Perhaps the most important part of being a Financial Advisor is that you need to market or advertise your services. After all, how will people know you exist if you do not advertise in some way? Because it is such an important part of a business you as an FSP need to know what you should include in your marketing and what you should not. 

It is important that you always make reference to your license in your adverts and business documentation. Altough not specifically required, a good practice is also to add it to your email signature. You also need to provide a disclosure of who you are and what you are allowed to do when you first see or speak to clients. If your advertising is done via phone then you need to record all the calls and keep them for future reference.

Above all else, do not promise something false or overstated.

The above-mentioned is just a short summary but please feel free to read a extract from the relevant FAIS Act rules on the subject matter below. Remember when you read this that direct marketers are FSP's that advertise via phone.

FAIS Act General Code of Conduct Section 14 and 15:

14.
(1)     An advertisement by any provider must -
 
(a)     not contain any statement, promise or forecast which is fraudulent, untrue or misleading;
 
(b)     if it contains-
 
(i)      performance data (including awards and rankings), include references to their source and date;
 
(ii)     illustrations, forecasts or hypothetical data
 
(aa)    contain support in the form of clearly stated basic assumptions (including but not limited to any relevant assumptions in respect of performance, returns, costs and charges) with a reasonable prospect of being met under current circumstances;
 
(bb)   make it clear that they are not guaranteed and are provided for illustrative purposes only; and
 
(cc)    also contain, where returns or benefits are dependent on the performance of underlying assets or other variable market factors, clear indications of such dependence;
 
(iii)    a warning statement about risks involved in buying or selling a financial product, prominently render or display such statement; and
 
(iv)    information about past performances, also contain a warning that past performances are not necessarily indicative of future performances; and
 
(c)     if the investment value of a financial product mentioned in the advertisement is not guaranteed, contain a warning that no guarantees are provided.
 
(2)     Where a provider advertises a financial service by telephone-
 
(a)     an electronic, voicelogged record of all communications must be maintained. Where no financial service is rendered as a result of the advertisement, such record need not be maintained for a period exceeding 45 days;
 
(b)     a copy of all such records must be provided on request by the client or the registrar within seven days of the request;
 
(c)     all the information required by sections 4(1)(a) and (c) and 5(a) and (c) shall not be required: Provided that the client is provided with basic details (such as business name and telephone number or address) of the provider or relevant product supplier, and of their relevant compliance departments: Provided further that, if the promotion results in the rendering of a financial service, the full details required by those sections are provided to the client in writing within 30 days of the relevant interaction with the client.
 
(3)     Where a provider advertises a financial service by means of a public radio service, the advertisement must include the business name of the provider.
 
15.
(1)     A direct marketer must, when rendering a financial service to or on behalf of a client, at the earliest reasonable opportunity furnish the client with the following particulars:
 
(a)     the business or trade name of the direct marketer;
 
(b)     confirmation whether the direct marketer is a licensed financial service provider and details of the financial services which the direct marketer is authorised to provide in terms of the relevant license and any conditions or restrictions applicable thereto;
 
(c)     telephone contact details of direct marketer (unless the contact was initiated by the client);
 
(d)     telephone contact details of the compliance department of the direct marketer;
 
(e)     whether the direct marketer holds professional and indemnity insurance;
 
Provided that where the direct marketer is a representative, the information contemplated in sub-paragraphs (a) to (c) above must be provided in respect of the provider to which the representative is contracted.
 
