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Consumer Credit Insurance in South Africa

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Consumer Credit Insurance in South Africa A report by the Panel of Enquiry on CONSUMER CREDIT INSURANCE IN SOUTH AFRICA CONSUMER CREDIT INSURANCE IN SOUTH AFRICA A report commissioned and sponsored by the Life Offices’ Association of South Africa and the South African Insurance Association LOA Postal address: P O Box 5023 Cape Town 8000 Telephone: 021 421 2586 Fax: 021 421 2599 Email: [email protected] Website: www.loa.co.za SAIA Postal Address: P O Box 30619, Braamfontein, 2107 Telephone 011 726 5381 Fax 011 726 5351 Email: [email protected] Website: www.saia.co.za Members of the Panel Judge Peet Nienaber Chairperson of the Panel of Enquiry, former Ombudsman for Long-term Insurance Moses Moeletsi Chairperson of the Board of the Ombudsman for Short-term Insurance, member of the Council of the Ombudsman for Long-term Insurance Desmond Smith Director of companies, currently chairperson of the Life Offices‘ Association Ronnie Napier Senior partner, Webber Wentzel, former chairperson, South African Insurance Association Louis Wessels Senior head of legal and policy affairs of, and currently consultant to the FSB 21 April 2008 ISBN 978-0-620-40952-0 TABLE OF CONTENTS PAGE NO. CHAPTER 1: INTRODUCTION 1 CHAPTER 2: ISSUES AND TOPICS 5 CHAPTER 3: THE CONCEPT OF CONSUMER CREDIT INSURANCE 7 1. WHAT IS CONSUMER CREDIT INSURANCE? 7 2. TYPICAL CONSUMER CREDIT INSURANCE PRODUCTS 17 3. CONSUMER CREDIT INSURANCE IS DIFFERENT 21 CHAPTER 4: THE CONSUMER CREDIT INSURANCE INDUSTRY IN SOUTH AFRICA 23 CHAPTER 5: CONSUMER CREDIT INSURANCE REGULATION AND MISCONDUCT IN THREE OTHER JURISDICTIONS 29 1. INTRODUCTION 29 2. THE UNITED KINGDOM 29 3. AUSTRALIA 35 4. THE UNITED STATES OF AMERICA 52 CHAPTER 6: INTERMEDIARY REMUNERATION REGULATION 61 1. SOME INTRODUCTORY REMARKS 61 2. THE STIA 61 3. THE LTIA 67 4. CREDIT LIFE INSURANCE AS AN “ASSISTANCE POLICY” 71 5. COMMISSION ARBITRAGE BETWEEN THE LTIA AND THE STIA 72 6. THE FAIS ACT 73 7. THE FAIS CODES 73 PAGE NO. 8. THE POLICYHOLDER PROTECTION RULES (PPR) 74 9. PAYMENTS MADE BY CONSUMERS TO INTERMEDIARIES 74 10. THE NCA 75 11. THE COMPETITION ACT 76 12. THE LOA CODE ON COMMISSION CONTROL 76 13. THE SAIA CODE OF GOOD BUSINESS PRACTICE 77 14. RECAPITULATION 77 CHAPTER 7: THE EVIDENCE ON INTERMEDIARY REMUNERATION 82 1. THE INITIAL QUESTIONNAIRE 82 2. SUMMARY OF THE EVIDENCE OF INSURERS ON INTERMEDIARY REMUNERATION 83 3. SOME COMMENTS ON THE EVIDENCE 91 4. THE FOLLOW-UP QUESTIONNAIRE 92 5. SOME COMMENTS ON THE RESPONSES TO THE FOLLOW-UP QUESTIONNAIRE 122 CHAPTER 8: THE PANEL’S RECOMMENDATIONS ON INTERMEDIARY REMUNERATION REGULATION 124 1. SOME INTRODUCTORY REMARKS 124 2. REGULATION OF THE INTRODUCTION FEE? 126 3. REGULATION OF THE SERVICING FEE? 133 4. A SPECIAL DISPENSATION FOR THE LOWER INCOME END OF THE CONSUMER CREDIT INSURANCE MARKET? 137 4.2 Should there be a special regulatory dispensation for the lower end of the CCI market? 137 PAGE NO. 4.3 If there is to be a special dispensation, at what level should the line be drawn? 139 4.4. Should the LOA‘s Zimele product standards for credit life be extended to other forms of CCI and in particular should separate models be devised for different CCI products subject to the predetermined amount of cover? 