.

 

13.  The Applicant challenges the Authority’s decision which entailed, a debarment order in terms of section 153(1) (a) which debars the Applicant for a period of one (1) year and prevents her from rendering of financial services.

 

14.  Aggrieved by the decision to debar her, the Applicant delivered her application for reconsideration together with the basis for her challenge of the Authority’s decision. The grounds for reconsideration are stated in the Applicant’s application letter to this Tribunal dated 18 October 2023²[2] in which, as part of her grounds for reconsideration, she states as follows:

 

“I only learnt that I was debarred on 5^th October 2023. The alleged fraud case happened around May 2021. I did explain to my Assupol broker consultant that I did not know of the policy and I did not sign it…

 

15.  In resisting her debarment and seeking its reconsideration, the Applicant sets out her grounds which may be summarised into the following four main grounds:

 

6.1  Although she was debarred on 5 October 2023, the allegations occurred in May 2021;

 

6.2  She did explain what actually happened when she was confronted with the allegations.

 

6.3  She provided her employer with a sample of her handwriting signature but never heard from them; and

 

6.4  She was not informed of her debarment but came to know of it when she applied for employment elsewhere.

 

16.  The main hurdle faced by the Applicant is that, although the Authority afforded her an opportunity to deal with the evidence of debarment, she failed to challenge that evidence. Her belated attempt and latter-day denial are merely threadbare and does not explain the main thrust of the allegations of fraud levelled against her.

 

17.  On a proper consideration of the issues, the Applicant has still not given any reasonable explanation refuting the allegations of fraud against her. The result is that the main thrust of the allegations remains unchallenged.

 

18.  In the circumstances, the Authority afforded the Applicant procedural fairness before the debarment by making attempts to notify her of the debarment and tried to seek her version before proceeding with the final debarment.

 

CONCLUSION

 

19.  Upon a proper reconsideration of the Authority’s decision and the record before this Tribunal, there is no merit in the application for reconsideration. The Authority properly investigated the allegations of fraud against the Applicant, and proceeded to invite her to address the findings of its expert evidence, together with the allegations furnished by the Applicant’s employer, Assupol. Despite all of that, the Applicant failed to provide any version challenging the allegations and findings against her. Instead, the Applicant merely provided latter-day bare denials which failed to challenge the findings against her.

 

20.  The above being the case, the application for reconsideration is dismissed.

 

ORDER

 

21.  In the result the following Order is made:

 

ORDER: The application for reconsideration is dismissed.

 

Signed on behalf of the Tribunal on this 2nd Day of April 2024.

 

Zama Nkubungu-Shangisa (MEMBER) with

JUDGE LTC HARMS (DEPUTY CHAIR).

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