The FAIS Ombud has given short shrift to brokers who recommend toxic and scam financial products, holding them personally liable. It is a move that is likely to see more brokers who engage in such dubious practices possibly losing their licences to practice financial services, if the Financial Services Board takes these issues seriously.
In the first case, Charles Pillai, the Ombud for Financial Services Providers,- held the broker and the financial services firm jointly and severally liable to pay their client his entire investment which was lost when the forex firm into which he invested went belly up insolvent. The investment was to pay him a return of R3 per month paid in quarterly tranches of R9 each.
He then became concerned. In September when his first return of R9 was overdue, Esterhuyse wrote to Fulcrum but received no reply.
Further emails also elicited no response. Then in June he received a letter saying that Fulcrum had registered a covering mortgage bond and was to pay creditors from the proceeds of that bond.
The next thing he heard was that Fulcrum was placed under liquidation. The liquidators also found that only a small portion of the funds were actually used for trading on the forex markets. He then questioned why the broker nevertheless continued with the investment.
After an analysis of all the information and the advice given, the Ombud stated: On this score, they failed dismally. The Ombud then held both Grobler and his company, Plum Portfolio Solutions Pty Ltd, jointly and severally liable, the one paying the other to be absolved.
He also said that it would be equitable to hold both the broker and his company liable in the circumstances. He also ordered them to pay the case fees of R As such they have a legal and moral responsibility to ensure that their clients are only invested in approved and appropriate products.
To do otherwise would defeat the objectives of the FAIS Act in ensuring consumer protection and safeguarding the integrity of the industry. In ruling that financial advisers are confined to recommend only those products defined by the FAIS Act, the Ombud is shutting the door on those unscrupulous advisers that abuse their licence and steer clients into dubious and risky investments.
These toxic products usually have little or no legislative oversight and when things go wrong as they usually do, the adviser hides behind the defence that these products fall outside the legislative net and hence that the FAIS Ombud has no jurisdiction to investigate.
Consumers are constantly told to invest and hence place their trust only in those advisers authorised and accredited by the Financial Services Board and as such when dealing with these individuals, consumers have a false sense of security.
It, therefore, goes without saying that Muriel Oosthuizen had a legal and moral responsibility to ensure that the monies were properly invested in a safe and secure manner.
Instead she took advantage of his trust and under the guise of investing in a conventional property investment, placed the monies in her own business. However, in reality, there is no guarantee at all. Additionally, there is no documentation whatsoever setting out the underlying basis and structure of the guarantee. Muriel Oosthuizen claimed that Mr Nebbe knew that it was a property investment and hence that the FAIS Act did not apply as she was not acting in her capacity as a financial adviser at the time.
The Ombud went further in stating: Complainant came to her for advice and as such she was bound to provide such advice in his best interests. One of the purposes behind the Act is to protect investors from products that in many respects have the nature; shape and form of a licensed investment but in reality are anything but that; the matter before me being but one example. Such advisers should then no deserve to be licensed as such. This determination sends out a very clear message and will undoubtedly give more than a few advisers that have dabbled in toxic products, sleepless nights.
They simply cannot recommend any other investments. Parliament has clarified the uncertainty that has prevailed in this area of law for some time now. This could prevent future loses , disappointments, legal disputes and reduce the number of cases that bring our profession into disrepute.
Unscrupulous brokers that sneak through the net and are found guilty must be made to pay back loses, have their licences revoked and then sent to Jail. This will help clean up! We all know that there are a large number of financial advisors, et al, that are crooks, similar to those found in any other industry in the country, be it professional or other.
As far as I am concerner many of the Ombuds come out from their comfort zones now and then, just to get some publicity in order to ensure job retention. Why are those who have overstepped the mark never nailed in a criminal court and sentenced to a term in prison? Until someone is sentenced in a criminal court, the job of the ombud is ensured, consequently the story will be repeated year in and year out!!!
No wonder brokers take full commiton — they take all the risk. The FSB and goverment are also responsible. They dump their responsibility on brokers. Take the FICA act for example: Goverment fails to get the criminals — now brokers and other financial services must do their dirty work… Or they must go to jail or pay up to R10 milj. Make a law and put your responsiblity into other hands???
Just imagine the free for all in the past — how many bitter tales have disappeared below the table. South Africa — a country for crooks and adventurers.
Give us their contact details……Ive emailed them many a times for direct contacts and asked for the way forward on investigations and theres been no contact made……. Wanneer beleggers geleenthede soek soek hulle makelaars, wanneer produkverskaffers produkte het soek hulle makelaars.
Party produkverskaffers kan so mooi gesiggie voorsit en dan verdwyn hulle en sien daar al wat oorbly wat Mr Charls P kan vervolg is die arme makelaar. Die kommisie is mos hopeloos te min vir die risiko??? Die swaard sny mos beide kante toe. Ek stem saam dat dit die regering se verantwoordelikheid is om produkverskaffers te monitor en dat dit darm net te maklik is om die arme verteenwoordiger uit te trek. Soos dit nou gaan, gaan jy in die toekoms net makelaars tussen die geskiedenis in die museum sien.
I have had to work two and a half years longer to make up for losses after the product flogger got his higher commission.
Planners especially older ones should stop believing everything the providers tell them and start questioning structures, fees etc. Good luck to you sir, maybe you should speak to a certain Mrs. Kennedy just Google Louise Kennedy and Sharemax! Don't have an account? Sign up for FREE. Steinhoff International, African Rainbow Capital investment update and South 32 business and strategy update.
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