Stilte oor Herman Pretorius verbaas

Author: Sê Maar Net – Tygerberg

Publications: Die Burger – Briewe Kolom

Date Published : 25 Julie 2014

Almal skryf briewe en SMS’e aan Die Burger oor “Die Stem” wat “daardie man wat praat in plaas van sing” op ‘n fees gesing het. Dit gaan my verstand te bowe dat niemand tot dusver geskryf het oor die “skatryk” Herman Pretorius van Welgemoed nie. Dis nou hy wat soveel mense uit hul spaargeld geswendel en toe homself en sy vennoot doodgeskiet het.
Nou sien ek in die koerant sy huis word op 3 Augustus op ‘n veiling verkoop. Ek moes twee keer lees verlede Dinsdag, 15 Julie, net om seker te maak dat ek reg lees dat die vrou R13 miljoen se verbeterings aan die huis aangebring het. Dit skrei ten hemel!
Het niemand wat hier uit hul geld verkul is, iets te sê nie – hulle of hul familie of vriende hier in Bellville?
Ek vra maar net, want eintlik ken ek nie iemand wat só verkul is nie, want ons mense is maar skugter met ons ou geldjies – nie so geldgierig om gou ryk te word nie.

Sê Maar Net
Tygerberg

Ponzi king’s estate bringing in millions – but not enough

Sunday Times
20 July 2014
Nashira Davids

http://www.timeslive.co.za/sundaytimes/

About R20-million could be added next month to the kitty being accumulated to compensate 3000 investors who lost a total of R2.2-billion in Herman Pretorius’s Ponzi scheme.
The Cape Town mansion he shared with his wife, Susan, will be auctioned on August 15. With decor reportedly worth R13-million, it is expected to sell about the same as his Hermanus beach villa, which brought in R17.8-million last year.
zpretorius, from the tiny Western Cape village of Piketberg, rose to become a high-flying businessman with a fleet of luxury cars, at least two mansions and millions in his bank account.
But the good life came to a sudden end when he shot dead his business partner, Julian Williams, reportedly after an argument over money, and then turned the gun on himself.
Since then, the full extent of his scam has come to light and the trustees of the fund he ran have been trying to find his assets.
It is not an easy job, because books and other records were not properly kept and no financial statements were compiled, making it difficult to reconstruct business transactions.
What the trustees did uncover was a life of opulence paid for with money invested in his Relative Value Arbitrage Fund Trust.
Much like her husband’s investors, Susan “lost everything”, her lawyer, Etienne Naude, said.
Susan, who is the registered owner of the Welgemoed house, was sequestrated in October last year.
Naude said his client “is saddened about having to lose that house as well”.
According to the auctioneers ClareMart, the cost of the land and the construction of the home totalled about R20-million.
“There have been countless queries from potential buyers,” said a spokesman for the group.
The house has a marble entrance hall, marble counter tops and wraparound marble patio.
It has its own theatre, gymnasium and sauna, and boasts an excellent view and landscaped gardens.
Pretorius’s estate was sequestrated in the High Court in Cape Town last year.
Judge Owen Rodgers found that Pretorius had “attractedlarge sums from gullible members of the public (many of them from country towns in the Western Cape) by promising above average returns of 14% to 25% per annum – the time-honoured method originally made famous in the 1920s by Mr Charles Ponzi”.
Rodgers noted that Pretorius had no income apart from that derived from his investment scheme and that his wife had not worked since 1991.
But they had 10 properties, reportedly worth R116.9-million, and six cars, including an Aston Martin DBS and a Range Rover.
Rodgers remarked that Pretorius’s wife had said that she and her adult sons “know very little about the investment business and cannot be held accountable if it should transpire that Mr Pretorius acted unlawfully”. Other properties sold include: A luxury three-bedroom apartment in Claremont that fetched R3.3-million; A luxury beach villa in Hermanus – featuried on the cover of House and Leisure magazine in 2012 – scooped up for R17.85-million; Vacant land in Hermanus, auctioned for R 863 840; and “A-Grade” office space at the TygerWaterfront with 51 parking bays, sold for R14.9-million.
They also owned a property in Oranjezicht, vacant land in Wesfleur and a holiday home in Malgas were also on the list of sales.
Piet Serdyn, 73, of Moorreesburg, said he lost all his retirement savings when he invested with Pretorius shortly before his suicide.
He has little hope of getting any of his money back.
All we, as investors, can do is sit and wait. There is nothing we can do about it.

