DEBARMENT GUIDANCE FROM THE TRIBUNAL CASE
By Patrick Bracher,Norton Rose Fulbright
A representative’s dishonesty, negligence or incompetence must be sufficiently serious to impugn the honesty and integrity of the representative as a person before debarment is justified.
The ambit of the enquiry determining fit and proper characteristics is that a representative must conduct themselves with honesty and integrity and be of good standing. The representative must meet certain prescribed standards of competence in that they must have the skill, knowledge and expertise needed for the proper discharge of their FAIS Act responsibilities. The FSP, in exercising their debarment power, must act reasonably and rationally and the decision taken must be justifiable. Determining whether a person is of good character and integrity involves a moral judgment regarding the whole character of the person. It is necessary to consider the person’s manner of conduct judged by their acts and motives. The acts must also be tested against any ill-founded motives at the time of the misconduct.
In this case, the motive behind the conduct of the representative to use a cut-and-paste signature of the client was to expedite instructions and not to defraud or harm the client or cause the client loss. It was a good faith motive. Once told that what she had done was incorrect, the document was shredded and not used and the client’s actual signature was obtained the next day. The factors were held not to be consistent with a dishonest character and the debarment was set aside.
[Osman v FNB: Financial Services Tribunal : Case No. FSP44/2020]