On 9 May 2023, the Financial Services Tribunal issued a landmark ruling in favor of the Financial Sector Conduct Authority (FSCA), confirming its powers to remove board officers from funds and impose personal penalties on these representatives. This decision followed a long and complex investigation into the conduct of the Principal Officer and trustees of the Private Security Sector Provident Fund (PSSPF) initiated by the FSCA.

The FSCA first announced its regulatory action against the PSSPF’s (now former) Principal Officer and current and former trustees on 5 August 2022. Several individuals applied to the Tribunal for reconsideration of the FSCA’s decisions, leading to the recent ruling.

The Tribunal’s judgement affirms that a Principal Officer holds a fiduciary responsibility towards the stakeholders in the fund. It also agrees with the FSCA’s view that regulatory action can be taken irrespective of the office the individual holds on other funds.

The implications of the ruling are significant for the retirement fund industry, emphasizing the importance of good governance and prudent conduct by trustees and Principal Officers of retirement funds. The FSCA expects both trustees and Principal Officers to fulfil their fiduciary duties, and to act ethically, lawfully, diligently, and properly.

While the FSCA acknowledges that the complexity of overseeing retirement funds could lead to genuine mistakes by board members, it made clear that deliberate or grossly reckless conduct, self-enrichment, and abuses of position with ulterior motives or malicious intent would be sanctioned.

The FSCA’s decision to remove the Principal Officer and trustees from the PSSPF and impose penalties on them in their personal capacity sets a strong precedent. This decision will have wide-ranging implications for trustees and public officers, reinforcing the importance of fiduciary responsibilities in the management of retirement funds.

In related news, the statutory management of the PSSPF was terminated as of 30 April 2023, indicating that the statutory manager has successfully discharged his duties in accordance with his appointment. An Enforceable Undertaking has also been entered into with the PSSPF, which will lead to more independent trustees on its board.

The FSCA’s regulatory action, backed by the Tribunal’s ruling, reinforces the authority’s commitment to protecting the interests of stakeholders in the retirement fund industry. It serves as a stern reminder to all trustees and Principal Officers of their obligations and the potential consequences of failing to adhere to them.