Hedge fund scam: more rulings

Author: Angelique Arde

Publications: iOL

Date Published: 20 July 2014

Michal Calitz, the financial adviser who was paid R8.4 million in share profits from the Relative Value Arbitrage Fund (RVAF), which was, in fact, a scam, has been ordered to compensate two more clients who lost money after he advised them to invest in it.

The RVAF collapsed after Herman Pretorius, the mastermind of the scheme, shot his business partner and committed suicide in July 2012. The scheme collected an estimated R2.2 billion from about 3 000 investors.

In the two latest rulings by the Ombud for Financial Services Providers, Calitz has been ordered to repay Dr Johannes Hartshorne R460 000 and Martha Jooste R165 000.

This brings to four the number of rulings by ombud Noluntu Bam against Calitz (Personal Finance reported recently on the previous two rulings, and the reports can be viewed at http://www.persfin.co.za).

Calitz is the owner of Impact Financial Consultants, an authorised financial services provider with offices in Bellville, Western Cape. Calitz is a member of the Financial Planning Institute (FPI) and an accredited Certified Financial Planner.

Bam’s latest rulings show that in the weeks leading up to Pretorius’s death, Calitz advised both Hartshorne and Jooste to disinvest from the RVAF – “but by that stage it was already too late”.

In both cases, Calitz had been an adviser to the complainants for many years.

Hartshorne contends that Calitz never told him that neither the RVAF nor Pretorius were registered with the Financial Services Board (FSB) and that there could be potential risks.

“On the contrary, Calitz told [Hartshorne’s] wife that Pretorius was a person of integrity and that the RVAF was performing well.”

Hartshorne also told the ombud that Calitz did not carry out a risk assessment on him.

Jooste complained that Calitz assured her that there was no risk of investing in the RVAF and that he had invested some of his own money in the fund, which “was managed by professional people with industry experience”.

Jooste’s R165 000 was her entire investible capital and had been sitting in an Absa money market investment account before Calitz persuaded her that the RVAF was her best option.

In response to both complaints, Calitz claims to have explained to his clients the workings of a hedge fund and that these instruments are not regulated but that investment manager Abante Capital through which the investments were channelled was registered with the FSB.

But in both determinations, the ombud says the key issues, as with previous rulings against Calitz, pertain to the rendering of advice to invest in the RVAF – principally, Calitz’s “failure to understand the entity and the risks to which he was exposing his clients”.

She reiterates that no adviser would have recommended the RVAF as a suitable component in “any” investment portfolio had they exercised the required due skill, care and diligence.

The FPI responds

Jacqui Grovè, the legal and compliance services manager for the FPI, says that when the news broke about the RVAF, the FPI launched an enquiry to find out whether any FPI members might have been involved in the scheme.

By the end of last year the FPI had evidence of the possible involvement of two members, she says.

“Our investigation was made difficult by the fact that, despite our best efforts, we could not find sufficient verifiable evidence with respect to these members. We then took a decision to await the results of the ombud’s investigation.”

The release of the financial advice ombud’s determinations has provided the FPI with [the] information [needed] to proceed with disciplinary action, Grovè says.

“We are now proceeding as speedily as possible, having regard for due process, with finalising hearings. We shall publish the results of these hearings.”

Although the ombud’s rulings carry the weight of a high court ruling, Grovè says an FPI member is “deemed innocent until found guilty by a competent FPI disciplinary panel of his or her peers”.

She says the institute’s purpose is to benefit the public by ensuring that its members can be trusted always to put their clients interests’ first.

