Africa-Press – Botswana. The Non-Bank Financial Regulatory Authority (NBFIRA) has stated that it is taking necessary regulatory action to ensure that the lapses that could have affected pensioners such as Tsholofelo Mmopele do not occur in the future. Mmopele brought the regulator before its Tribunal, alleging that prior to her retirement, she was led by the Fund Administrator (then Alexander Forbes Financial Services Botswana) to believe that she would receive a higher retirement value (as she understood it, an amount that included both her own and the employer’s contributions) upon retiring than the value she actually received upon retirement. In its ruling, the NBFIRA Tribunal expressed concerns about the said lapses of misstatements and miscalculations relating to this matter.
When asked if NBFIRA takes responsibility for the lapses as ventilated in the said ruling and what measures it has put in place to ensure that such issues do not arise in the future, NBFIRA said, “The Regulatory Authority is satisfied with the measures put in place by the concerned entity, and the controls implemented are deemed adequate to prevent the recurrence of the same issue.” The Regulatory Authority added that its mandate includes consumer protection, with an important part involving creating an environment that facilitates the empowerment of consumers regarding their rights and responsibilities, a responsibility taken seriously by NBFIRA.
In its ruling, the Tribunal stated that it is not an excuse for the Fund and the Fund Administrator to simply claim that the miscalculations were made honestly; it contradicts section 4(1)(b) of the Non-Bank Financial Institutions Regulatory Authority Act, 2016, which requires the Respondent to regulate and supervise non-bank financial institutions to foster the highest standards of conduct and ensure fairness, efficiency, and orderliness of the non-bank financial sector. The Tribunal ordered NBFIRA to relook into this matter and take necessary steps on the Fund and the Fund Administrator to ensure that such lapses do not occur in the future or are not repeated.
Regarding the manner in which the Respondent’s determination/decision was fashioned in this matter, according to the Tribunal’s ruling, “The most effective way of holding the Respondent (NBFIRA) accountable is through its determinations/decisions.” The Tribunal emphasized that in its decisions, the Respondent is obliged to furnish adequate reasons to explain how and why it arrived at certain decisions. It is crucial that such decisions be authored with simplicity, clarity, and adequate analysis so that they may withstand scrutiny. The Tribunal also stressed that the furnishing of reasons serves another important objective of demonstrating to interested parties that the Respondent has applied its mind to the issues put before it and therefore the decision is not arbitrary.
It is important to note that the only place for the Respondent to explain its findings is in its decision, not before the Tribunal during appeal hearings. Therefore, the Respondent is urged to ensure that its decisions are well-reasoned, logical, clear, persuasive, and supported by evidence and the law.
Members of the Tribunal are Meshack BAOLEKI (Chairperson), Dineo Makati-Mpho (Deputy), and F. Motlhanka (member).
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