‘FSB needs more powers to stop bad behaviour’

PF IOL 17Nov FSB PF Illustration: Colin Daniel

Government intends to introduce “draconian” measures to stop the exploitation of consumers by badly behaved players in the financial services industry, Ismail Momoniat, National Treasury deputy director- general, says.

Momoniat gave notice of government’s intentions in the first briefing to Parliament’s finance portfolio committee this week about a wide range of changes to various laws, most of which are administered by the regulator, the Financial Services Board (FSB).

The amendments, contained in the omnibus Financial Services Laws General Amendment Bill, range from greater powers for the FSB to act against miscreants to bringing financial services legislation in line with the new Companies Act. Among other things, the legislation will give the FSB greater powers to impose regulations on the industry without reference to the Minister of Finance or Parliament and to take action against com-panies and individuals that it considers are placing consumers or the broader financial services industry at risk.

However, at the meeting this week, members of Parliament expressed concerns that too much power might be wielded by the FSB, allowing it to side-step the legislator by, in effect, making legislation by issuing regulations, then prosecuting any presumed offenders, and finally having the power to take judicial action against offenders.

But finance committee chairman Thabadiawa Mufamadi said he is committed to dealing with the legislation speedily. There are too many examples, particularly in the retirement and the insurance sectors, where the industry is not behaving properly, Mufamadi says.

Parliament needs to be seen to be doing something about abuses, in the interests of consumers, he says.

Momoniat says the legislation is urgently required and cannot wait for legislation that will establish the “twin peaks” regulatory structure, in terms of which prudential regulation and supervision of the financial services industry will fall under the Reserve Bank, and market conduct regulation and supervision of the industry under the FSB.

Some representatives of the financial services industry have already expressed opposition to aspects of the omnibus bill since its publication earlier this year, with warnings that it could have a significant impact on the industry.

Momoniat told the portfolio committee that there have been extensive discussions on the bill, and National Treasury would like interested parties to present evidence to the committee so that all views can be taken into account before the legislation is finalised.

He says much of the legislation is required in terms of international standards that have been introduced by the G20 group of developed countries to prevent a recurrence of the 2008 economic meltdown, which followed the sub-prime property lending crisis in the United States.

He says making legislation and regulators “much stronger, more intrusive and much tougher is in line with G20 commitments”.

Momoniat says the word “draconian” is used by the G20, although he did not apologise for using the word, too.

When challenged by members of parliament, the deputy director-general did, however, qualify “draconian” by saying the legislation will be “appropriately draconian”.

But, he says, the regulators require the additional powers so they can act “at the speed of light” when there are threats to the financial services industry or when “atrocious market conduct” leads to the exploitation of consumers.

Momoniat says the legislation will establish the FSB as the lead regulator over other regulators, such as the Council for Medical Schemes and the Department of Trade and Industry, and give precedence to FSB-administered legislation over other laws, such as the Consumer Protection Act.

Momoniat says the reason is that financial institutions need to be held to higher standards of consumer protection and market conduct, because the products sold by these institutions can have effects that are immediate or that can last for 70 or more years in the case of retirement savings products.

‘EXAMPLES ABOUND TO JUSTIFY TOUGHER LAWS’

There are plenty of examples to illustrate why the Financial Services Board (FSB), as the regulator of the financial services industry, needs additional powers, Ismail Momoniat, National Treasury deputy director-general, told Parliament this week.

He argued:

* Market conduct of the short-term insurance industry needs to be improved; the wording of and definitions in contractual documents for the entire financial services industry need to be standardised; and the ombuds system must be made more independent of the industry.

Momoniat says an example of what is wrong came with the way Rand Merchant Bank (RMB) and the industry had tried to intimidate the then Ombudsman for Short-term Insurance, Brian Martin, after he publicly warned consumers about an RMB Structured Products “comprehensive” motor vehicle policy that was anything but comprehensive. Your vehicle had to be “comprehensively” written off before RMB would pay. But policyholders’ understanding of the word “comprehensive” was that the insurance would cover them comprehensively, not that their vehicle had to be comprehensively destroyed.

Momoniat says Professor Robert Vivian, who has recently published articles criticising the Financial Services Laws General Amendment Bill, was part of the short-term insurance industry delegation that tried to intimidate Martin after he made his pronouncement. He says Vivian does not reveal in his articles that he has short-term insurance interests.

Momoniat also criticised RMB for not apologising for the product.

* Increased powers are needed for FSB inspection teams, to allow them to summon people and take possession of documentation, and to publish inspection reports when it is in the public interest to do so.

Momoniat also wants the FSB to be allowed to make on-site visits to unregulated entities that could be operating unlawfully.

(Recently, the FSB did not take pre-emptive action against asset manager, Herman Pretorius who ran a R1.8-billion Ponzi scheme, which has since collapsed, because the FSB said it was an unregulated product and did not have the powers to intervene. Pretorius fatally shot himself and an associate, Julian Williams, when the FSB did eventually take action.)

Momoniat says he is particularly concerned about how people such as J Arthur Brown in the Fidentia case and Simon Nash (executive chairman of appliance company Cadac) “abuse the legal system to delay their trials”, and also attempt to discredit the regulators in an effort to reduce the charges against themselves.

Momoniat says when false allegations are made against the FSB, the regulator should have the power to publish the information from inspection reports to allow it to dispel false claims and mis-information.

He did, however, concede that an initial draft of the legislation that would have prevented anyone from suing the FSB, whether it acted in good or bad faith, has been toned down. Aggrieved parties will be able to sue the FSB if they can show that it did not act with good intentions.


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