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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

28. Determinations by Ombud

 

 

1) The Ombud must in any case where a matter has not been settled or a recommendation referred to in section 27(5)(c) has not been accepted by all parties concerned, make a final determination, which may include –
a) the dismissal of the complaint; or
b) the upholding of the complaint, wholly or partially, in which case –
i) the complainant may be awarded an amount as fair compensation for any financial prejudice or damage suffered;
ii) a direction may be issued that the authorised financial services provider, representative or other party concerned take such steps in relation to the complaint as the Ombud deems appropriate and just;
iii) the Ombud may make any other order which a Court may make.
2)
a) A monetary award may provide for the amount payable to bear interest at a rate and as from a date determined by the Ombud.
b) The Board may by rule determine –
i) the maximum monetary award for a particular kind of financial prejudice or damage;
ii) different maximum monetary awards for different categories of complaints;
iii) the granting of costs, including costs against a complainant in favour of the Office or the respondent if in the opinion of the Ombud –
(aa) the conduct of the complainant was improper or unreasonable; or
(ab) the complainant was responsible for an unreasonable delay in the finalisation of the relevant investigation : Provided that an amount payable under a cost award bears interest at a rate and as from a date determined by the Ombud.

 

3) Any award of interest by the Ombud in terms of subsection (2) may not exceed the rate which a Court would have been entitled to award, had the matter been heard by a Court.

 

4)
a) the Ombud must reduce a determination to writing, including all the reasons therefor, sign the determination, and send copies thereof to the registrar and all parties concerned with the complaint and, if no notice of appeal to the board of appeal has been lodged within the period required therefor, to the clerk or registrar of court which would have had jurisdiction in the matter had it been heard by a Court.
b) Where a notice of appeal has been lodged, the Ombud must send a copy of the final decision of the board of appeal to any such clerk or registrar.

 

5) A determination –
a) or a final decision of the board of appeal, as the case may be, is regarded as a civil judgment of a Court, had the matter in question been heard by a Court, and must be so noted by the clerk or registrar, as the case may be, of that Court;
b) is only appealable to the board of appeal –
i) with the leave of the Ombud after taking into consideration –
aa) the complexity of the matter; or
bb) the reasonable likelihood that the board of appeal may reach a different conclusion; or
ii) if the Ombud refuses leave to appeal, with the permission of the chairperson of the board of appeal.

 

6)
a) A writ of execution may, in the case of a determination or a final decision of the board of appeal amounting to a monetary award, be issued by the clerk or the registrar referred to in subsection (3) and may be executed by the sheriff of such Court after expiration of a period of two weeks after the date of the determination or of the final decision of the board of appeal, as the case may be.
b) Any other determination must be given effect to in accordance with the applicable procedures of a Court after expiration of a period of two weeks after the date of the determination or of the final decision of the board of appeal.