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Moonstone Monitor - 1 February 2018 |
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Paul Kruger
Author/Editor |
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Wisdom is not a product of schooling but of the lifelong attempt to acquire
it – Albert Einstein |
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Distributed to 50,050 subscribers.
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click here |
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From the Crow's Nest |
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Appeal Board decision on Ombud Procedural Obligations |
The respondent, Mrs Landman, is a 65 year old widow and pensioner who
invested the proceeds of her late husband's life savings/pension of R650 000 on
6 May 2006 in the Sharemax Zambezi Retail Park Holdings Ltd on the advice of the
appellant, J C Mostert.
The appeal turned on two material issues namely:
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That the Ombud is debarred from investigating the complaint due to
prescription of the complaint and
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Whether the Ombud's failure to consider the two extensive responses submitted
by the appellant to the Ombud should result in the determination being set aside
and whether the matter should be referred back to the Ombud for proper
investigation, taking into account inter alia the responses submitted by the
appellant.
Prescription
Mrs Landman submitted a formal complaint to the Ombud on 12 February 2012, but
inadvertently posted it to the Ombud for Long Term Insurance who in turn, sent
it to the Ombud for Financial Services Providers, but only a year later.
The Appeal Board notes: “It is common cause that whether it is February 2012 or
2013, the submission of the complaint still met the provisions of section 27 (3)
(a) as the act or commission complained of occurred within the period of three
years before the date of the receipt of the complaint by the office of the Ombud.”
Procedure
Another interesting matter in this case concerns rule 5 (b) and (c), which
require that, before submitting a complaint, the complainant 'must' endeavour to
resolve the complaint with the 'respondent' and on submitting a complaint to the
office, the complainant must satisfy the Ombud of having endeavoured to resolve
the complaint with the 'respondent', and must produce the final response (if
any) of the 'respondent' as well as the complainant's reasons for disagreeing
with the final response.
Council for the appellant “…made a spirited argument that, prior to the Ombud
being able to officially receive the complaint, the provisions of section 27 (1)
(a) to (c) must be complied with. His submission is that section 27 (1) is
peremptory due to, the word ('must'), thus, it must be complied with by the Ombud, failing which the complaint cannot be
'officially received'”
In this regard, the Appeal Board ruled as follows:
“It is common cause that the respondent did not comply with the rule 5 (b) and
rule 5 (d). In such a case, the Ombud must act in accordance with the other
provisions of the rules and 'otherwise' officially receive the complaint if 'it
qualifies as a complaint'”.
“Section 27 (4):
'The Ombud must not proceed to investigate a complaint officially received,
unless the Ombud -
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has in writing informed every other interested party to the complaint of the
receipt thereof;
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is satisfied that all interested parties have been provided with such
particulars as will enable the parties to respond thereto; and
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has provided all interested parties the opportunity to submit a response to
the complaint.'
Once these provisions have been complied with, the Ombud proceeds to investigate
and determine the 'officially received complaint' and in this regard the Ombud
may follow and implement any procedure which the Ombud deems appropriate
(section 27 (5)).”
In the exercise of her general discretionary powers, therefore, the Ombud
officially received the complainant's complaint and prescription did not apply.
As soon as the Ombud officially received the complaint, the running of
prescription was interrupted.
Failure to consider Appellant’s responses
Council for the Appellant held that the Ombud “…expanded and fleshed out the
complaint on behalf of the respondent and …ignored detailed responses submitted
by the appellant in October 2013 and August 2015, which responses enclosed
compliance documentation and supporting documents which either negated the
"expanded version" of the respondent or at least highlighted material factual
disputes" which would first have had to be resolved by the Ombud before she
could issue a determination against the appellant, holding the appellant
liable.”
The Ombud concluded in her ruling, when granting the appellant leave to appeal,
that the responses were not considered due to an administrative error and
further states that such response contains submissions of fact and the law that
are relevant to the issues in the complaint.