139 4.5. By whom and on what basis should the premium rates in respect of different product lines be fixed? 142 4.6 Should the proposed different models, with the inclusion of a predetermined maximum premium for each product line, be made compulsory by law? 142 4.7. Should commission (i.e. the introduction fee) for CCI products with a benefit level not exceeding the pre-determined level be capped? 143 5. THE LEVEL OF REMUNERATION 145 6. WHICH ENTITY SHOULD ADMINISTER CONSUMER CREDIT INSURANCE? 146 7. AN OVERVIEW OF THE RECOMMENDATIONS OF THE PANEL ON INTERMEDIARY REMUNERATION 149 8. LEGISLATIVE AMENDMENTS 149 CHAPTER 9: CELL CAPTIVES, UNDERWRITING MANAGERS AND PROFIT SHARING ARRANGEMENTS 151 1. BACKGROUND TO CELL CAPTIVES 151 2. LEGAL REQUIREMENTS 153 3. MARKET OPPORTUNITIES FOR CELLS 154 4. TYPICAL OPERATION OF A THIRD PARTY CELL 154 5. THE INITIAL QUESTIONNAIRE RELATING TO CELL 155 CAPTIVES PAGE NO. 6. THE FOLLOW-UP QUESTIONNAIRE RELATING TO CELL CAPTIVES 156 7. CONCERNS ABOUT CELL CAPTIVES 159 8. UNDERWRITING MANAGERS 163 9. PROFIT-SHARING ARRANGEMENTS 169 CHAPTER 10: INSTANCES AND ISSUES OF NON-COMPLIANCE WITH INTERMEDIARY REMUNERATION REGULATIONS 170 1. THE PANEL’S APPROACH 170 2. PAYMENT OF REMUNERATION IN EXCESS OF THE STATUTORY MAXIMUMS 175 3. NON-MONETARY GIFTS AND VOUCHERS 190 4. CONTRIBUTING TO AN INTERMEDIARY’S MARKETING COSTS AND INFRASTRUCTURE 190 5. PAYMENT FOR THE USE OF AN INTERMEDIARY’S DATA BASE 190 6. PAYMENT OF ROYALTIES FOR THE USE OF AN INTERMEDIARY’S BRAND NAME 191 7. PAYMENT MADE FOR ADVICE 192 8. INCREASED PREMIUM RATES 193 9. PRE-DELIVERY INSPECTION AND REPAIR WORK 193 CHAPTER 11: MARKET CONDUCT REGULATION 194 1. SOME INTRODUCTORY REMARKS 194 2. THE STIA 195 3. THE LTIA 198 4. THE FAIS ACT 198 5. THE FAIS GENERAL CODE OF CONDUCT 199 6. THE POLICYHOLDER PROTECTION RULES (PPR) 201 PAGE NO. 7. THE NCA 202 CHAPTER 12: MARKET MISCONDUCT 204 1. SOME INTRODUCTORY REMARKS 204 2. THE GUMEDE DETERMINATION 205 3. LACK OF PROPER DISCLOSURE 208 3.5. Not disclosing costs and charges 208 3.6 Not highlighting sensitive terms and conditions1 210 3.7. Not highlighting the health declaration 212 3.8. The need for a follow-up letter 212 3.9. Not informing complainants of their recourse to Ombudsman‘s offices 213 4. PRE-SALE MISSELLING BY INTERMEDIARIES 214 5. LACK OF AWARENESS BY CONSUMERS OF THE EXISTENCE OF THE CREDIT INSURANCE POLICY 215 6. FAILURE TO EXPLAIN THE TERMS OF THE POLICY, THE LIMITATIONS AND THE EXCLUSIONS OF COVER 217 7. FOISTING POLICIES ON CONSUMERS 219 8. AMBIGUOUS AND OBSCURE POLICY LANGUAGE 220 9. EXCESSIVELY WIDE LIMITATIONS AND EXCLUSION CLAUSES 221 10. EXTENDED WARRANTIES 225 11. DIRECT MARKETING 226 12. TIME BARS 228 13. CONFLICTS OF INTEREST 230 14. SINGLE PREMIUM MALPRACTICES 231 1 See too sections 6 and 9 below. PAGE NO. 15. PREMIUM COLLECTION 232 16. DISTRIBUTION CHANNELS 232 CHAPTER 13: PRODUCT VALUE PROPOSITION 233 1. VALUE FOR MONEY? 