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When is a complaint out of time?

The recent Bester determination by the FAIS Ombud provides guidance on the requirement that a complaint must be lodged within three years. We often understand this to mean from the time the advice was given, but this is not quite so simple, as can be seen from the extract below:

“All four respondents have pointed to this Office that the complaint is time barred. They contend that the advice was furnished more than three years before the complainant lodged his complaint and that therefore the Ombud is precluded from investigating the complaint.”

“[130] The jurisdiction provision relating to prescription is to be found in section 27 (3) of the FAIS Act (a) (i) which provides:
‘(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 complaint became aware or ought reasonably to have become aware of such occurrence, whichever occurs first.’

[131] The assertion that prescription started to run from the date that the financial service was rendered, is incorrect. The complainant was not aware that he had been poorly advised, the consequence of which was that he could suffer financial damage. It was only when his income stopped in 2009 that complainant became aware that something had gone wrong. Even then, he brought this problem to the first respondent’s attention who counselled that as far as he was concerned, and this is not denied by first respondent, it was a minor problem that would soon be sorted out. Even at that stage, he did not have the necessary facts to even know where and what the nature of the problem was, let alone the fact that he knew that he had an enforceable claim.”

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