(2)     When providing a client with advice in respect of a product, a direct marketer must at the earliest reasonable opportunity:
 
(a)     make enquiries to establish whether the financial product or products concerned will be appropriate, regard being had to the client’s risk profile and financial needs, and circumstances;
 
(b)     furnish the client with the following particulars where appropriate:
 
(i)      business or trade name of the product supplier;
 
(ii)     legal status and relationship with product supplier;
 
(iii)    the following details in respect of the product:
 
(aa)    Name, class or type of financial product concerned;
 
(bb)   Nature and extent of benefits to be provided;
 
(cc)    Manner in which such benefits are derived or calculated, with specific reference to the underlying assets of any investment component and the manner in which the value of such investment component is determined;
 
(dd)   Monetary obligations assumed by the client as well as manner of payment;
 
(ee)    Whether cooling off rights are offered and, if so, procedures for the exercise of such rights;
 
(ff)    Any material investment or other risks associated with the product;
 
(c)     take reasonable steps to establish whether the financial product identified is wholly or partially a replacement for an existing financial product of the client and, if it is such a replacement, inform the client of actual and potential financial implications, costs and consequence set out in clause 8(1)(d) of this Code before any transaction is concluded.
 
(3)     A direct marketer must prior to the conclusion of any transaction and where a contract is concluded provide the client with the following information, provided where such information is provided orally, it must be confirmed in writing within 30 days:
 
(a)     Telephone contact details of the compliance department of the product supplier;
 
(b)     To what extent the product is readily realisable or the funds concerned are accessible where appropriate;
 
(c)     Details of manner in which benefits will be paid;
 
(d)     Any restrictions on or penalties for early termination or withdrawal from the product, or other effects, if any, of such termination or withdrawal;
 
(e)     Charges and fees to be levied against the product including the amount and frequency thereof and where the product has an investment component, the net investment amount ultimately invested for the benefit of the client;
 
(f)     Commission, consideration, fees, charges or brokerages payable to the direct marketer by the client, or by the product supplier or by any other person;
 
(g)     On request, the past investment performance of the product, where applicable, over periods and at intervals which are reasonable with regard to the type of product involved;
 
(h)     Consequences of non-compliance with monetary obligations assumed by the client and any anticipated or contractual escalations, increases or additions;
 
(i)      In the case of an insurance product in respect of which provision is made for increase of premiums, abbreviated disclosures of such contractual increases;
 
(j)      Concise details of any special terms and conditions, exclusions, waiting periods, loadings, penalties, excesses, restrictions or circumstances in which benefits will not be provided;
 
(k)     Any guaranteed minimum benefits or other guarantees where appropriate.
 
(l)      That recordings of telephone discussions (where applicable) will be made available to the client on request
 
(4)     A direct marketer must provide a client (where appropriate) with a record of advice as contemplated in section 9(1)(a) to (d) in writing.
 
(5)     A direct marketer shall be obliged to record all telephone conversations with clients in the course of direct marketing and must have appropriate procedures and systems in place to store and retrieve such recordings. Records of advice furnished to a client telephonically need not be reduced to writing but a copy of the relevant voicelogged records must be provided, on request, to the client or Registrar within a reasonable time.
 
(6)     Notwithstanding the above or contrary provision in the code, such of the information required to be provided to the client in terms of clauses 4, 5 and 7 of this Code as has not yet been recorded or provided to the client in writing before the conclusion of any transaction, must be provided to the client in writing within 30 days thereafter.

For a FAIS Rep to be supervised she needs to meet certain requirements and the FSP and KI comply with certain parameters. Here we shortly sum up the items that need to be covered. We also look into what needs to be covered in the Supervision Agreement as new regulations have been issued that impacts that content.

Summary of Supervision Requirements

1. The Rep must meet the entry level requirements for qualifications;
2. The Rep must finish the RE exams, Class of Business Training, CPD requirements and experience requirements within the set periods;
3. There must be a supervision agreement that conforms to the requirements of the FSCA in terms of content;
4. The FSP must complete its duties during the supervision period;
5. The Supervisor must complete her duties during the period;
6. The Rep must complete her duties during the period;
7. The intensity of the supervision must be of a commensurate level with regard to the representative skill level, the risk to clients and nature of the financial services rendered.