233 2. THE PUBLIC PERCEPTION OF CONSUMER CREDIT INSURANCE IN SOUTH AFRICA 235 3. PRICING 237 4. CONSUMER AWARENESS 243 5. LEVELS OF REPUDIATION 244 6. THE SCOPE OF COVER 246 7. THE USE OF EXCLUSIONS AND OTHER UNDERWRITING PRACTICES 247 8. DISCLOSURE 250 9. CLAIM NOTIFICATION PERIODS 251 10. CONCLUSIONS 252 CHAPTER 14: CONSUMER AWARENESS AND EDUCATION ABOUT CONSUMER CREDIT INSURANCE 254 1. SOME INTRODUCTORY REMARKS 254 2. PROVIDERS OF FINANCIAL LITERACY PROGRAMMES IN SOUTH AFRICA 254 3. ALLOCATIONS FOR CONSUMER EDUCATION FUNDS 256 4. CONSUMER EDUCATION IN RESPECT OF CONSUMER CREDIT INSURANCE 257 5. THE FOLLOW-UP QUESTIONNAIRE 258 6. RECOMMENDATIONS 259 PAGE NO. CHAPTER 15: CONCLUSIONS AND RECOMMENDATIONS 261 1. IN GENERAL 261 2. INTERMEDIARY REMUNERATION 263 3. REGULATION REVISION 265 4. MARKET CONDUCT 268 5. WHICH ENTITY SHOULD ADMINISTER CONSUMER CREDIT INSURANCE? 270 6. THE MAIN RECOMMENDATIONS OF THE REPORT 271 7. END-NOTE 271 1 CONSUMER CREDIT INSURANCE ENQUIRY REPORT OF THE PANEL OF ENQUIRY APPOINTED BY THE LOA AND SAIA CHAPTER 1: INTRODUCTION 1. During July 2007 reports appeared in the financial press alleging that some insurers active in the Consumer Credit Insurance market in South Africa were persistently paying commissions, to the detriment of consumers, to motor dealerships in excess of the permissible maximum rates. This practice, so it was stated, constituted contraventions of the Long-term and Short-term Insurance Acts of 1998 and the relevant regulations issued in terms thereof and would in addition contravene the industry Code of Conduct to which members of the Life Offices‘ Association (―the LOA‖), representing long-term insurers, subscribed.1 The chief executive of the insurer named in some of the media reports also happened to be a prominent office- bearer of the LOA. Since Consumer Credit Insurance can be written under either a long-term or a short-term licence, members of South African Insurance Association (―SAIA‖), the body representing short-term insurers in South Africa, were also implicated. The negative publicity for the entire industry following on these revelations prompted the LOA and SAIA to co-sponsor a wide-ranging investigation ―to identify and eradicate undesirable practices prevalent in the consumer credit insurance market impacting negatively on consumers.‖ 2 2. A panel of enquiry (―the Panel‖) was accordingly appointed. Its members were: Mr Justice Peet Nienaber, formerly a judge of the Supreme Court of Appeal and the recently retired Ombudsman for Long-term Insurance, as the chairperson; Mr Moses Moeletsi, formerly chief director Gauteng Consumer Affairs, currently a regulatory executive of the South African Bureau of Standards and chairperson of the Board of the Ombudsman for Short-term Insurance and a member of the Council of the Ombudsman for Long-term Insurance; Mr Ronnie Napier, a former SAIA 1 A list of newspaper reports appearing at the time, of which the first report in Personal Finance of 7 July 2007 is quoted in full, is annexed hereto as Appendix 1. 2 Joint LOA and SAIA media release dated 30 August 2007, annexed to this report as appendix 2. 2 chairperson and a senior partner at the law firm, Webber Wentzel; Mr Desmond Smith, chairperson of the LOA Board and a director of companies; and Mr Louis Wessels, the former head of legal and policy affairs of the Financial Services Board (―the FSB‖). 3. Observer status was offered to nominees of the FSB and National Treasury. Ms Tholoana Makhu, Manager Insurance Registration & Policy, represented the FSB and Ms Katherine L Gibson, Senior Economist, Financial Services, represented National Treasury.
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