Upon receipt of the appellant's affidavit, a full investigation was conducted
and it was discovered that there was a different file that was misplaced that
had the appellant's response in it. As a result of that administrative error,
the response was not placed before the Ombud when the determination was made.
There is no allegation made that the Ombud was male fide when making the
determination without considering the respondent's version.
The Appeal Board concludes:
“We are of the view that the issue of the determination of the complaint should
be remitted to the Ombud for that office to reconsider and issue a fresh
determination.”
Click here to download the full
Appeal Board Determination. |
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Your Practice Made Perfect |
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2017 Moonstone Compliance Report Workshop |
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Register now
Moonstone’s annual Compliance Report workshops for Cat I FSPs without a
Compliance Officer will be held on the dates indicated below. The
workshop will guide you through the completion and submittal of your
2017 Compliance Report for the period 1 January 2017 to 31 December 2017
which must be submitted prior to 28 February 2018.
A very important item on the agenda is a discussion on the new Fit &
Proper requirements such as Class of Business Training, Product Specific
Training, Continuous Professional Development as well as the new
Operational Ability aspects. This information is of critical importance
for your business from 1 April 2018.
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There is no charge for Protector clients for either
option, but registration must be done via the Moonstone
website. |
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Cost to non-Protector clients is R750 (excl.
VAT) for the face-to-face workshops and R450
(excl. VAT) for the live webinar session. |
Workshops will be hosted in the morning (09H30) at the following venues:
|
Durban |
Thursday
15 February |
(Westville: Pharos House -
Moonstone Exam
Centre) |
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Cape Town |
Tuesday
20 February |
(Pinelands: Pinewood Park -
Moonstone Exam Centre) |
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Johannesburg |
Wednesday
21 February |
(Sandton: Sinosteel Plaza -
Moonstone Exam Centre) |
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Live Webinar |
Thursday
22 February |
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Those attending the face-to-face workshops will be provided with a hard
copy of the Compliance Report. Should you wish to submit it
electronically, you are welcome to do so, provided you have your own
internet access.
I am unable to attend the face-to-face workshop?
We strongly recommend that you then register for the live webinar. For
the webinar event it is imperative that your device (desktop, laptop,
tablet, smartphone) has adequate internet connectivity. The strength of
your internet connection will directly determine the quality of your
experience of the webinar event.
Register now
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Changes to Regulatory Exam Questions
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The amended Determination of Fit and Proper Requirements come into effect on
1 April 2018.
The competence requirements relating to regulatory examinations contained in the
amended Determination apply to all FSPs, key individuals and representatives
except:
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a Category I FSP, its key individuals and representatives authorised,
approved or appointed only to render financial services or manage or
oversee financial services in respect of the financial products:
Long-term Insurance subcategory A and/or Friendly Society Benefits;
and
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a representative of a Category I FSP that is appointed only to perform
execution of sales in respect of a Tier 1 financial product
provided that the requirements in section 22(b)(ii) are complied with;
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a representative of a Category I FSP that renders financial services
in respect of a Tier 2 financial product only.
Regulatory Exam Study Material
The amended requirements contained in the 2017 Determination of Fit and
Proper Requirements will have a substantial impact on the content of the
study material for the REs.
Candidates who are currently preparing to write the exams should
consider the possible implications of such changes, and endeavour to
write the exams before it becomes effective.
We believe that the FSB is in the process of providing guidance on the
deadline by when the amended requirements are to be incorporated in the
regulatory exam questions. At this stage, we have to work on 1 April
2018, as this is the day the Determination comes into effect.
Inseta confirmed that they are in the process of updating the material,
and “hope” to have it ready by 1 April 2018. LexisNexis advised that
theirs will not be ready by then. Stock of their current material is
almost sold out.
Candidates are advised to carefully consider the above, but should only
write the REs once they are absolutely ready
Click here to read the full section on REs in the F & P Determination.
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Technologically Speaking
Moonstone Information Refinery
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Digital Marketing Guide |
I recently downloaded a 16-page white paper titled The Advisor's Guide
to Digital Marketing which offers a wide variety of tips on how you
can use various platforms to optimise your client contact via
digital media.