Pretorius-weduwee se spoghuis gou opgeveil

Author: Marelize Barnard

Publications: Die Burger

Date Published : 15 Julie 2014

KAAPSTAD. – Susan-Ann Pretorius, weduwee van die swendelaar Herman Pretorius, se ontwerpershuis met sewe slaapkamers, ’n wynkelder, gimnasium, sauna, private bioskoop en “marmer net waar ’n mens kyk” gaan in Augustus opgeveil word.

Dié miljoenêrshuis in Welgemoed en sy “internasionaal ontwerpte inhoud” is met Pretorius se swendelaarsinkomste gebou en ingerig. Beleggers het R2,2 miljard by Pretorius belê.

Nadat Susan-Ann in die Wes-Kaapse hooggeregshof gesekwestreer is, het die trustees van Pretorius se Relative Value Arbi­trage Fund (RVAF) en Seca Trust die afslaers ClareMart gekry om die huis op te veil.

Altesaam 11 bedrae wat aan Bos & Punt-bouers vir bouwerk aan die eiendom betaal is, wissel van R34 200 tot R1,6 miljoen elk. Altesaam R13,3 miljoen is binne twee jaar aan bouers en binneversierders betaal.

Susan-Ann was te alle tye die geregistreerde eienaar van die ­eiendom in Van de Graaffstraat in Welgemoed.

Die weelde word gewys in foto’s waarmee die veiling geadverteer word. Die veiling is op 15 Augustus op die perseel. Die eiendom en inhoud word as ’n eenheid opgeveil.

Jonathan Smiedt, uitvoerende hoof van ClareMart, het gister gesê die huis is eksklusief ontwerp en is “dié huis om in te woon” in die noordelike voorstede.

“Dit is nie jou alledaagse huis nie. Elke hoek en muur is met ’n spesifieke doel ontwerp en afgewerk.

“Die mure is afgewerk deur Marmoran, ’n onderneming wat bekend is vir sy dekoratiewe muurafwerking. Die geoutomatiseerde stelsel sluit in ’n verkoelde wynkelder, en daar is pragtige groot marmerteëls.”

Wanneer Smiedt die huis beskryf, gebruik hy die woorde “duur . . . duur . . . duur” in elke sin.

Die private bioskoop het ’n reuseskerm en sitplek vir sowat 50 mense. Langsaan is die geoutomatiseerde wynkelder.

Dan is daar nog die marmerstoep reg rondom die huis, die ontwerperstuin en die uitsig.

’n Lys van altesaam 115 aankope vir die binneversiering van die huis is vantevore as deel van die aansoek om Susan-Ann se sekwestrasie by die hooggeregshof ingedien.

Dit sluit in ’n sitkamerbank van R59 353, nóg een van R33 375 en ’n koffietafel van R17 800 vir een van die sitkamers.

Nog ’n sitkamerbank vir die Pretorius-gesin se gesinskamer het R48 600 gekos. Twee tafels, een van R35 283 (vir ’n eetkamer) en ’n ander van R45 157 (vir ’n braaikamer), is ook op die lys van aankope.

Met Susan-Ann se sekwestrasie is gelas dat sy al die meubels in die huis moes agterlaat en slegs basiese huisware, soos haar bed en ’n yskas, verwyder.

Die eiendom en inhoud kan op 3 en 10 Augustus deur voornemende kopers besigtig word.

Hedge fund scam: second ruling

Author: Angelique Arde          

Publications: iOL

Date Published: 13 Jul 2014

The Ombud for Financial Services Providers has handed down another ruling against financial planner Michal Calitz of Impact Financial Consultants in Bellville.

Calitz earned R8.4 million in so-called share profits from the Relative Value Arbitrage Fund (RVAF), which purported to be a hedge fund but was, in fact, a scam.

The RVAF collapsed after its architect, Herman Pretorius, shot himself in July 2012. The fund is in liquidation, and its trustees have indicated that some, if not all, investor funds have been lost.

Both of Bam’s rulings against Calitz are the result of complaints by clients who invested in the RVAF on his advice.

The latest ruling states that, acting on Calitz’s advice, Robert Whitfield-Jones invested two amounts in the RVAF: R350 000 in March 2009 and R250 000 in February 2012. The money for both investments came from Whitfield-Jones’s unit trust fund investments. Calitz told his client that he could earn a better return if he invested in the RVAF.