More information on the content of the Supervision Contract

​The agreement must:

1. Identify who the Supervisor is;
2. Set out tasks and functions the Rep performs and categories under which she will render services;
3. Set out knowledge and skills required to perform the job correctly;
4. Set out the training needs of the Rep
5. Set out supervision arrangements such as:

• ​Duties of both parties
• Supervision Methodology and Procedures
• Assessment Procedures and intervals thereof
• Referral to the intensity of supervision
• Sign-off criteria by the supervisor

For full information on these processes please see the relevant board notice here or contact us for more information.

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According to FAIS regulation a KI or Rep in an FSP needs to comply with the CPD (continuous professional development) requirements.  CPD cycles starts on 1 June to 31 May of every year. Every FSP must keep a register of who has done what and it must have a Policy that talks to its planning on training and CPD.

The RDR (Retail Distribution Review) process started by our regulator, the FSCA, has resulted in the amendment of certain pieces of legislation. Good times. Coupled with that and the Twin Peaks changes there are still more changes to come. One of the positively thorny changes that directly affects the industry in a big way is the manner in which brokers/advisers are compensated. In this post we will briefly look at the current state of play with regards to asking a client for addition fees above and beyond agreed/regulated commissions. We will look at Short-Term Insurance, Long-Term Insurance, Other Financial Products and Leads/Referrals.

Short-Term Insurance (STI)
So it is probably no secret to most of the Short-Term Insurance Brokers among you that broker fees structures that Insurers can collect on your behalf have changed and was implemented via the new PPR (Policy Holder Protection Rules) under rule 12.4 and 12.4.1 issued by the FSCA Insurance Department.

By 15 December 2018 Insurers will have to comply with this rule and it will also unavoidably have an affect on the the short-term insurance broker as well to does fee addition costs to the client.

The requirement states:
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"An insurer may not facilitate the deduction or charging of any fee payable by a policyholder to an intermediary or any other person, unless the insurer has satisfied itself that the amount and purpose of the fee have been explicitly agreed to by the policyholder in writing, and that it appears from such agreement that the fee –

• relates to an actual service provided to a policyholder;
• relates to a service other than rendering services as an intermediary; and
• does not result in the intermediary or other person being remunerated for any service that is also remunerated by the insurer."

Most Insurers have issued notices to linked brokers to obtain such approvals from clients before 15 December. In future it is also a good idea to have this kind of document signed when signing up a new client or incorporating it into your service agreement with your client or other document (such as the ROA, NDA etc). As long as the client agrees to it.

Long-Term Insurance (LTI)
Long-term Insurance brokers/intermediaries never had the dispensation that short-term insurance brokers had to even collect extra fees. Now the position looks exactly the same in the Long-Term Insurance Act and the wording of the PPR rule concerning additional fees is exactly the same as the rule in the Short-Term Insurance Act above, even to the number or the rule. So it can be argued that brokers can now collect extra fees if the clients do agreed to it.

So here, also, if you want to collect extra fees you need to obtain client consent in the same way and it must comply in the same way by the same date.

Other Brokers/Advisers/Intermediaries
My opinion on others outside the space of LTI and STI that are FAIS approved and do ask extra professional fees to do as follows. Outside of LTI and STI fees are not currently regulated but the regulator is looking at it for the future.

Disclose it to the client and have them agree to it in writing if you are asking extra fees. Enumerate what it is for and makes sure the client understands what she is paying for. A good rule of thumb is not to make the client pay double for something. So when fees are required make sure you have not already been paid for those services. This will ensure you do not fall foul of TCF requirements (Treating Clients Fairly).

Referral Fees and Leads
This is not currently regulated but it is on the table for phase 2 of RDR which is still under review and research. A suggestion is to keep a close eye on this space. At minimum, make sure there is an agreement in place if you are getting paid for or receiving referrals and make sure this is disclosed to the client by the broker/adviser.

Until next time, may your business be fruitful and your compliance fit for purpose!

