As an advisor it is imperative that you always act within your mandate and adhere to the General Code of Conduct. Should you fail to do so, you may find yourself experiencing the unfortunate event of having an Ombud determination against you. If you feel that you have done everything that you ought to have done and kept proper records, you may be able to appeal the determination. However, this process is governed by strict time limits and rules. It is therefore important that you act timeously in your response.
The Appeal Process
The first step is that you need to make an application for leave to appeal to the Ombud.
In terms of Rule 12(b) of the Rules the application “must be in writing, must be submitted to the Ombud within one month of the date of the determination and must set out the grounds on which the application is made”.
Advisors often rely on the wording of Section 26(2) of the FSB Act when submitting a late application. Section 26(2) states: “An appeal must be lodged within 30 days of the person becoming aware of, or ought to have become aware of a decision in the manner and on payment of the fees prescribed by the Minister”.
Advisors argue that they are within the required period as they have submitted the application “within 30 days of them becoming aware of it”. This approach does not find favour with the FSB. The FSB adopts a strict approach that an application must be made within one month of the date of the determination. The reason for this approach is that the FSB does not have the power to condone the late filing of an application and accordingly a late application will not be processed.
In such an instance, the matter will be closed, and the only relief you might seek is one through a court. This obviously bears the burden of legal costs. It is therefore imperative
that an application for leave to appeal is lodged within one month of the date of the determination.
When Leave is denied by the Ombud
If an applicant has lodged an application for leave to appeal within the prescribed time period but the Ombud refuses leave to appeal, the applicant must be advised in writing and be given reasons for such refusal.
In this instance, the applicant may within one month of such refusal apply to the chairperson of the board of appeal for leave to appeal against the determination and advise the Ombud in writing accordingly.
An application for leave to appeal to the chairperson of the FSB Appeal Board must include the following documentation:
- A copy of the FAIS Ombud’s determination
- A copy of the application for leave to appeal to the FAIS Ombud
- A copy of the FAIS Ombud’s response to the application for leave to appeal
When leave to appeal is denied by the Chairperson
If the application for leave to appeal is denied by the chairperson, the matter is closed insofar as the Appeal Board is concerned and the aggrieved party may seek an appropriate remedy through the court.
Prior to the ruling of the chairperson, no fee is payable as the matter is not yet an appeal.
Where the Application for Leave to Appeal is granted
Where the application is granted, the applicant must lodge an appeal to the Appeal Board in terms of s26 of the FSB Act.
The following documents must be submitted:
- A Notice of Appeal
- A copy of the FAIS Ombud’s determination
- A copy of the FAIS Ombud’s response to the application granting leave to appeal
- Proof of payment of the prescribed fee
Proceedings at the hearing of an Appeal
The procedure at the hearing of an appeal is determined by the chairperson. Generally, only information which was available to the decision-maker at the time of making the determination will be placed before the Appeal Board. However, any person wishing to submit additional information must apply in writing, to the chairperson of the panel hearing the appeal, for leave to do so.,
Legal representation may be allowed at the hearing.
Appeal Board’s decision
Once the Appeal Board has made a decision, the decision is final. A party who is dissatisfied with the Appeal Board’s decision has a right of review to the High Court if there are grounds for reviewing the decision.
It is important to understand this process if an Ombud determination is made against you or your FSP and you wish to request leave to appeal. Maintaining appropriate records will assist you in this situation. Ensure that immediate steps are taken to follow the appeal process within the stipulated timelines.