The Financial Sector Conduct Authority (FSCA) recently published the latest version of the Financial Services Tribunal (the Tribunal) Rules, which came into effect on 1 June 2021. The rules that were specifically amended or added are Rules 71, 72 and 78 to 82. The Forms have also been updated. To assist you in understanding these changes, we have provided a brief overview of the application process, followed by a discussion of the amendments and new rules.
The Tribunal Rules are important for FSPs, Key Individuals or Representatives that are dissatisfied with the “decision” of a “decision-maker” as defined in Section 218 of the Financial Sector Regulation Act, and who have the option to exercise their right to apply for a reconsideration of that decision.
Only a person who is “aggrieved” by a decision of a decision-maker may apply to the tribunal for a reconsideration of that decision. A “decision-maker” could be a statutory Ombud or a financial services provider.
An application to reconsider a decision must be made within 30 days of receiving reasons from the decision maker; if such reasons were requested. In all other cases, within 60 days after being notified of the decision, or a longer period, if good cause can be shown.
An application for reconsideration must-
- include the decision letter and the statement of reasons you received from the decision-maker;
- contain full particulars of the grounds (stated succinctly) on which the application is based;
- where the application is filed outside of the prescribed timelines, the application must deal with the aspect of condonation (request pardon and provide reasons);
The Tribunal Rules also set out the standards to which the application should align-
- Form A, if the decision-maker’s decision is in favour of another party.
- Form B, if the decision only affects the applicant; and
- Form C, for the reconsideration of a decision made by the FAIS Ombud which must include the original complaint submitted to the Ombud, as well as the decision letter you received.
The application for reconsideration must cite all other parties to the decision and be delivered to the Tribunal secretariat and all other parties to the decision. The prescribed form and annexures must be delivered to the Tribunal either by hand, registered post, fax or email.
The Tribunal Rules also provide insight on the procedures that are followed after submission of an application, whereby the record is prepared by the secretariat and provided to the parties.
The date, time and place of the hearing is fixed by the Panel Chairperson through the secretariat. The argument is limited to the grounds upon which the application for reconsideration is based. An order of the Tribunal has the effect of a civil judgment and may be enforced. If dissatisfied with the outcome, a decision of the Tribunal may be taken on judicial review to the High Court under the Promotion of Administrative Justice Act 3 of 2000.
Tribunal Rules amendments
Withdrawal of application
Previously, the rules only allowed the applicant or opposition to withdraw an application or their participation. In addition to this, the amended rules now also cater for a withdrawal to be effected without the applicant or oppositions involvement. An application may be dismissed by the Tribunal if it is not prosecuted within the required time frames. An opposition that is not prosecuted within the required time frames may be considered as having been withdrawn or abandoned.
Therefore, it is critical that time limits are monitored and strictly followed to avoid withdrawal or abandonment of a reconsideration application.
Format and Standards of forms
The prescribed format and standards for applications have also been updated. Previously, applicants only provided the particulars of the decision that was made by the decision-maker. The changes now require that applicants must also provide the particulars of the decision-maker, including the official designation of the decision-maker.
New Tribunal Rules
The Protection of Personal Information Act 4 of 2013 (POPIA)
New rules 78 to 82 which relate to POPIA have been added to the Tribunal rules. This addresses how the Tribunal will process personal information considering the activities of the Tribunal. As the Tribunal is a public body, the documents that are filed with the Tribunal become part of public record and is accessible in the public domain.
In terms of the Rules, parties are deemed to consent to the sharing of their information with other regulators or relevant parties involved in the application to enable the Tribunal to process and adjudicate the application. Parties have a right to object to the sharing of their personal information with other parties however this may impact the Tribunals ability to process and adjudicate the application.
The Rules provide valuable insight into the process of applications for reconsideration, which must be followed to initiate proceedings with the Tribunal. Adherence with these rules will help ensure that an application is correctly drafted, includes necessary information and is submitted within the required timeframes.
Read more in Financial Services Tribunal Consolidated Rules, 2021