Whitfield-Jones says he knew nothing about the risks associated with investing in a hedge fund and trusted Calitz to render the best advice, particularly because they had a relationship that went back several decades.

Holding Calitz accountable for his loss of R600 000, Whitfield-Jones turned to Bam for compensation.

In her determination, Bam refers to her previous ruling against Calitz in which she found that, “on the objective evidence, he could not have conducted even the most basic due diligences on the RVAF”.

The issues pertain to Calitz’s failure to understand the RVAF and the risks to which he exposed his clients when he advised them to invest in it, she says.

“Quite simply, no adviser would have recommended this product as a suitable component of any investment portfolio had they exercised the required due skill, care and diligence,” Bam says.

Whitfield-Jones, as a client of a registered financial adviser, relied on Calitz’s advice when he made the investment. When rendering financial services to clients, the financial services provider is required to act in accordance with the Financial Advisory and Intermediary Services Act and its code of conduct. Calitz failed in this regard, Bam says.

She ordered him and his company, jointly and severally, to pay Whitfield-Jones R600 000.

Calitz holds a postgraduate diploma in financial planning and has the Certified Financial Planner accreditation. He is a member of the Financial Planning Institute (FPI), which has its own code of conduct.

The FPI has yet to discipline any of its members who advised clients to invest in the RVAF. In October 2013, the FPI said it was expecting to hold disciplinary hearings in December. The outcomes of the disciplinary hearings would be published once the appeal period had expired. But to date no outcomes have been published. Personal Finance has had no response to questions put to the FPI’s legal and compliance services manager.

Pretorius: Makelaar moet geld teruggee

Author: Marelize Barnard

Publications: Die Burger

Date Published : 10 Mei 2014

KAAPSTAD. – ’n Makelaar wat beleggers na wyle Herman Pretorius se beleggingskema gelok het, moet R500 000 plus rente terugbetaal aan een van dié beleggers.

Die ombudsman vir finansiële adviseurs en tussengangers (Fais), Noluntu Bam, het ’n bevel gemaak dat die makelaar van Bellville, Michal Calitz, en sy beslote korporasie, Impact Finansiële Konsultante, die R500 000 en rente van 15,5% per jaar moet terugbetaal.

Die klaer in die saak, Craig Inch, het jare lank pensioengeld bymekaargemaak en dit op Calitz se aanbeveling in Pretorius se Rela­tive Value Arbitrage Fund (RVAF) belê.

Inch se geld was vantevore in die geldmark belê en hy het dit nooit oorweeg om dit in ’n verskansingsfonds te belê nie.

Volgens Inch se weergawe in sy aansoek by Fais het Calitz hom verseker dat dit ’n stabiele fonds is en Inch se geld is op 30 Maart 2010 by RVAF inbetaal.

Hy wou op 26 Julie 2012 sy geld onttrek, maar het ’n dag later uitgevind dat Pretorius dood is.

Preto­rius het op 26 Julie 2010 selfmoord gepleeg nadat hy ’n oudkollega, Julian Williams, doodgeskiet het.

In die Fais-ombudsman se uitspraak word genoem dat Calitz aangevoer het dat hy nie verantwoordelikheid kan aanvaar vir wat blyk die “doelbewuste poging van een persoon was om beleggers te bedrieg nie”.

Verder word genoem dit is kommerwekkend dat Inch se geld reeds op 30 Maart 2010 in die RVAF Trust se bankrekening inbetaal is, terwyl ’n ooreenkoms daaroor eers op 7 April onderteken is. Die belegging is gemaak “voor enige dokumente onderteken is”.

Bam het verder gesê daar is geen bewyse deur Calitz gebied dat die ware risiko aan Inch verduidelik is nie.

“Nóg Pretorius nóg die RVAF was gelisensieer . . . Calitz moes geweet het dat die Fais-wetgewing nie nagekom is nie.”