The introduction reads:
Business today gets done not only through a handshake and signature,
but with the click of a mouse, post of a tweet, and ping of an
inbox. This digital era provides a variety of opportunities for you
to get in front of more potential clients than ever, and to stay
fully engaged with your existing client base. In this white paper,
we’ll explore best practices for expanding your online presence
through your website, social media, email marketing, and educational
opportunities. Additionally, you’ll find ways to build your business
by reframing your value conversation and enhancing the client
experience.
The white paper is not “free”, in the traditional sense, as you are
required to provide limited information, like your email address.
You can, of course, simply unsubscribe if you receive marketing
material which is not of value to you.
Click here to download the booklet.
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Regulatory Examinations
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2018 RE Schedules updated |
Please note: Registration cut-off is 11 working days before date of exam. |
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Frequently Asked Regulatory Exam
Questions |
| 1. |
What exam must I write?
Both the RE 5 and RE are Level One exams. RE 5 is for Representatives and
RE1 for Key Individuals. The RE 3 exam is for licence category II
candidates.
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| 2. |
How much does it cost?
The FSB determines the fee. Currently it costs R1163 per exam, also in
the case of a re-write.
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| 3. |
What preparation material is available?
Fully updated resources are available for those requiring access to the
legislation applicable to the regulatory examinations:
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Please make sure that you first read the
FSB’s Preparation Guide to
make sure you follow the right process in preparing. Page seven includes
a recent amendment to guide candidates in studying in the correct
manner. |
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Click on the following highlighted sections to download the relevant
updated Inseta learning material for key individuals,
RE 1, and
representatives,
RE 5. |
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LexisNexis provides a “Legislation Handbook” together with a
“Preparation Guide” containing the qualifying criteria, with a link to
the relevant legislation. |
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The
Juta FAIS Pocket Statutes also contains a CD with a comprehensive
list of updated supplementary legislative material for reference
purposes. Please click here to order this from our online shop. |
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The FSB’s telematics broadcast on the RE 1 and RE 5
provides a good introduction and overview, and can also be ordered
online in: |
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DVD format or on a
USB memory stick
MP4 direct download - 2 Gb |
| 4. |
Where can I write?
Go to:
http://www.faisexam.co.za/show_venues |
| 5. |
What dates are available?
Go to:
http://www.faisexam.co.za/view_schedule |
| 6. |
What training is available?
As an Exam body we are not allowed to recommend companies that offer
face-to-face Regulatory exam classes. You can try Google for someone in
your area.
Bear in mind that this exam tests your knowledge about the laws
applicable to the provision of financial advice and intermediary
services. The questions are based on very specific qualifying criteria
set out in the FSB preparation guide. Any training that does not have
this as a basis will not prepare you properly for the exam. Do your own
research and don’t just accept what others say. |
| 7. |
Where can I buy old question papers?
There are no genuine “old question papers” available. Be very careful
when buying such preparation aids as some of those on offer are not in
line with the high standard prevailing in the actual exams and often
lead to a false sense of knowledge which is sadly exposed when
confronted by the actual exam. Follow the guidelines provided in the FSB
Preparation Guide and you are far more likely to achieve success. |
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Careers Platform
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Are you hiring? Advertise your position on Moonstone’s Career Platform
|
| • |
The Moonstone website -
www.moonstone.co.za
- enjoys an average of 20 000 visits and approximately 39 000 page views per month. |
| • |
Moonstone boasts an exclusive newsletter mailing list of over 49000
dedicated financial decision makers who receive 2 newsletters per week. |
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Our audience is relevant and industry specific: individual and corporate advisors and brokers in the following financial sectors:
Investment, Risk, Healthcare, Banking, Retirement, and Insurance. |
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Featured Positions |
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Jnr Compliance
Administrator:
Saxo Capital Markets (Pty) Ltd, Sandton - Seeking Jnr Compliance
Administrator to assist internal Head of Legal & Compliance in
conjunction with external Compliance Officer.
