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Financial Advisory and Intermediary Services Act, 2002 (Act No. 37 of 2002)

Chapter VI : Enforcement

Part 1 : Ombud for financial services providers

27. Receipt of complaints, prescription, jurisdiction and investigation

 

 

1) On submission of a complaint to the Office, the Ombud must –
a) determine whether the requirements of the rules contemplated in section 26(1)(a)(iv) have been complied with;
b) in the case of any non-compliance, act in accordance with the rules made under that section; and
c) otherwise officially receive the complaint if it qualifies as a complaint.

 

2) Official receipt of a complaint by the Ombud suspends the running of prescription in terms of the Prescription Act, 1969 (Act No. 68 of 1969), for the period after such receipt of the complaint until the complaint has either been withdrawn, or determined by the Ombud or the board of appeal, as the case may be.

 

3) The following jurisdictional provisions apply to the Ombud in respect of the investigation of complaints -
a)
i) The Ombud must decline to investigate any complaint which relates to an act or omission which occurred on or after the date of commencement of this Act but on a date more than three years before the date of receipt of such complaint by the Office.
ii) Where the complainant was unaware of the occurrence of the act or omission contemplated in subparagraph (i), the period of three years commences on the date on which the complainant became aware or ought reasonably to have become aware of such occurrence, whichever occurs first.
b)
i) The Ombud must decline to investigate any complaint if, before the date of official receipt of the complaint, proceedings have been instituted by the complainant in any Court in respect of a matter which would constitute the subject of the investigation.
ii) Where any proceedings contemplated in subparagraph (i) are instituted during any investigation by the Ombud, such investigation must not be proceeded with.
c) The Ombud may on reasonable grounds determine that it is more appropriate that the complaint be dealt with by a Court or through any other available dispute resolution process, and decline to entertain the complaint.

 

4) The Ombud must not proceed to investigate a complaint officially received, unless the Ombud –
a) has in writing informed every other interested party to the complaint of the receipt thereof;
b) is satisfied that all interested parties have been provided with such particulars as will enable the parties to respond thereto; and
c) has provided all interested parties the opportunity to submit a response to the complaint.

 

5) The Ombud –
a) may, in investigating or determining an officially received complaint, follow and implement any procedure (including mediation) which the Ombud deems appropriate, and may allow any party the right of legal representation ;
b) must, in the first instance, explore any reasonable prospect of resolving a complaint by a conciliated settlement acceptable to all parties ;
c) may, in order to resolve a complaint speedily by conciliation, make a  recommendation to the parties, requiring them to confirm whether or not they accept the recommendation and, where the recommendation is not accepted by a party, requiring that party to give reasons for not accepting it: Provided that where the parties accept the recommendation, such recommendation has the effect of a final determination by the Ombud, contemplated in section 28(1);
d) may, in a manner that the Ombud deems appropriate, delineate the functions of investigation and determination between various functionaries of the Office; -
e) may, on terms specified by the Ombud, mandate any person or tribunal to perform any of the functions referred to in paragraph (d).

For the purposes of any investigation or determination by the Ombud, the provisions of the Commissions Act, 1947 (Act No. 8 of 1947), regarding the summoning and examination of persons and the administering of oaths or affirmations to them, the calling for the production of books, documents and objects, and offences by witnesses, apply with the necessary changes.