The Non-Banking Financial Institutions Regulatory Authority (NBFIRA) has been vindicated for vetting out and disqualifying a candidate for the position of Chief Executive Officer (CEO) proposed by Old Mutual Botswana Life Insurance.
The Court of Appeal (CoA) recently approved that the non-banking authority was right in refusing the Old Mutual to appoint one Leonard Siwawa as its CEO for dishonest behaviour. According to court documents in 2016, Old Mutual proposed to NBFIRA to approve Siwawa for the CEO position of which the authority refused following their vetting of the proposed appointment.
Siwawa, who is a highly qualified actuarial scientist, was reportedly vetted out and disqualified for not disclosing his past including a disciplinary hearing with one particular company, Stanlib, an asset management company, and his previous failure to obtain clearance to be a controller.
Following his vetting, Siwawa took the matter to the High Court appealing the decision of NBFIRA where he lost in 2017 and then approached the CoA.
Now, Siwawa will have to bear the costs of his appeal as Justice Ian Kirby found out that the process adopted by NBFIRA disqualifying him for appointment as CEO was a fair and rational one, with no suggestion of bias, not making him a candidate for review. Kirby explained that it was for the benefit and the protection of the public since NBFIRA was a public interest regulator with the principal duty of shielding members of the public from dangers of having their assets or wealth managed by persons of doubtful pedigree.
“The appellant failed to disclose either his disciplinary record with Stanlib, or failure to get clearance as controller, but instead answered in the negative a question as to whether he had in the past been refused a professional licence by the government regulatory authority. That was a half-truth and at worst a dishonest attempt to air brush his past. He also dishonestly claimed to still be employed by VPB,” he said.
The judge further pointed out that the candidate according to NBFIRA’s decision was already a disqualified person in the records of NBFIRA meaning that he had been refused clearance in 2013 as a controller for reasons relating to his integrity. Also that as he did not query, challenge nor appeal that decision, it was far-fetched for him to plead ignorance of the obvious fact that this was due to his disciplinary record at Stanlib.
“More so the appellant was not honest in details provided by him both in his CV and in his supporting affidavit to the Old Mutual application. He has a duty to disclose his disciplinary record. He is only disqualified as a controller in a prudentially regulated non-banking financial institution, but he remains able to practice his profession as an actuarial scientist either on his own account where he may be the CEO or as an employee of a non-regulated entity,” Kirby said.
Further the judge noted that before deciding upon his unsuitability, NBFIRA had conducted a thorough vetting exercise, as disclosed in its letter to VPB and also validated by means of an independent audit, the financial transactions which underpinned him to his disciplinary offences at Stanlib. Meanwhile, according to the facts of the case, Stanlib employed Siwawa during the years of 2005 and 2012 as its managing director.
In June 2012 he was called for disciplinary enquiry on seven charges of serious misconduct including the payment of unauthorised and unusual commissions to a company headed by his relative, duplicating commission payments to two brokers on the same transaction. Further, he was charged with causing financial loss to the company of about P4m through lack of adherence to internal controls and payment of a monthly sum to an influential trade unionist as a sweetener to ensure his support in securing the management of rehabilitation funds set aside by BCL.
On August 15, 2012 he resigned as managing director after he was found guilty over a full disciplinary hearing conducted over three days during which he contested the charges. Then following his other stint with different companies in South Africa and here, on January 8, 2016 Old Mutual made application to NBFIRA for vetting and approval of Siwawa as its proposed CEO in Botswana.
On March 2, 2016 NBFIRA responded to Old Mutual’s application informing the company that the vetting process had been completed and that the approval for the candidate’s employment as CEO was refused.