CASE NO: FSP64/2026
In the matter between:
JABULILE TLHAPANE Applicant
And
MOSO CONSULTING SERVICES (PTY) LTD Respondent
Tribunal panel: LTC HARMS (CHAIR) & ADV SM MARITZ
Decision on Papers:
Date of decision: 19 August 2026
Summary: Reconsideration in terms of section 230 of the Financial Sector Regulation
Act 9 of 2017 of a debarment effected under section 14(1) of the Financial Advisory
and Intermediary Services Act 37 of 2002 — condonation — debarment effected on
the outcome of an employment disciplinary enquiry without compliance with section
14(3) — application unopposed – debarment set aside without remittal.
___________________________________________________________________
DECISION
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A. INTRODUCTION
I I
.JIIIII[.
Financial Services
Tribunal
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1. The applicant seeks reconsideration in terms of section 230 of the Financial
Sector Regulation Act 9 of 2017 (“the FSR Act”) of a decision of the respondent,
MOSO CONSULTING SERVICES (PTY) LTD (“the respondent”), taken on 12
April 2024 to debar her in terms of section 14(1) of the Financial Advisory and
Intermediary Services Act 37 of 2002 (“the FAIS Act”). The ground recorded on
the prescribed notification form, and on the register of debarred persons
maintained by the Financial Sector Conduct Authority (“the Authority”), is that
she does not comply with the personal character qualities of honesty and
integrity.
2. The respondent is an authorised financial services provider. Its business
includes acting as a medical scheme broker for large employer clients, among
them a metropolitan municipality.
3. The application was delivered on 19 June 2026, some twenty-six months after
the debarment, and condonation is sought. In terms of the Tribunal rules an
application for reconsideration must be made within 60 days after the applicant
was notified of the decision or within 30 days after the applicant was given a
statement of reasons under section 229 or such longer period as may on good
cause be allowed by the Tribunal. The applicant was never notified of the
debarment at all. She learnt of it only when a prospective employer conducted
compliance checks after a successful interview and informed her that her
appointment could not proceed, and she acted promptly thereafter. Her
explanation is inherently probable, is borne out by the record, and is accepted
by the respondent. The delay is in truth a consequence of the very failure of
which she complains. Her prospects of success are strong, the prejudice to her
is severe and continuing, and there is no prejudice to the respondent. Good
cause has been shown and condonation is granted.
4. The application is not opposed. By letter dated 30 June 2026, signed by its key
4. The application is not opposed. By letter dated 30 June 2026, signed by its key
individual, the respondent records that it does not oppose condonation, that it
accepts the applicant’s explanation for the delay, and that it consents to the
uplifting and removal of the debarment recorded against her name. It advances
no defence of the debarment on the merits.
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5. The parties waive their rights to a formal hearing. Accordingly, the matter is
decided on the documents comprising the record. That the application is
unopposed does not relieve the Tribunal of the duty to satisfy itself that a proper
basis exists for the relief sought. A debarment is administrative action taken
under a statutory power, it is recorded on a public register maintained in terms
of section 14(7) of the FAIS Act, and it exists for the protection of the public. It
is not a matter which the parties may dispose of by agreement between
themselves.
B. FACTUAL BACKGROUND
6. The applicant was employed by the respondent as its Manager: Customer
Services. On her undisputed account, her responsibilities were administrative
and concerned customer service operations and the management of the
respondent’s call centre. She did not handle client funds, provide financial
advice, act as a broker, perform sales functions or serve as a regional manager.
In relation to members of the medical schemes administered through the
respondent, she arranged and conducted courtesy calls and compiled reports,
which were reviewed and approved by her senior manager before submission.
7. The respondent’s prescribed notification form describes the applicant as a
debarred representative, but nothing else in the record establishes that status.
Section 1(1) of the FAIS Act defines a “representative “as a person who renders
a financial service to a client for or on behalf of a provider. It expressly excludes
a person rendering clerical, technical, administrative or similar services in a
subsidiary or subordinate capacity where those services neither require the
exercise of judgment nor lead a client to a specific transaction in respect of a
financial product in response to general enquiries. The respondent produced no
employment contract, mandate or extract from the register of representatives
which it is required by section 13(3)(a) to mai ntain. The significance of this
which it is required by section 13(3)(a) to mai ntain. The significance of this
omission is addressed below.
