The Appeal Board first came into existence by virtue of section 26 of the Financial Services Board Act, No. 97 of 1990 (the FSB Act) and was re-established in expanded form and with amended procedures under the Financial Services Laws General Amendment Act, No 22 of 2008. The latter Act introduced sections 26A and 26B to the FSB Act which now deal with the Appeal Board, its panels and appeal proceedings.
The Appeal Board consists of as many members, appointed by the Minister of Finance (the Minister), as the Minister considers necessary. The Chairperson of the Appeal Board (the Chairperson) must be an advocate or attorney with at least 10 years’ experience or a retired judge. Other members must include persons with wide experience and expert knowledge of the financial services industry.
The Appeal Board is an independent tribunal comprising members who are neither employees of the FSB nor active participants in the financial services industry.
Each member, including the Chairperson, serves for a term of three years but may be re-appointed for a further term.
The Secretary of the Appeal Board (the Secretary) is appointed by the Executive Officer and is responsible for the administrative and organisational arrangements relating to the appeal process.
Who may appeal to the Appeal Board?
The following persons may appeal:Any person aggrieved by a decision of the Executive Officer of the FSB. The Executive Officer of the FSB is also the collective of the different Registrars established by various statutory enactments contained in legislation dealing with the regulation and supervision of financial institutions (other than banks). It follows that an aggrieved person may appeal against a decision by the Registrar.
Any person aggrieved by a determination of the Ombud for Financial Services Providers (FAIS Ombud) made in terms of section 28 of the Financial Advisory and Intermediary Services Act, No. 37 of 2002 (the FAIS Act) including a determination by the FAIS Ombud in the capacity as the Statutory Ombud referred to in the Financial Services Ombud Schemes Act, No 37 of 2004 (“Statutory Ombud”).Any person aggrieved by a decision of an exchange, central securities depository and claims officer as contemplated by the Securities Services Act, No 36 of 2004.Any other person aggrieved by a decision made under a law which provides for an appeal against that decision to the Appeal Board.
How is an appeal Lodged?
A notice of appeal must be lodged with the Secretary within thirty days of the person becoming aware of, or ought to have become aware of, the decision. The full procedure for lodging an appeal is set out in the regulations promulgated in terms of section 26B (19) of the FSB Act which must be read with the Guidelines on Proceedings of the Appeal Board.
Any person aggrieved by a determination of the FAIS Ombud or the Statutory Ombud must first obtain leave to appeal from either those Ombuds respectively or, if leave has been refused, from the Chairperson. Once leave to appeal has been granted, a person may lodge a notice of appeal with the Secretary. The procedure for lodging those appeals is set out in rule 12 of the Rules on Proceedings of the Office of the Ombud for Financial Services Providers, 2003 and the regulations promulgated in terms of section 26B(19) of the FSB Act.
Proceedings at the hearing of an appeal
The procedure at the hearing of an appeal is determined by the Chairperson of the panel hearing the appeal. Generally, the Appeal Board is restricted to information which was available to the decision-maker at the time of making the determination or decision. However, any person who wishes to submit oral or written evidence or factual information or documentation other than what was available to the decision-maker, must apply in writing for leave to do so to the chairperson of the panel designated to hear the appeal.
Parties are usually represented by legal representatives, although legal representation is not obligatory.
Appeal Board’s decision
The decision of the Appeal Board is final. A party who is dissatisfied with the Appeal Board’s decision has a right of review to the High Court if there are grounds for reviewing the decision.