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NEAL RECUSES HIMSELF FROM FARMERS BANK APPEAL

07/11/2020 23:56:00 BY MFANUKHONA NKAMBULE

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mfanukhona@times.co.sz

MBABANE – Minister of Finance Neal Rijkenberg has recused himself from hearing the Farmers Bank’s appeal against the cancellation of its banking licence.

Its banking licence was cancelled by the Central Bank of Eswatini (CBE).

In an interview, the minister said he recused himself from adjudicating on the appeal because he was exposed to the case’s merits and de-merits before Farmers Bank sought his intervention in terms of the Financial Institutions Act of 2005.

King IV Report on Corporate Governance, which is a reference point for Eswatini Government, states that Board members (this includes all corporate executives and politicians) are under a legal duty to prevent conflicts of interest with the company and are obliged to make full disclosure of any areas and/or potential areas of conflict prior to any consideration or discussion by the Board of such items.

progress

They are required to recuse themselves from any Board meeting while such discussions are in progress and are precluded from taking part in any discussions and/or decisions on these matters.

Rijkenberg told the Times SUNDAY that he would delegate a Cabinet colleague to adjudicate on the appeal. He said he could not hear the appeal because he had previously been consulted by both parties over the same matter. He said both parties consulted him in his official capacity as the minister of finance.

“In the circumstances I have deemed it appropriate to delegate my function of hearing the matter on appeal to a colleague in Cabinet,” said Minister Rijkenberg.

He said he could not at this point comment on how his colleague intended or proposed to deal with the appeal.

Setsabile Dlamini, the Communications Officer in the Ministry of Finance, said Rijkenberg delegated Manqoba Khumalo, the Minister of Commerce, Industry and Trade, to hear the case on his behalf.

In an interview, Khumalo confirmed that Cabinet asked him to work on the matter after Rijkenberg had indicated that he might not tackle the issue with an open mind.

formalised

He said his adjudication was formalised by the minister of finance. In the absence of regulations on how the appeal should be made in terms of the Financial Institutions Act, the minister said he designed a process, which was explained to both parties.

He said he consulted extensively to ensure he was not in breach of the law. The commerce minister pointed out that he set up a team of highly skilled advisors.

He said the advisors were appointed in their personal capacity, and at no pay. He said they would not take a decision but make recommendations on what the minister should consider when pronouncing himself on the matter.

The three highly-skilled and successful executives who shall advice the minister on the appeal are –

Sthofeni Ginindza, an investment banker, economist and partner at African Alliance, who served in various boards, and currently chairs the Board of directors for Eswatini Electricity Company (EEC), Royal Science and Technology Park Board, among others.

Mangaliso Magagula, a seasoned commercial attorney that chairs the country’s committee dealing with money laundering issues.

Stephen Simelane, who once headed an organisation that dealt with banking licences. He is experienced in compliance issues.

Khumalo said the diversity of skills at his disposal would help him take an informed decision.

He said the first step was to set up the team, which he introduced to both parties, scrutinise documentation that spelt out grounds for the appeal. The minister of commerce, industry and trade mentioned that the team had read the documents, and had also met Farmers Bank to hear its side of the story.

He disclosed that the team would meet Central Bank of Eswatini this week to get to know the reasons for revoking the banking licence. He said the decision would then be taken.

“The law allows the minister of finance to take a decision but we felt it wouldn’t make sense to sit alone and adjudicate on the matter,” said Khumalo.

This newspaper understands that Farmers Bank (Pty) Ltd filed an appeal with Rijkenberg on the basis of Section 64 (1) of the Financial Institutions Act of 2005.

Reads Section 64 (1) of the Act: “Any decisions taken by the bank under this Act including any refusal or revocation of a licence, shall be subject to appeal to the minister.”

appeals

Subsection 2 states that the appeal shall be noted in the manner and within the time prescribed by regulation in terms of subsection 62. The minister can prescribe the manner in which appeals can be made in terms of the abovementioned legal provision.

On October 1, 2020, the Central Bank of Eswatini revoked the commercial banking licence issued to Farmers Bank (Pty) Ltd with immediate effect.

Central Bank said it based its decision on Section 16 of the Financial Institutions Act of 2005.

Section 16 provides that it (Central Bank) may revoke a licence of any financial institution if the holder fails to commence operations within a period of one year after the grant of the licence.

Central Bank can also revoke the licence if the holder of the licence exceeds the terms of its licence or fails to comply with any conditions imposed under Section 6 or 17 or with measures required by the bank (Central Bank) in terms of Section 42.