8. The conduct giving rise to the debarment occurred in March 2024 and
concerned the respondent’s brokerage relationship with a municipal client. On
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19 March 2024, the municipality’s Assistant Director: Salaries informed the
respondent’s key individual that many members reflected in the February head
count report had joined the medical scheme before 2020. She sought instead
to establish how may municipal employees had signed broker notes with other
brokers. On 20 March 2024, the key individual replied that he received daily
movement notifications, which he distributed to the relevant managers, and that
he had instructed the applicant to extract information from September 2023
onwards. The exercise was subsequently narrowed to broker-noted members
from December 2023.
9. On 25 March 2024 the municipal official escalated the matter, stating that the
information should be readily available and that she intended to approach the
scheme. At 09h45, the key individual forwarded her email to the applicant,
describing the failure to complete the task as bordering on incompetence, and
required an answer by 12h00. At 10h18, the applicant reported that she had
assigned eight consultants to telephone the members, each with approximately
60 members to verify, but that the scheme would verify only five members per
call. At 13h41, she reported that 170 members remained unverified because
the scheme would not conduct further verifications, given the volume already
undertaken and the effect on its incoming calls. This is independently
corroborated by an email from the scheme at 13h25 recording an influx of calls
from the respondent’s two broker codes, resulting in its internal queues being
breached, and enquiring whether the respondent’s staff required training to
retrieve the information directly from the scheme’s adviser platform. The
applicant forwarded that email to the key individual at 13h54.
10. At 16h34 that day the applicant forwarded from her work email account to her
personal email address an email containing 24 attachments totalling
approximately 31 MB. The attachments included production reports for three
approximately 31 MB. The attachments included production reports for three
municipal employers for January 2020 to March 2023, broker transfer
correspondence and scheme notifications. A sample page of one report
contains members’ initials, surnames, identity and membership numbers,
broker-note dates, employers and schemes.
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11. On 9 April 2024, the key individual notified the applicant to attend a disciplinary
hearing on 12 April 2024. She faced two charges of gross misconduct. The
first concerned her alleged failure to carry out a reasonable and lawful
instruction requested by the municipality. The second alleged dishonesty in that,
on or about 25 March 2024, she had transmitted client information relating to
2020 to 2023 to her personal email address without authorisation and following
her suspension, thereby compromising the information of more than 5 000
members and breaching material terms of her employment contract. The notice
recorded her rights to representation by a colleague, to call witnesses and to
state her case. It identified the key individual as the charging officer and the
independent chairperson as “ to be advised”. It made no reference to possible
debarment, the fit and proper requirements or the applicant’s alleged status as
a representative. The applicant acknowledged receipt on the same day.
12. The disciplinary hearing proceeded on 12 April 2024. No ruling, reasons,
minutes or transcript are before the Tribunal, nor is the chairperson identified.
A letter dated 18 April 2024 records only that the chairperson found the
applicant guilty as charged and, after considering the mitigating and aggravating
circumstances, terminated her employment with effect from 12 April 2024.
13. The applicant was debarment on 12 April 2024, the day of the disciplinary
hearing and six days before its written outcome. The key individual completed
and signed the debarment notification form on 8 May 2024. The record contains
no notice of an intention to debar, no statement of the grounds and reasons for
the proposed debarment, no copy of the respondent’s written debarment policy
and procedure, and no notice to the applicant that she had been debarred.
C. APPLICANT’S GROUNDS OF RECONSIDERATION
14. The applicant contends that she was neither informed that debarment
14. The applicant contends that she was neither informed that debarment
proceedings had been instituted, nor given written notice of an intended
debarment. She was afforded no opportunity to make representations or
present her version before the decision was taken. She further says that she
has never been furnished with particulars of the conduct said to demonstrate
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lack of honesty and integrity, relies on the nature of her position and duties
described above, and points out that no client suffered financial prejudice or
loss.
15. As to the first charge, the applicant relies on the respondent’s evidence pack,
which records that she was given an exercise to complete. She says this
confirms that the task formed part of an assessment rather than her ordinary
responsibilities to the client, and that she completed and submitted it, although
it was later considered inadequate. She maintains that responsibility for the
client’s headcount, including terminations and activations, rested with the billing
manager, who compiled and submitted the monthly report, and that the regional
manager was accountable because the client portfolio fell within that
department.
