From a cold and dull Jhb., IIG warmly welcomed all Insights attendees on behalf of IIG’s President, Simphiwe Mtyali. Today’s highly informative Insights session was hosted by IIG’s Head of Stakeholder Engagement, Antonia Oakes and we were privileged to have the joint expertise of Christine Rodrigues and Ashish Desai.
Christine is an insurance and re-insurance expert (life and non-life) and has worked with major insurers and brokers (both locally and internationally based) as well as industry associations. Christine spent time working for one of South Africa’s leading privately owned insurance groups where she implemented the Financial Advisory and Intermediary Services Act, 2002 compliance programme. She worked both in the insurance group’s South African and Mozambican insurance licensed entities. Christine deals with all aspects relating to insurance legal and compliance issues. Her experience includes liaising with the various ombuds, advising and assisting with various applications with the insurance regulators as well as providing insurance regulatory opinions to the insurance industry both in litigious and non-litigious matters.
Christine Rodrigues
Ashish Desai
Ashish has over 24 years of experience at the helm of insurance organisations, and as a CEO and senior Executive in Asia, Africa, and UK he has managed turnarounds, market entries, mergers and acquisitions and driven disruptive change mandates successfully. An alumnus of Wharton Business School and Manchester University, as well a Fellow of GIBS (Centre for African Management and Markets) and the Institute and Faculty of Actuaries (UK), Ashish is a versatile business leader, intuitive strategist, with a solid track record in shaping and driving organisations into their future selves. He is a regular speaker at Africa wide industry events. He is an engaged Young Presidents Organisation (YPO) member and serves on various Boards.
Christine kicked off by outlining the legal process on how a curator is appointed and was able to draw from personal experiences as she had previously worked on a curatorship & liquidation herself.
What is Curatorship and when is it triggered?
CICL was largely used as a case-study and the reason the Prudential Authority (PA) decided to place it under curatorship is because the funds fell short of solvency capital requirements. This entity was not placed in business rescue and although CICL submitted numerous proposals for capital injection into the business via investors, none materialised. The Curatorship effectively steps into the shoes of Management and Board and runs the company. The Curator, in terms of a court order, can have more power as if it were a Board Member. However, the Curator cannot and should not run a company in its commercial capacity due to the many liability issues and relies on information provided by the entity’s employees as well as the due diligence done by the curatorship team.
The Curator must motivate to the PA as to how he will be able to access professional resources if he doesn’t have personal capacity and expertise in certain areas. There are various elements that influence the timeline of placing an Insurer under curatorship. The PA afforded CICL several extensions to restore financial soundness, and in the mix the pandemic caused further delays. Following another unsuccessful attempt at raising capital the PA issued a notice to CICL to cease new business to contain the current liabilities. They also informed them that they will be considering the next appropriate steps within the remit of the regulations. Due to the failure of capital injection and the risk of business defaulting on current and future obligations, curatorship was triggered.
Curatorship is a difficult role as no prejudice can occur and any decisions must be reasonable. The Curator had to report to the PA on a weekly basis. The PA would then have the opportunity to have further discussion with the FSCA. One must act within the confines of legislation and appreciate that the Curator is not management and so cannot make decisions based on a commercial risk.
Ash then outlined the role and responsibilities of the provisional Curator:
Issues to be considered:
- What do we do with policyholders who as an example have their cars at panel beaters – repairs have been undertaken but the claim has not been paid?
- When does the broker have its commission paid?
- What about the potential of a group of people (e.g., medical professionals) that will become uninsured?
- What about the employees?
- Management and the PA.
Ash expressed that it’s quite useful to share what the provisional curator had to get done. On Day 1 it’s very clear that the provisional curator must Take Control, Manage and Investigate the company. This entity had a capital structure issue and was not a situation whereby the company necessarily did anything wrong. The Curator also had to determine if anything could have been done earlier to rescue the situation. The court order gave explicit and specific direction to act in the best interest of policyholders when taking control of CICL. There were numerous practical challenges such as the volume of several bank accounts etc. The Curator was not allowed to dispose of any assets other than to pay policyholders. If the Curator did not have control of those bank assets, he would’ve fallen foul of that requirement. It was imperative to communicate with external and internal stakeholders. The explicit requirement of the appointment was to perform the duties by engaging with industry experts. He had to act with the Duty of Public Interest. There must also be regular transparency to the PA and be open to receive both guidance and blessings. The Curator was allowed through rational logical reasons that if one needed to go into liquidation, then they must do so. This decision was taken along with the guidance of the Deloitte actuaries who did a thorough analysis of CICL’s financials.
Christine once again emphasized that all decisions must always be in the interest of policyholders. When a company goes into liquidation, attempting to meet premium payments can be deemed as showing preference by the liquidator. Reference was made to the Saxom liquidation whereby the Insurance Association created a “hardship fund” with a pocket of beneficiaries and claims were paid only from this fund and not the company itself. In their attempt to remain objective, Curators often are the recipients of much abuse in an already heated environment.
Ash then unpacked some of the challenges around the implementation of curatorship. The PC is expected to effect decisions from Day 1 with limited knowledge and insights into the business, whilst working with Management who have in-depth knowledge but no decision-making powers. The PC must apply judgement to ensure decisions are fair and guided by the legislative framework under which the curatorship was granted. Acting fairly and in the best interest of all stakeholders is not always clear cut. The PC had to delay claim payments when the PC was at the risk of creating preferential creditors and claimants. This decision created further frustration for policyholders and additional pressure with the UMAs and brokers. Curveballs are part of the journey. Stakeholder reaction to actions is not always predictable. New and emerging circumstances cannot always be foreseen. The PC journey involved multiple streams of work and multiple stakeholder groups, and all within a short space of time, leading to a fast and changing landscape. Acting in the interest of one group potentially disadvantages another, and therefore creates a potential personal liability emanating from the disadvantaged group. Irrespective, the PC needs to make some tough decisions. Access to strong technical, legal, and regulatory support was critical.
Some of the Learnings were:
- There is no blueprint for a successful curatorship. Each situation is unique, and the curator must make judgement calls based on limited, asymmetrical information. Guidance from the PA is critical:
- Encourage sharing of learnings,
- Enables efficient and quicker decision making,
- The curator needs to maintain a clear, professional mind while under constant pressure with (often conflicting) demands from all angles. The ability to parse continuous streams of complex information. Maintain strength of conviction in execution of duties in compliance with the court order.
The IIG host thanked both speakers for a highly valuable session and indicated we may need a ‘Part 2” series and/or discussion based on the popularity and interest raised during this session.
Article written by: Asiya Swaleh
