Secondary

ombudsman

Was Ombud entitled to bend the rules?

This question will be answered on 30 November, when the J C Mostert / L Landman appeal against a determination by the FAIS Ombud Appeal is heard by the FSB Appeal Board.

We believe that the essence of the appeal will be against the decision by the Ombud to rule on the complaint, despite the fact that the complaint was not initially addressed to the FSP.

In the actual determination, the Ombud reasoned as follows:

[36] I am alive to the fact that there is no record that complainant had first brought the complaint to respondent’s attention, in order to afford respondent the opportunity to resolve same before referring it to this office.

[37] Rule 5(b) provides as follows: “[5] Rights of complainants in connection with complaints (b) Before submitting a complaint to the office, the complainant must endeavour to resolve the complaint with the respondent…”

[38] The provisions of Rule 5 (b) seem to be straight forward. Complainant must endeavour to resolve the complaint with the respondent before submitting the complaint to the FAIS Ombud.

[39] The purpose of this provision is to avoid unnecessary costs. In the event respondent resolves the complaint with complainant, there would be no need for the FAIS Ombud’s intervention.

It appears rather odd that a legal requirement would be based on cost, rather than fairness.

The Ombud then cites several case studies to justify her decision.

From a strictly legal perspective, the following applies:

The Ombud is a creature of statute and has no jurisdictional discretion – unlike a court of law. She has to abide by the Rules – and the Rules say:

4. Type of complaint justiciable by Ombud.
(a) For a complaint to be submitted to the Office—
(i) the complaint must fall within the ambit of the Act and these Rules;
(ii) the person against whom the complaint is made must be subject to the provisions of the Act (hereafter referred to as “the respondent”);
(iii) the act or omission complained of must have occurred at a time when these Rules were in force; and
(iv) the respondent must have failed to address the complaint satisfactorily within six weeks of its receipt.
5. Rights of complainants in connection with complaints.
(a) The complainant must qualify as such in terms of the Act and these Rules.
(b) Before submitting a complaint to the Office, the complainant must endeavour to resolve the complaint with the respondent.
(d) On submitting a complaint to the Office, the complainant must satisfy the Ombud of having endeavoured to resolve the complaint with the respondent, and must produce the final response (if any) of the respondent as well as the complainant’s reasons for disagreeing with the final response.

It will be interesting to see the ruling by the Appeal Board.

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