Verder is daar geen behoorlike boekhouding of rekords deur Pretorius gehou nie. Dit is ’n belangrike kwessie wat Calitz nie kan verduidelik om te bewys dat hy ’n behoorlike ondersoek na die RVAF se sake gedoen het nie.

“Dit is duidelik dat Calitz blindelings aanvaar het wat aan hom gesê is oor die RVAF, want hy het beslis nooit die moeite gedoen om navraag te doen oor die finansiële state wat nooit bestaan het nie,” lui Bam se uitspraak.

Are industry regulators preserving the integrity of the industry?

Author: Jonathan Faurie

Publications: FANews

Date Published: 9 Jul 2014

Are we as an industry being protected by the regulator? We often receive determinations sent to us by the office of the Financial Advisory and Intermediary Services Ombudsman (FAIS Ombud), and there is a common thread in most of the determinations. There are certain advisers in the industry who seemingly have a blatant disregard for the Financial Advisory and Intermediary Services (FAIS) Act and they think that they can get away with defrauding clients.

Predictably they do not always get away, as the Ombud have an open door policy for the public to raise any concerns that they have regarding an adviser. The Ombud then investigates the claim and if it is found that the adviser is guilty a fine will be imposed. But is this enough? This is the question we are left with to reflect on after reading a recent determination handed down by the FAIS Ombud.

Negotiating a normal client interaction

Dr Craig Inch (complainant), a dental practitioner, was seeking an investment plan that would best suit his needs and help grow his savings. After recommendation by a college, the complainant arranged a meeting with Michal Calitz (respondent) to discuss the possible investments which would be best for the complainant.

During the original discussion, a number of unit trusts were discussed and it was recommended that the complainant look into these unit trusts. A follow-up meeting was arranged and the respondent made mention of a hedge fund that the complainant’s college, who was a client of the respondent, had spoken of. The fund was doing well and the complainant asked the respondent if he knew of any other funds which operated in a similar manner. The respondent recommended the Relative Value Arbitrage Fund (RVAF).

The complainant was hesitant to invest in a high risk fund as he was thinking of investing his whole life savings into this fund and could not afford to lose it. In the complainants version to the Ombud, he said that he made this very clear to the respondent. He asked the respondent to explain the RVAF in more detail to which the respondent explained that the fund took long positions in stocks which were expected to increase in value and short positions on stocks which were expected to decrease in value.

The complainant then asked about the performance of the fund to which the respondent assured him that the fund’s performance was in the region of twenty percent per annum.

The plot thickens

The respondent apparently told the complainant that a hedge fund was not regulated in the same way as a unit trust portfolio. The respondent then assured the complainant that the RVAF fund did have all of the correct paperwork and documentation. During the investigation of the Ombud, it was clear that this was not the case.

With regards to the fee structure, the complainant was told (as he remembers it) that he did not have to pay a fee and instead that twenty percent of the profits generated from the fund would be used as a fee.

The complainant obviously felt uneasy about the investment because he once again mentioned his reluctance to invest in a high risk vehicle as he would be investing his whole life savings of R600 000. He asked the respondent how much he should invest and the respondent recommended the complainant invest R500 000. The complainant was assured about the stability of the fund and that it was not influenced by market fluctuations. The respondent reiterated that many of his clients invested in the fund and that he was also an investor in the fund.

When the complainant wanted to withdraw R600 000 from the fund, he emailed a letter of intent to the fund, to which he was informed of the death of Herman Pretorius who was a fund manager and a trustee of the fund.

Opening a can of worms

Unlike many other recent determinations, the respondent did respond to the allegations made to the Ombud.

In his defence, the respondent said that the complainant asked about the RVAF and not the other way around. In the record of advice there was also no indication that the respondent mentioned to the complainant that hedge funds are not regulated in the same way as unit trust funds.

Two articles on a prominent media site unsettled the respondent and prompted him to withdraw all of his client’s savings out of the RVAF. However, he did not mention what particular aspects of the articles made him withdraw the funds.

The respondent further adds that he cannot accept responsibility for what seems to be one person’s deliberate intention to defraud investors.

