The Financial Sector Tribunal last week set aside a 2021 decision by the Financial Sector Conduct Authority (FSCA) to debar and impose a financial penalty of R2.5 million on Nigel Green, CEO of financial services group deVere.
In 2019, the FSCA accused Green and deVere of contravening the Financial Institutions (Protection of Funds) Act. Green was accused of failure to exercise proper care as a director of deVere SA, and on this basis the FSCA proposed his debarment as a director.
The tribunal found that Green did not contravene the stated act during the period he was a director of deVere SA (2008 to 2015).
The issue of Green’s debarment as a director of a financial services provider has been referred back to the FSCA.
The FSCA accused deVere of marketing of foreign collective investments schemes that were not approved by the Registrar of Collective Investments Schemes, as required under the Collective Investments Schemes Control Act.
The case dates back to 2010 when the Financial Advisory and Intermediary Services supervision department conducted an on-site visit at deVere SA and claimed the company was offering clients access to unapproved offshore investments through the deVere Fund Platform.
The case eventually ended up at the FSCA for investigation and the imposition of an administrative penalty of R250 million, later reduced to R2.5 million.
Green and deVere asked the tribunal to reconsider the penalties imposed on them by the FSCA.
The ruling last week applies to Green in his individual capacity.
The reconsideration of the deVere case has yet to be decided by the tribunal.
‘Not surprised’ this time – Green
“Whilst we were surprised by the FSCA’s initial decision, we are not surprised by the Tribunal’s ruling,” said Green in a statement.
“It’s clear that the case was overturned on the basis of both factual inaccuracies in the FSCA’s case against me and an incorrect application of laws.
“As per the Tribunal’s final ruling, it was found that I did not contravene the law and, therefore, that regulator was wrong to consider any action against me.”
As to Green’s claims that “the file [against him] is now closed,” the FSCA has a different view.
“The FSCA is considering the judgment and will decide on the way forward,” says Gerhard van Deventer, divisional executive for enforcement at the FSCA, adding that in the meantime, it is not correct, as Mr Green has stated, that the case is closed.
“The FSCA will consider whether it will take the case on appeal with reference to the penalty.
“Also, the debarment against Mr Green was specifically referred back to the FSCA for reconsideration. The FSCA must therefore now consider the debarment again.”
Still to be heard by the tribunal is the reconsideration of the FSCA’s penalty on deVere as a financial services provider.