Financial Services Ombud Schemes Act, 2004 (Act No. 37 of 2004)

1. Definitions

Purchase

In this Act, unless the context indicates otherwise—

"Adjudicator"

means the Pension Funds Adjudicator appointed in terms of section 30C(1) of the Pension Funds Act, 1956 (Act No. 24 of 1956);

"board"

means the Financial Services Board established by section 2 of the Financial Services Board Act;

"client"

means a person who uses the services of a financial institution or a person who enters into a transaction with a financial institution in respect of a product of that institution, and includes the—

(a) successor in title of such person; and

(b) beneficiary of such service or product;

"complaint"

means a complaint by a client relating to any agreement with, or a financial service or product of, a financial institution, and in which it is alleged that the client has suffered or is likely to suffer financial prejudice or damage as a result of the financial institution—

(a)	having contravened or failed to comply with a provision of any agreement or the law or of a code of conduct subscribed to by the financial institution;

(b)	having wilfully or negligently supplied, or failed to supply, a financial service or a product to the client;

(c)	having treated the client unreasonably or inequitably; or

(d)	having maladministered the implementation of an agreement with, or the supply of a financial service or a product to, the client;

"Council"

means the Financial Services Ombud Schemes Council established by section 2;

"financial institution"

means—

(a)	a bank as defined in section 1(1) of the Banks Act, 1990 (Act No. 94 of 1990) or a mutual bank as defined in section 1(1) of the Mutual Banks Act, 1993 (Act No. 124 of 1993), or a co-operative bank as defined in section 1 of the Co-operative Banks Act, 2007;

[Paragraph (a) substituted by section 90 of Act No. 40 of 2007]

(b)	any financial institution contemplated in paragraph (a) of the definition of "financial institution" in section 1 of the Financial Services Board Act; or

(c)	any person declared to be a financial institution in terms of section 17;

"Financial Services Board Act"

means the Financial Services Board Act, 1990 (Act No. 97 of 1990);

"Minister"

means the Minister of Finance;

"ombud"

means a person who is empowered in terms of a scheme to resolve a complaint;

"Ombud for Financial Services Providers"

means the Ombud for Financial Services Providers appointed in terms of section 21(1)(a) of the Financial Advisory and Intermediary Services Act, 2002 (Act No. 37 of 2002), and includes a deputy ombud appointed in terms of section 21(1)(b) of that Act;

"participant"

in relation to a scheme, means a financial institution that takes part in the scheme or its funding and that submits to the authority of the relevant ombud;

"person"

includes a trust;

"prescribed"

means prescribed by regulation;

"recognised scheme"

means a scheme that has been granted recognition in terms of section 11;

"registrar"

means the executive officer appointed as such in terms of section 13(1)(a) of the Financial Services Board Act;

"regulation"

means a regulation made in terms of section 19;

"scheme"

notwithstanding any other law, means any scheme or arrangement established by or for a financial institution, or a group of financial institutions, in order to resolve a client’s complaint by an ombud—

(a)	and includes any arrangement in terms of which resolution of the complaint is to be effected by mediation, conciliation, recommendation, determination or arbitration;

(b)	but does not include any internal complaint resolution arrangement established by a financial institution either with or without any affiliate or subsidiary of the institution, nor the activities of the Ombud for Financial Services Providers, the Adjudicator and statutory ombud;

"statutory ombud"

means the Ombud for Financial Services Providers, acting in the capacity contemplated in section 14;

"this Act"

includes—

(a) any regulation; and

(b) any determination, decision, requirement or condition made, determined or imposed, and any notice published, by the Minister.