Read More
-
Compliance Research &
Developer:
Moonstone Compliance, Stellenbosch - The successful applicant will
work closely with the R&D Manager and will be registered as a compliance
officer under supervision with the FSB.
Read More
-
Senior Regulatory
Compliance Manager:
Clientèle Limited Group, Johannesburg - The successful incumbent
will be responsible for proactively and constructively assisting the
Clientèle Group in managing its responsibility to comply with all
relevant regulatory requirements and minimise compliance risks.
Read More
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Commercial
Underwriter:
HIC Underwriting Managers, Bedfordview - Join our dynamic team if
you are Fais compliant with 120 credits and 5 years of experience.
Read More
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Insurance Field Sales
Reps:
Quantum Invest, Nationwide - We are looking for field Reps
nationwide. RE5 qualification is recommended. We offer a
competitive commission structure.
Read More
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Financial Advisor:
Kaizen Solutions, Gauteng - We are currently recruiting an unlimited
number of individuals aged 25 to 35 who are sales driven, motivated,
ethical and dedicated.
Read More
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Senior Credit Controller:
CIA Building Insurance, Bedfordview, is currently looking for an
experienced credit controller to join our finance team.
Read More
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Short Term Insurance
Underwriter:
JFA Shortterm Brokers CC, Milnerton, Cape Town -
If you have a minimum of 3 years experience and, live in the vicinity of
the brokerage, then
Read More
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In Lighter Wyn |
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Doing the impossible and some thoughts on the gym… |
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Come again?
A man was walking along a California beach and stumbled across an old
lamp. He picked it up and rubbed it and out popped a genie.
The genie said, "OK. You released me from the lamp, blah blah blah.
This is the fourth time this month and I'm getting a little sick of
these wishes so you can forget about three. You only get one wish!"
The man sat and thought about it for a while and said, "I've always
wanted to go to Hawaii but I'm scared to fly and I get very seasick.
Could you build me a bridge to Hawaii so I can drive over there to
visit?"
The genie laughed and said, "That's impossible. Think of the
logistics of that! How would the supports ever reach the bottom of
the Pacific? Think of how much concrete... how much steel!! No,
think of another wish."
The man said OK and tried to think of a really good wish. Finally,
he said, "I've been married and divorced four times. My wives always
said that I don't care and that I'm insensitive. So, I wish that I
could understand women....know how they feel inside and what they're
thinking when they give me the silent treatment... know why they're
crying, know what they really want when they say 'nothing'... know
how to make them truly happy...."
The genie asked, "Do you want that bridge two lanes or four?"
Gym? You must be joking!
By this time, most of your new year’s resolutions have probably
disappeared, so here is some humour about one of them.
Came out the gym the other day and cop asked me how I got that body.
I said, "I don't know officer, I just opened the trunk and there she
was."
The only exercise I did in January was running out of money.
Google+ is the gym of social networking. We all join, but nobody
actually uses it.
I wish this gym had a stationary bike built for two.
I do two hours of cardio every day, but still look for the closest
parking spot to the gym.
I phoned the local gym and I asked if they could teach me how to do
the splits. He said, "How flexible are you?" I said, "I can't make
Tuesdays or Thursdays."
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Tel: +27 21 883 8000 | Fax: +27 21 883 8005
info@moonstoneinfo.com
www.moonstone.co.za
P.O. Box 12662, Die Boord, Stellenbosch, 7613, Republic of South Africa
Disclaimer:
Services and products advertised by external product suppliers in
this newsletter are paid for by the respective suppliers. Moonstone
does not endorse any opinions, conclusions, data, products, services
or other information contained in this e-mail which is unrelated to
the official business of Moonstone and furthermore accepts no
liability in respect of the unauthorised use of its e-mail facility
or the sending of e-mail communications for other than strictly
business purposes.
The complete disclaimer can be accessed
here.
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©2015 Moonstone. All rights reserved. |