Unearthing a long list of infringements

The list of aspects of the FAIS Act which the respondent infringed on in this case was very extensive and took up twenty pages in the Ombud’s determination, which can be read here.

One of the most important aspects of the FAIS Act which the respondent contravened was the poor selection of the vehicle in which the funds were invested. During the Ombud’s investigation it was found that there was no financial needs analysis done. The respondent did not present a range of options which could have been invested in other than the RVAF and the complainant never received any documentation that the RVAF was the fund that his capital was invested in. There was also a significant grey area on who the respondent was representing.

Was justice served?

Upon the death of Herman Pretorius, the RVAF went into liquidation and all of the capital invested in the fund was lost. However, the complaint was upheld by the Ombud as it ruled that the capital should never have been invested in this fund in the first place. The respondent was instructed to pay the complainant R500 000 and interest at a rate of fifteen point five percent per year.

What is the role of the Financial Services Board (FSB) in this debacle? Despite the fact that Calitz should have been dealt with by the regulator long before this determination took place, the issue is what will happen to Calitz now? The ruling of the Ombud can hardly be described as a slap on the wrist, but if he is allowed to continue practicing, is justice being served? In all fairness, the FSB should suspend Calitz and never allow him to practice again.

Editor’s Thoughts:
The financial services industry operates on public perception. If the public thinks that one adviser is fraudulent, they may paint a lot of other advisers in the industry with the same brush. The FSB has a duty to fight for the reputation of the industry. Is it fulfilling its role? Please comment below, interact with us on Twitter at @fanews_online or email me your thoughts jonathan@fanews.co.za.

FSP Due Diligence Responsibilities

Author: Paul Kruger

Publications: Moonstone

Date Published: 3 Jul 2014

On Monday, we briefly outlined the background to the first complaint against an advisor who invested client funds in Herman Pretorius’s Relative Value Arbitrage Fund.
In his response to the complaint, the advisor stated, amongst other arguments that he, after reading about possible problems, “…contacted Mr. Pretorius to further investigate the matter. Mr. Pretorius advised me in a meeting at his office that the FSB had visited him and found nothing untoward.”
“If the FSB with all the investigative means at its disposal was not able to detect improper “hedge fund” activities by Pretorius, it surely cannot expect me to have done so.”
He also attached a copy of an e-mail from Tefo Moatshe of the FSB to another adviser dated the 11 May 2009 which states:
“Hedge funds are currently not regulated in South Africa – we only regulate a person who manages a hedge fund portfolio. This means that a person who renders financial services to a client to invest in hedge funds is not a financial services provider and not required to be licensed.”
The Ombud responded to this as follows:
“It is neither considered necessary nor appropriate of this Office to comment on the allegation that the FSB failed to pick up contraventions despite, according to the respondent, the FSB having investigated the business activities of Pretorius on more than one occasion.”
“Whatever the alleged failure on the part of the Financial Services Board, (no opinion is expressed by this Office on this allegation), the respondent’sfailure to conduct even the most basic due diligence is inexcusable. Even more so, given that not only was the respondent directly and regularly interacting with Pretorius and the RVAF, but as discussed hereunder, the respondent was more than amply qualified to pick up on any irregularities.”
The Ombud then expands on the respondent’s membership of a professional body, his obligations under its code of conduct and his professional qualifications.
I find it difficult to reconcile this conclusion with the information published in the media release by the FSB in August 2012 in response to media reports:
“During May 2011 it was brought to the attention of the FSB that Pretorius was “selling shares in unlisted companies” and “promoting these ventures” by making representations to the community.
As the selling of unlisted shares may constitute a financial service as contemplated by the FAIS Act, the FSB followed up on the information which it subsequently received in order to establish whether or not Pretorius was acting in contravention of the FAIS Act, given also the fact that he was not licensed in terms of the FAIS Act.
Some of the findings given were:
“Based on the information supplied in response at the time the FSB was satisfied that:
The private equity or venture capital projects embarked upon or supported by Mr Pretorius did not constitute an activity which was subject to FSB regulation.
Pretorius’s activities did not require a FAIS licence at the time.
The manner in which Pretorius indicated that capital would be raised from investors and the investment vehicle used for the raising of such capital also did not point towards any activity which was subject to FSB regulation or otherwise unlawful…”
The explanations provided to the FSB concerning the nature of the trusts as investment vehicles were such that it could not be established with certainty that their activities were subject to FSB regulation. Some of the ventures were designed for individuals who could properly be considered to be involved in a private domestic affair.”
“Following further complaints received by the FSB in May/June 2012 against Mr. Pretorius it was decided that a formal inspection should be conducted on the affairs of Pretorius and the various investment vehicles utilised in order to establish whether or not the activities of the investment vehicles were subject to FSB regulation. The inspection was under way at the time when Pretorius allegedly committed suicide.”
“There are media reports indicating that concerns were raised with the FSB more than 8 years ago regarding Pretorius’ involvement in hedge funds. In this regard, the FSB wishes to clarify that at that time that these concerns were raised the regulator could not establish any evidence of Pretorius’ activities in hedge funds or any irregularities with regard to the issues that were raised at the time. Further, the FSB wishes to categorically state that, as detailed above, appropriate action was taken from the time that the allegations first surfaced, and that the investigation into this matter is on-going.”
“Concerns have also been raised about how the FSB “allowed what amounts to a gigantic Ponzi scheme to continue under its nose.” Once again, it must be remembered that schemes that are operated outside of and actively in secret from the regulator cannot be said to be operating under the regulator’s nose. Accordingly, to the extent that there was a Ponzi scheme in Pretorius’ activities, such a scheme would have been operated in strict secrecy from the FSB.”
“The FSB is of the view that if there was any non-compliance by Pretorius, it was well-designed not to be subject to regulatory scrutiny. To the extent that investors were lured into any of his projects, such investors carried the risk and obligation to enquire into the merits before parting with their money, especially where above-average returns were being offered. The loss of so much money to so many investors is a sad state of affairs but one for which the regulator is not accountable.”
– See more at: http://www.moonstone.co.za

