 Summary Recent changes (June - July 2020) were made to the General Code of Conduct, Fit and Proper Requirements and Short Term Deposit Codes of Conduct to give effect to the RDR (retail distribution review), among other process that commenced long ago. Most of the changes that will affect an FSP are those contained in the General Code of Conduct. It is to be noted that most of the legislative changes that have an effect on FSP's come into effect only 6 months after publication. We summarise the changes here shortly and will further disseminate and assist our clients in the coming months to implement this. Fit and Proper Changes The bulk of the changes under Fit and Proper are administrative in nature such as aligning definitions across product legislation and FAIS legislation and correcting numbering so there is not too much that will affect you here. Notable changes to the regulations here are:
Changes to the General Code of Conduct Here are many changes that will impact the operation of an FSP in general. Close attention is to be paid here. Notable changes are:
Changes to the Short Term Deposit Code of Conduct These changes mainly apply to banks and are of an administrative nature where definitions are aligned to the new changes in the General Code of conduct. Not much to see here. Please the full set of notices here if you are feeling particularly sadistic and want to read the legislation yourself.
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We've recently received some calls from clients on the FSTC (Financial Sector Transformation Council) reporting BBBEE communication sent out by the FSCA on behalf of the FSTC. See the original communication here. To be clear, the FSTC is not to be confused with the FSCA. Although this does not fall in the realm of FAIS compliance we thought it is a good idea to perhaps just summarise the requirements and application thereof. Usually the BEE components of a business is handled internally/with HR or accountants in consultation with Verification Agents (BEE Compliance Officers) if need be. The FSTC is mandated to obtain BBBEE statistical data from entities operating in the financial services sphere on their progress relating to BBBEE. They send out a request once a year for statistical data so they can compile their annual report on the progress of Financial Institutions with the Financial Sector BBBEE codes. Who does this apply to? The sectors/companies asked to report are:
This Amended FSC does not apply to:
How do I report if I need/want to?
FIs were requested to submit the full final verification reports, to the FSTC no later than the end of the business Friday, 05 June 2020. All reports are to be submitted electronically via email to reporting@fstc.org.za with the subject: FSTC 2018/19 Report– (name of entity). In the past, however, they did allow entities to still submit after this date, however we cannot guarantee this. Should an entity encounter difficulty in providing the above-requested information they should contact the FSTC at reporting@fstc.org.za, or call (011)838 6696 or get in touch with their respective Trade Associations for more clarity Any Penalties?
 Just like with the Corona virus we are currently experiencing, prevention is better than cure in your financial services practice as a financial advisor. In this Blog Post we take a look at the new RDR (Retail Distribution Review) updates affecting the naming conventions of financial advisors that came out in December 2019. It is important to note that the RDR proposals are at stage 3 out of a possible 6. Stage 3 means “informal stakeholder consultation and/or technical work at an advanced stage”. Thus, the specifics of around the classes and impacts around it are still suggestions and will likely look different in the implementation stage. My bet is it will take more than a year to implement. Given the Coronavirus issue it might delay it further. Time will tell. Two Classes Essentially there will be two classes: PSA = Product Supplier Agent This is a person tied to a specific product supplier only. They may only sell their products. They are not allowed to opine or advise on other products in the market and are more subjective. RFA = Registered Financial Advisor This designation is for independent financial advisors. They can advise on other products in the market and can take a more objective stance. The above designations are for registration purposes only and client facing designations are still being deliberated on. The FSCA stated that one can only be one of the above designations and not both but space will be made for minimal exemptions. Other Impacts
For more information see the Discussion Paper from the FSCA here: https://www.fsca.co.za/Regulatory%20Frameworks/Pages/Treating-customers-fairly.aspx Comments and feedback to be provided to the FSCA via fsca.rdrfeedback@fsca.co.za by 31 March 2020.  The Financial Sector Conduct Authority (FSCA) issued a Press Release which states that the FSCA will be making an effort to protect their staff, the financial sector and aid Government efforts by using precautionary measures to contain the COVID-19 pandemic. What precautionary measures will the FSCA take to limit the sprad of COVID-19?
The FSCA cancelled all on-site inspections and will communicate new dates to the financial institutions affected. What FSCA activities will remain unchanged?
For more information on this topic:
 The FSCA paused their compliance reports last year due to them not being done with the new format compliance reports. Although we do not have written confirmation or any notice to this effect - we've heard from some of their staff that it also affects AUM reports and Handover reports (still to be confirmed). And it does not seem that we have any news on new compliance reports for this year. However, there is some other news. They are busy though, with onsite inspections. Some of our clients were recently inspected and only on FICA. From discussions with people in the industry they are doing inspections on a broad number of FSP's so you should be ready in case they come to visit you. You should focus on your FICA compliance ASAP. If you do not have the basics in place your are at risk of being fined. Yes, several FSP's have recently been fined for not complying with even the smallest aspects of FICA after the inspections were conducted (none of our clients though). Be ready for a FICA inspection - a few FSP's have been fined already What do you need to have in place?
How will the inspection happen? They will usually contact the Key Individual and inform them of the impending inspection. They will ask for certain documentation beforehand to peruse it before they visit you. They then provide you with a date on which they will arrive and state what you need to have ready on the day. You will likely not have a fun time during the inspection, but with our help we can make it a little less daunting. This is a quick summary of what to look out for. If you need assistance please let us know - we are here to help.  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. "There is a great deal of advertising that is much better than the product. When that happens, all that the good advertising will do is put you out of business faster." -Jerry Della Femina What you should do according to the FAIS Act FAIS Act Section 8(b): "ensure that a reference to the fact that such a licence is held is contained in all business documentation, advertisements and other promotional material;" 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
More information on the content of the Supervision Contract The agreement must:
For full information on these processes please see the relevant board notice here or contact us for more information.
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. Class of business training does count towards CPD hours but not Product Specific Training and RE exams (all not to be confused with CPD). If you need more info on these items please refer to this blog post or contact us. What must it cover?
CPD can only be provided by accredited CPD providers and can cover a broad range of subjects that you can choose from which must:
How much hours do I need? An FSP, key individual and representative authorised, approved or appointed to render or manage or oversee the rendering of financial services in respect of
Thus, it is important to know what class of business is and how many hours you need to complete based on this. Where can I do this? There are many providers that offer this (some of them good and others...we'll...not so much). We are also busy getting our online CPD training accredited, however, in the meantime here are some options you can approach for CPD training: Exemptions
Contact us if you need more information or advice on this topic. 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: "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 –
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:
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. |
by: Horizon Compliance teamCompliance Experts Archives
July 2020
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