Published Date: September 6, 2023

Introduction:

It is not uncommon for financial services representatives (“the representatives”) who are debarred to run out of time to file their reconsideration applications. There have been, over the years, various reasons submitted to the Financial Services Tribunal (‘the Tribunal”) trying to condone the late filing of such applications. Some of the reasons are meritorious and compelling whereas others are hollow and shallow – hence some succeed whilst others fail. Whatever the reason is for the delay, it is encouraging that the Financial Sector Regulation Act (“the FSR Act”) makes provision for condonation for the late filing of reconsideration applications. Knowing the legal position regarding such applications and adopting an appropriate approach plays a crucial role and may, in some cases, be decisive whether a condonation application is granted. It is critical that condonation applications are thoroughly considered and well prepared as failure to do so may deprive a representative an opportunity to have the debarment decision considered/overturned. If the condonation application fails, the Tribunal does not consider the merits of the application at all – even if the representative has a good case to challenge a debarment decision. It is thus necessary to zoom into some of the legal considerations relating to such condonation applications.

The legal considerations:

Section 230(2)(b) of the FSR Act regulates the position relating to the condonation for the late filing of reconsideration applications. It provides that an application for reconsideration must be made “within 60 days after the applicant was notified of the decision, or such longer period as may on good cause be allowed”. (Emphasis added). The FSR Act then states that where the applicant had requested reasons in terms of Section 229, the applicant must apply for a reconsideration of a decision within 30 days after the statement of reasons was given to him or her. In summary, the applicant will have either 30 or 60 days to apply for a reconsideration, depending on whether reasons for the debarment decision were requested. In the Tribunal, there is no dies non – see para 9 of Simelane v OUTsurance Insurance Company Limited.

Whilst each case will be decided on its own merits and its peculiar circumstances, there are generally factors applicable that the Tribunal will take into account. One consideration would be the length of delay i.e., how late is the applicant with the filing of the reconsideration application. The lengthier the delay, the more difficult it will be for the applicant to justify unless, of course, there are plausible reasons for such a delay. Secondly, the applicant would need to demonstrate reasonable prospects of success (on the merits of the actual matter). A bare denial, as the Tribunal has held on many occasions, will not assist the applicant. In addition, the actual reasons for the delay are considered. If, for example, the applicant was hospitalised and could not attend to the necessary to ensure compliance, s/he would have a good reason to justify failure to file the reconsideration application timeously. Furthermore, the “prejudice” factor does play a role. The parties will consider: (i) whether there will be any prejudice to the Financial Services Provider (“the Provider”) and/or any other party that is involved if the condonation is granted; (ii) if so, the extent thereof.

Conclusion:

Condonation applications require prompt action and must be prepared with an understanding of statutory requirements regulating such applications. The debarred representatives must strive to file their reconsideration applications timeously, however, where this is not possible, it would be prudent to appoint a legal representative to assist in preparing a sound condonation application. There are cases where a representative, notwithstanding having a ‘fighting chance’ on the merits, ends up failing to have a debarment decision reversed because of the failure to prepare the condonation application properly. The Tribunal makes its decisions based on what the parties place before it.

Mtho Maphumulo
Senior Associate | Litigation Attorney