16. As to the second charge, the applicant says that she forwarded the emails
because her suspension letter lacked sufficient detail and she did not know what
to expect or what information she would require to prepare her response. She
contends that there is no evidence that she retained the information for an
improper purpose or intended to misappropriate it, and that any allegation to
that effect is speculative. She asks that the debarment be found procedural
unfair and set aside.
D. THE STATUTORY FRAMEWORK
17. Section 14(1)(a) of the FAIS Act obliges an authorised financial services
provider to debar from rendering financial services a person who is or was its
representative, if the provider is satisfied, on the available facts and information,
that the person no longer meets the requirements referred to in section 13(2)(a),
or has materially contravened or failed to comply with the Act. Section 14(1)(b)
requires reasons for debarment to have occurred and become known to the
provider while the person was a representative. The requirements referred to
in section 13(2)(a) are the fit and proper requirements determined under section
in section 13(2)(a) are the fit and proper requirements determined under section
6A of the FAIS Act, presently contained in Board Notice 194 of 2017, and
include the personal character qualities of honesty and integrity.
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18. Section 14(2)(a) requires the provider, before effecting a debarment, to ensure
that the debarment process is lawful, reasonable and procedurally fair. Section
14(3) prescribes the procedure. Before debarring a person, the provider must
give adequate written notice of its intention to debar, the grounds and reasons
for the proposed debarment, and any terms attached to it. It must also provide
the person with its written debarment policy and procedure and afford the
person a reasonable opportunity to respond. The provider must consider any
response before making its decision. It must thereafter immediately notify the
person in writing of the decision, the person’s rights under Chapter 15 of the
FSR Act, and any formal requirements for proceedings before the Tribunal.
19. Section 14(5) requires a debarment in respect of a person who is no longer a
representative of the provider to be commenced within six months after that
person ceased to be a representative. A debarment decision by a provider
constitutes the exercise of a statutory power and administrative action. It is
subject to section 14 and the overarching requirements of the Promotion of
Administrative Justice Act 3 of 2000.
20. Guidance Notice 1 of 2019 (FAIS), issued by the Authority in terms of section
141 of the FSR Act, is directly applicable. Paragraph 3.4.2 records that a
debarment process may form part of employment-related disciplinary
proceedings and advises providers to combine their debarment and disciplinary
policies and procedures. If that is not done, a provider “cannot summarily debar
a person based on the outcome of a disciplinary hearing” without complying with
section 14(3). Paragraph 3.5.1 states that debarment should not be used to
satisfy contractual or other grievances. Paragraph 3.5.3 requires providers to
act without bias and recommends that an independent person evaluate the
grounds for debarment where the provider might reasonably be perceived as
biased.
grounds for debarment where the provider might reasonably be perceived as
biased.
21. In Associated Portfolio Solutions (Pty) Ltd and Another v Basson and Others
(554/2019) [2020] ZASCA 64; 2021 (1) SA 341 (SCA) para 31, the Supreme
Court of Appeal held that a separate enquiry is not invariably required where
the person has already had a proper opportunity to address the conduct relied
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upon, and that requiring one in those circumstances would elevate form over
substance. The premise is that the person knew that his or her fitness and
propriety were in issue and had an opportunity to address them. That reasoning
does not assist a provider where the person was never informed that debarment
was contemplated.
E. EVALUATION
22. There was no compliance with section 14(3) . No notice of an intention to debar
was given. The only notice was that of 9 April 2024, requiring the applicant to
attend a disciplinary hearing concerning two allegations of gross misconduct
under the respondent’s disciplinary code. A person reading it would understand
that her employment was at risk, but not that her ability to render financial
services anywhere in the industry was also at risk.
23. No grounds and reasons for debarment, as distinct from allegations of
misconduct, were furnished. The distinction is substantive, not formal. That an
employee failed to carry out an instruction or acted dishonestly in breach of her
employment contract is framed for an employment enquiry. It does not inform
her that the provider considers that she no longer meets the statutory honesty
and integrity requirement and intends to debar her on that basis. Nor was she
provided with a written debarment policy and procedure, and the record does
not establish that the respondent had one. She was given no opportunity to
address debarment because she was never told that it was contemplated. She
was heard on whether she had committed two disciplinary offences, no t on
whether she remained fit and proper to render financial services.