Investor obtains order for R500 000 refund in RVAF scam

Author: Roy Cokayne          

Publications: iOL

Date Published: 1 Jul 2014

Investor obtains order for R500 000 refund in RVAF scam

An investor in the Relative Value Arbitrage Fund (RVAF), which is in liquidation and whose manager and trustee Herman Pretorius committed suicide in July last year, has successfully obtained an order for the refund of R500 000 invested on the advice of his financial adviser.

Noluntu Bam, the ombud for financial advisory and intermediary services (Fais), yesterday ordered Impact Financial Consultants in Bellville and/or financial adviser Michal Johannes Calitz to repay dentist Dr Craig Stewart Inch the R500 000 he invested in the RVAF.

Bam said the RVAF was nothing short of a scam and initial reports by the joint trustees indicated that most, if not all, investors’ funds had been lost.

She said there were many areas where Calitz was remiss and in direct contravention of the Fais Act. At its simplest, if Calitz had merely requested a set of properly audited financials, the scam would have been revealed, she added.

Bam said this would have been part of basic due diligence. Not only was this elementary step omitted but deficiencies were similarly evident in the lack of any form of proper due diligence study into the fund, its underlying investments or their structure.

Inch said he had trusted Calitz because he was correctly registered as a certified financial planner, a member of the Financial Planning Institute and his company Impact Financial Consultants was correctly licensed with the Financial Services Board (FSB).

He was dismayed that Calitz had not made certain that the investment platform he would be investing his money into was legal, correctly registered and had performed all the necessary due diligences. He had also not checked that RVAF’s fund manager was FSB-licensed, there would be third party verification of returns and valid financial statements and the fund would be correctly audited.

“Calitz acted unethically by investing my money in this ‘hedge fund’. I would never have invested a cent had I known this information.”

Bam said that apart from the issue around the risk profile, the circumstances surrounding the investment were essentially not in dispute, leaving what were essentially allegations about the failure to comply with the Fais Act, including questions of due diligence, appropriateness of advice, licensing and disclosure related to licensing, whether Calitz acted in the interests of his client and the integrity of the financial services industry.