It is stated in Section 42 that Central Bank of Eswatini may, if, in its opinion, an examination or other information about the institution shows that the financial institution concerned is conducting its business in an unlawful or unsound manner or that it is otherwise in an unsound condition—

(a) Require such institution to take such measures as the Bank may consider necessary to rectify the situation;

(b) Appoint a person who in its opinion has had proper training and experience to advise the financial institution on measures to be taken to rectify its situation and shall fix his remuneration which shall be paid by the financial institution.

revoke

Meanwhile, Section 16, which is read with other sections such as 42, further states that the bank may revoke the licence of any financial institution if the holder ceases to carry on the business for which it was licensed.

In addition, the licence can be revoked if this financial institution is in breach of any other provisions of the Act. It is provided in law that Central Bank would consult with the minister of finance (Neal Rijkenberg in this case) before a licence could be revoked.

According to the law, Farmers Bank should have been given a notice of the Central Bank’s intention to revoke the licence as stated in Section 16 (2). The notice is expected to give the institution (Farmers Bank in this case) reasonable opportunity to show cause why such licence should not be revoked.

Central Bank is not allowed in terms of the law to revoke the licence earlier than 28 days after the notice of intention has been served to the institution.

The Central Bank may obtain a temporary injunction upon application to the court for the suspension of any part or all of the business being conducted by such institution after the notice of intention has been served upon it.

It is provided in Section 16 (4) that the bank shall as soon as possible publish a notice of revocation in the gazette and in a newspaper of general circulation in Eswatini when it has revoked the licence. The notice of licence revocation must be posted in a conspicuous place of business of the financial institution.

CBE posted the notice at the entrance to Farmers Bank in Manzini. The notice informs clients and potential clients that the commercial banking licence for the financial institution has been revoked.

ascertained

It could not be ascertained if there were some people who had committed their money to Farmers Bank, as the officer who once or who held the position of acting CEO Dr Thula Dlamini could not be reached for comment.

During the budget speech in February 2020, Minister of Finance Neal Rijkenberg revealed that the country has, for the first time in 30 years, issued a banking licence, hoping that this move would broaden access to finance.

The issuance of the licence to Farmers Bank increased the number of financial institutions (banks) to four – Standard Bank, First National Bank, EswatiniBank and Nedbank.

The Swaziland Building Society operates like a bank as it is a lender and deposits accepter. It does not have a commercial bank licence.

In May 2020, the media quoted Dr Dlamini to have said: “Our mandate is to help the country in strengthening food and water security. To me I consider this as continuation to what I was doing at ESEPARC, except that now we are in the frontline of development. The aim is to ensure that the country’s farmers have access to finance to ensure that they meaningfully contribute towards the economic development of the country.”

He is a former CEO of ESEPARC (Eswatini Economic Policy Analysis and Research Centre).

Last year, Judge Nkosinathi Maseko issued a judgment that interdicted and restrained African Echo (Pty) Ltd trading as Times SUNDAY from publishing articles and information contained in a confidential report on Farmers Bank’s licence application.

“The respondents are hereby interdicted and restrained from publishing articles and information contained in a confidential report on Farmers Bank licence application. The respondents are ordered to pay costs of suit on the ordinary scale,” ruled Judge Maseko.

On January 14, 2019, the Times of Eswatini reported that Chubb Electronic Security took Farmers Bank to court in which it demanded payment of a sum of E459 950.79.

According to Chubb Electronic Security Swaziland, the aforementioned amount was in respect of services it allegedly rendered to the bank.

established

Farmers Bank (PTY) Limited is a financial institution duly established in terms of the Financial Institutions Act of 2005 of the Kingdom of Eswatini with its place of business at Bulembu in the Hhohho Region.

Chubb Electronic Security Swaziland is a private limited liability company, carrying business in Mbabane.

In the simple summons issued by Chubb Limited’s lawyers, the defendant (Farmers Bank (PTY) Limited) had failed, refused and/or neglected to make payment.

It wanted the court to direct the bank to pay the sum E459 950.79 at the rate of nine per cent per annum.

Other media platforms quoted one of the directors of the Farmers Bank announcing to the nation that this financial institution would change the country’s banking sector landscape when it opened its for doors for business. He is alleged to have said the bank’s investors were from Canada, with the institution’s seed capital traceable.

He had, however, pointed out that opening a bank was such a gripping and tedious exercise, which required patience and dedication.