24. Nor does the record establish that a separate debarment decision was taken.
The disciplinary hearing and debarment occurred on the same day, while the
letter conveying the outcome of the hearing, issued six days later, made no
mention of debarment. The only reasonable inference is that debarment
mention of debarment. The only reasonable inference is that debarment
followed automatically upon the finding of guilt. This is precisely the course
against which paragraph 3.4.2 of the Guidance Notice cautions and is
irreconcilable with the duty imposed by section 14(2)(a). No notification under
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section 14(3)(c) was given. The applicant was not informed of the decision, her
rights under Chapter 15 of the FSR Act, or the formal requirements for
reconsideration. She consequently remained excluded from the industry for
more than two years without knowing that she had been debarred.
25. The debarment falls to be set aside on these grounds alone. As the procedural
defects are dispositive, it is unnecessary to determine the merits, and the
Tribunal does not do so. Three matters should nevertheless be recorded.
26. The first charge could not sustain a finding that the applicant lacked honesty
and integrity. It concerned an alleged failure to carry out an instruction. The
respondent’s documents describe the instruction as an exercise given to the
applicant. Verification of the member record depended upon the co-operation
of a third party over which she had no control. The scheme confirmed in writing
that afternoon that the volume of enquiries generated by the respondent
exceeded it queue capacity, and the applicant contemporaneously reported that
170 members remained unverified for that reason. Whatever failure this may
disclose, it was not dishonest. At most, it concerned performance, while
competence was not identified as a ground on the notification form.
27. The second charge is of a different order. Depending on the facts, t he
unauthorised transmission of medical scheme members’ personal information
to a private email account may support a conclusion that a person no longer
meets the honesty and integrity requirement. Whether the applicant’s
explanation—that she required the material to prepare for a disciplinary process
whose scope had not been explained to her—should be accepted depends on
the nature and extent of the information and whether it exceeded what she could
reasonably have required for that purpose. Twenty-four attachments totalling
approximately 32 MB and spanning three employers over three years required
approximately 32 MB and spanning three employers over three years required
careful assessment against that standard. No such assessment appears in the
record. There is no ruling, reasoned decision or separate finding on either
charges. The only identifiable decision-maker is the key individual, who also
authored the correspondence underlying the first charge, acted as charging
officer and signed the termination letter.
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28. There is a further, logically anterior difficulty. The power conferred by section
14(1) may be exercised only in respect of a representative of the provider or a
key individual of such representative. Section 14(1)(b) requires the reasons for
debarment to have occurred and become known to the provider while the
person was a representative. These are jurisdictional facts. Although the record
establishes the applicant’s position and duties, it does not establish that she
was a representative as defined in section 1(1). On the description of her duties,
the exclusion for clerical, technical, administrative or similar services rendered
in a subsidiary or subordinate capacity may apply. Her description as a
representative on the notification form is an assertion, not proof. Had the matter
been defended, the respondent would have been required to establish those
jurisdictional facts.
F. REASONS NOT TO REMIT
29. A procedurally defective decision is ordinarily set aside and remitted so that a
lawful process may be followed. Remittal is inappropriate here. The respondent
does not seek it, consents to the removal of the debarment and expressly
declines to defend the merits. Nor was any debarment process commenced in
accordance with section 14(3). The disciplinary proceedings were not combined
with a debarment process, and no notice of intention to debar was given. The
purported decision of 12 April 2024, taken without any preceding debarment
process, cannot itself constitute commencement of the process that the Act
requires to precede the decision. Even assuming that the applicant was a
representative, any such status ended, at the latest, when her employment
terminated on 12 April 2024. The six-month period prescribed by section 14(5)
expired 12 October 2024. The respondent’s own letter acknowledges the
requirement and records that more than 24 months have passed. Remittal
would therefore serve no lawful purpose. The debarment is accordingly set
aside without remittal.
aside without remittal.
G. ORDER
30. The following order is made:
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30.1 The application for reconsideration succeeds.
30.2 The decision of the respondent, taken on 12 April 2024, to debar the
applicant in terms of section 14( 1) of the Financial Advisory and
Intermediary Services Act 37 of 2002 is set aside.
SIGNED ON BEHALF OF THE TRIBUNAL ON THIS 19TH DAY OF AUGUST 2026.
ADV SM MARITZ
For self and on behalf of L TC HARMS (CHAIR)