From the 1st of April 2018 (I'm sure you are quire tired of this date by now) the FSCA has changed the debarment process and rules a bit. In the past an FSP could debar the person themselves or could refer it to the FSB (now FSCA) to investigate and debar the person. The debarment was done under section 14A of the Act if the FSB did the conducted the investigation and debarment but that section is new removed by the Financial Sector Regulation Act 9 of 2017. This means that the responsibility rests with the FSP to debar any Key Individual or Representative that:

1. Does not meet the fit and proper requirements; and
2. has contravened or failed to comply with the provisions of the FAIS Act in a material manner.

The FSCA might only double check the reasons for debarment after it is done by the FSP. It is interesting to note that an FSP can do this if the person was a representative of the FSP at the time that the reasons for debarment occurred. Thus, it would seem, one can debar a person even if the person has left the FSP. This might open a can of worms where scores are to be settled and revenge is exacted but this may further be clarified once a guidance document is published.

At the time of writing this there is no guidance document on the process but it will be published in the near future as the FSCA stated on their website. The new forms for submitting the debarment to the FSCA can be found here.

For the full procedure according to the FAIS ACT you can read the extract from the amended FAIS Act below:

(1)
(a)     An authorised financial services provider must debar a person from rendering financial services who is or was, as the case may be-
 
(i)      a representative of the financial services provider; or
 
(ii)     a key individual of such representative,
 
if the financial services provider is satisfied on the basis of available facts and information that the person-
 
(iii)    does not meet, or no longer complies with, the requirements referred to in section 13(2)(a); or
 
(iv)    has contravened or failed to comply with any provision of this Act in a material manner;
 
(b)     The reasons for a debarment in terms of paragraph (a) must have occurred and become known to the financial services provider while the person was a representative of the provider.
 
(2)
(a)     Before effecting a debarment in terms of subsection (1), the provider must ensure that the debarment process is lawful, reasonable and procedurally fair.
 
(b)     If a provider is unable to locate a person in order to deliver a document or information under subsection (3), after taking all reasonable steps to do so, including dissemination through electronic means where possible, delivering the document or information to the person’s last known e-mail or physical business or residential address will be sufficient.
 
(3)     A financial services provider must-
 
(a)     before debarring a person-
 
(i)      give adequate notice in writing to the person stating its intention to debar the person, the grounds and reasons for the debarment, and any terms attached to the debarment, including, in relation to unconcluded business, any measures stipulated for the protection of the interests of clients;
 
(ii)     provide the person with a copy of the financial services provider’s written policy and procedure governing the debarment process; and
 
(iii)    give the person a reasonable opportunity to make a submission in response;
 
(b)     consider any response provided in terms of paragraph (a)(iii), and then take a decision in terms of subsection (1); and
 
(c)     immediately notify the person in writing of-
 
(i)      the financial services provider’s decision;
 
(ii)     the persons’ rights in terms of Chapter 15 of the Financial Sector Regulation Act; and
 
(iii)    any formal requirements in respect of proceedings for the reconsideration of the decision by the Tribunal.
 
(4)     Where the debarment has been effected as contemplated in subsection (1), the financial services provider must-
 
(a)     immediately withdraw any authority which may still exist for the person to act on behalf of the financial services provider;
 
(b)     where applicable, remove the name of the debarred person from the register referred to in section 13(3);
 
(c)     immediately take steps to ensure that the debarment does not prejudice the interest of clients of the debarred person, and that any unconcluded business of the debarred person is properly attended to;
 
(d)     in the form and manner determined by the Authority, notify the Authority within five days of the debarment; and
 
(e)     provide the Authority with the grounds and reasons for the debarment in the format that the Authority may require within 15 days of the debarment.
 
(5)     A debarment in terms of subsection (1) that is undertaken in respect of a person who no longer is a representative of the financial services provider must be commenced not longer than six months from the date that the person ceased to be a representative of the financial services provider.
 
(6)     For the purposes of debarring a person as contemplated in subsection (1), the financial services provider must have regard to information regarding the conduct of the person that is furnished by the Authority, the Ombud or any other interested person.
 
(7)     The Authority may, for the purposes of record keeping, require any information, including the information referred to in subsection (4)(d) and (e), to enable the Authority to maintain and continuously update a central register of all persons debarred in terms of subsection (1), and that register must be published on the web site of the Authority, or by means of any other appropriate public media.
 