She added that there was no evidence that a need analysis was conducted on Inch and the decision to place the majority of Inch’s savings into such a high risk investment without any diversification defied logic.

Bam said the substantial sums in commissions received by Calitz could simply not be justified when considering the poor quality of advice offered to Inch. She said these commissions were only revealed in a report to creditors in June last year by the trustees of the insolvent estate of the RVAF and a letter dated August 15 last year in which attorneys acting for Calitz conceded that he had received a so-called profit share of R8.44 million.

“Yet on the objective evidence, Calitz could never have conducted even the most basic of due diligences on the RVAF. Calitz placed the funds in a scheme which did not have so much as a financial services provider number, nominee account or even audited financials.

“Schemes such as the RVAF cannot exist without professionals such as Calitz turning a blind eye to legislative requirements,” she said.

FAIS Ombud Rules on RVAF Investment

Author: Paul Kruger

Publications: Moonstone

Date Published: 1 Jul 2014

The reasons for the sad ending to the Relative Value Arbitrage Fund, for both investors and advisors, are evident from this, the first determination by the Ombud on the Herman Pretorius saga.

A client, who invested R500 000 in 2010, complained to the Ombud after losing all his savings when the mastermind behind the fund reportedly committed suicide.

The Ombud quotes the following “important points” from the complaint:

‘I had trust in the respondent as he was correctly registered as a certified financial planner. He was a member of the FPI. His company was FSB licensed. I would never have invested my money in any investment platform by not doing it through a registered financial services provider/certified financial planner. The fact that he is a registered financial services provider makes it certain in my mind that whatever investment platform he would be investing my money in would be:

• legal
• correctly registered
• have all the necessary due diligence performed by himself
• the fund manager (of RVAF) would be FSB licensed
• there would be third-party verification of returns
• there would be valid financial statements
• the fund would be correctly audited

This, I understand, is not the case at all. I am dismayed that none of the above 7 points were fulfilled and I declare that the respondents acted unethically by investing my money in this “hedge fund”. I would never have invested a cent of my money into this fund had I known this information’ (own emphasis).

The Ombud then proceeds to dissect the evidence in terms of the legal obligations of the advisor, including the following:

• The duty to identify the client’s needs
• Disclosures in terms of section 4 and 5 of the Code
• Information on the product supplier
• The Code of Conduct for Discretionary Financial Services Providers
• Risk and hedge fund strategies disclosure as required by the discretionary code and
• Authorisation to conduct business as a financial services provider

Having dealt at great length with all of the above, the Ombud concludes:

“There are so many areas where the respondent was clearly remiss and in direct contravention of the FAIS Act that it is difficult to recap without repeating all that has already been discussed. At its simplest, had the respondent just requested a set of properly audited financials, the scam would have been revealed. This would have been part of basic due diligence. Yet not only was this (sic) most elementary of steps clearly omitted, but similarly, deficiencies are evident in the complete lack of any form of proper due diligence into the investment vehicle, underlying investments or their structure.”

She quotes from the ground-breaking Durr vs ABSA Bank Ltd and Another 1997 (3) SA 448 (SCA), case which states:

“The important issue is that even if the adviser himself does not have the personal competence to make the enquiries, I believe it is incumbent upon him to harness whatever resources are available to him or if necessary to ask for professional, legal or accounting opinion before committing his client’s funds to such an investment”.

Concerning the respondent’s obligations as a member of a professional body, she states:

“The Code of Ethics requires that the 2nd respondent undertake to act in a manner that displays exemplary professional conduct and maintain the abilities, skills and knowledge necessary to provide professional services competently. In short, the 2nd respondent was certified to a standard above and beyond that of the average financial adviser and must be held to this standard.”

A thorough reading of this determination is highly recommended to all investment advisors. In particular, the views of the Ombud on due diligence will clarify an aspect which is still very murky for many of us.

In Thursday’s Moonstone Monitor we will discuss the Ombud’s view on why the FSB failed to identify problems with the RAVF during on-site visits, which is also discussed in this determination.

Please click here to download the full determination.

 

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