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Financial Advisory and Intermediary Services Act, 2002 (Act No. 37 of 2002)

Chapter VI : Enforcement

Part 2 : Other enforcement measures

34. Undesirable practices

 

 

1) Subject to subsections (2) and (3), the registrar may by notice in the Gazette declare a particular business practice to be undesirable for all or a category of authorised services providers, or any such provider.

[Subsection 1 amended by section 196(a) of Act No. 45 of 2013]

 

2) The following principles must guide the registrar in considering whether or not a declaration contemplated in subsection (1) should be made –
a) That the practice concerned, directly or indirectly, has or is likely to have the effect of –
i) harming the relations between authorised financial services providers or any category of such providers, or any such provider, and clients or the general public;
ii) unreasonably prejudicing any client;
iii) deceiving any client; or
iv) unfairly affecting any client; and
b) that if the practice is allowed to continue, one or more objects of this Act will, or is likely to, be defeated.

 

3) the registrar may not make such a declaration unless the registrar has by notice in the Gazette published an intention to make the declaration, giving reasons therefor, and invited interested persons to make written representations thereanent so as to reach the registrar within 21 days after the date of publication of that notice.

 

4) An authorised financial services provider or representative may not, on or after the date of the publication of a notice referred to in subsection (1), carry on the business practice concerned.

[Subsection 4 amended by section 196(b) of Act No. 45 of 2013]

 

5) The registrar may direct an authorised financial services provider who, on or after the date of the publication of a notice referred to in subsection (1), carries on the business practice concerned in contravention of that notice, to rectify to the satisfaction of the registrar anything which was caused by or arose out of the carrying on of the business practice concerned: Provided that the registrar may not make an order contemplated in section 6D(2)(b) of the Financial Institutions (Protection of Funds) Act, 2001 (Act No. 28 of 2001).

 

6) An authorised financial services provider concerned who is under subsection (5) directed to rectify anything, must do so within 60 days after such direction is issued.