(8)     A debarment effected in terms of this section must be dealt with by the Authority as contemplated by this section.
 
(9)     A person debarred in terms of subsection (1) may not render financial services or act as a representative or key individual of a representative of any financial services provider, unless the person has complied with the requirements referred to in section 13(1)(b)(ii) for the reappointment of a debarred person as a representative or key individual of a representative.

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With the advent of the new FAIS Fit and Proper amendments the Financial Services environment has been shaken up a bit. Due to the complex nature of the requirements and short deadlines many have been left in the dark as to what exactly they should do and how. As usual we aim to quickly tease out some of the basic elements of what is in store. If you need more in depth details please contact us for advice.

​Product Specific training is intended to address the specific characteristics that differ from the general characteristics of products in the market. Product Specific training is usually provided by the FSP’s product supplier and must be done by KI’s and reps before rendering or overseeing financial services, as applicable.

Class of Business Training, on the other hand, is intended to address training in the subclasses of each product, as identified by the FSCA and must be done by KI’s and reps before rendering or overseeing financial services, as applicable. Only accredited provider or education institution can provide this type of training. At this stage there are only limited providers that offer this training.

For Product Specific training:
​Appointed before 1 April 2018 (excl. supervision):

• Deemed to have completed product specific training for the financial products for which they were authorised or appointed.
• The above does not apply to amendments to financial products where those amendments occurred after 1 April 2018.

Reps under supervision @ 1 April 2018:

• Has 3 months to comply from 1 May 2018.
• Hence, they have until 1 August 2018 to complete product specific training.

Appointed after 1 April 2018 but before 1 May 2018:

• Has 3 months to comply from 1 May 2018.
• Hence, they have until 1 August 2018 to comply.

We advise all FSPs to contact the product providers with whom they do business to enquire about product specific training.

For Class of Business training:
​Reps & KI’s of Cat II, IIA, III, IV and Reps of Cat I: Appointed before 1 April 2018 (excl. supervision):

• Deemed to have completed COB training in respect of that COB.

KI’s of Cat I: Appointed before 1 April 2018 (excl. supervision):

• Key Individual is deemed to have completed COB training in respect of that COB
• This KI must inform the registrar within 6 months (@ 1 October 2018) of those classes of business it currently manages and oversees in respect of all FSPs for which he/she is approved
• This information must be submitted as required by the registrar

Reps under supervision @ 1 April 2018:

• Has 12 months to comply from 1 August 2018.
• Hence, they have until 1 August 2019 to complete COB training.

Appointed after 1 April 2018 but before 1 August 2018:

• Has 12 months to comply from 1 August 2018.
• Hence, they have until 1 August 2019 to comply.

It remains to be seen how many FSP's will be compliant in time with the above-mentioned due dates, however we expect some teething problems. Never a dull moment in the state of constant change in the financial services industry.

Bob Dylan sang,  "The times they are a changin'...". This song is especially relevant in the wake of the ongoing regulatory changes and we need to keep up with them if we want to keep our eye on the horizon (see what I did there?). In line with the Twin Peaks changes, on 1 April the regulator we all know and love as the FSB (Financial Services Board) has changed its name to the FSCA (Financial Sector Conduct Authority). Most of the staff complement is the same for now but will likely change a bit during the transition period. The website itself seems to still have allot of work that needs to be done.

Although the guardhouse has a new coat of paint, FAIS (the Financial Advisory and Intermediary Services Act) itself is still keeping watch. It does have a few new accoutrements in the form of Fit and Proper amendments. These changes include:

There is a big move towards a principles based approach of regulation and it will be interesting to see how the FSB will enforce this and whether they will provide further guidelines on some of the gray areas. 

Have a look at the new FSCA website and let us know what you think. The old FSB site will still be up and running for a while during the transition phase (sorry if the link is no longer working due to obvious reasons).
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