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I believe anybody who claims to be ready for the implementation of the FIM Bill is either vastly overestimating his capabilities or vastly underestimating what is coming! The expanse and complexity of this law really puts it out of the reach of the mental capacity of any individual, certainly mine I do acknowledge, unlike its predecessor law, the Pension Funds Act that is still digestible. In trying to get a full grasp on any question one has to roam between various ‘chapters’ (or laws), getting lost in between most of the time. One cannot just focus on the ‘chapter’ (law) relating to the industry one is doing business in. As the result, I concluded that the pension funds chapter made no provision for transitional arrangements, which it does not. But when one then turns to ‘chapter’ 11, there are transitional provisions that apply to all financial services institutions covered by this new Bill. In addition there is absolutely not precedent one can rely on for finding an answer where no answer was found despite focused roaming.

NAMFISA is confident that it is ready for the FIM Bill and what this requires of it, and so is the Minister of Finance. In the light of this confidence it is interesting to note though that the FIM Bill keeps a back door open for both the Minister and NAMFISA to make law very informally and un-procedurally where it provides in clause 7 of schedule 3, of section 4, of chapter 11 “On the effective date, and for a period of 60 days after the effective date, the Minister and NAMFISA may make any subordinate measure of a legislative nature contemplated in the Act without meeting the procedural requirements set out in this Act, provided the Minister and NAMFISA have published such proposed subordinate measure in the Gazette, allowing a period of at least 30 days for comment.”

So the Minister and NAMFISA have a carte blanche to change the law within the first 60 days after its effective date, without this having to go through parliament. There is not even any requirement that any comment, for which merely 30 days are afforded, has to be considered properly!

The rationale for this back door is not self-evident. Either the Minister and NAMFISA are indeed scared of their own courage in introducing this statutory revolution (by NAMFISA’S own words) or one or both of these parties already have certain changes in mind that would evidently not have passed parliament, or both. The first consideration is unlikely as 60 days is too short a period to fix any serious problems the Bill may cause. I shudder to think it may be the second consideration?

Important notice and disclaimer
This article summarises the understanding, observation and notes of the author and lays no claim on accuracy, correctness or completeness. Retirement Fund Solutions Namibia (Pty) Ltd does not accept any liability for the content of this contribution and no decision should be taken on the basis of the information contained herein before having confirmed the detail with the relevant party. Any views expressed herein are those of the author and not necessarily those of Retirement Fund Solutions.

 

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