Rules

These Rules, effective from 1 January 1998 and last amended with effect from 6 & 30 June 2016, regulate the relationship between the Ombudsman for Long-term Insurance (the Ombudsman) and each member of the Long-term Insurance Industry who subscribes to the Ombudsman’s scheme as well as between the Ombudsman and each complainant who lodges a complaint with the Ombudsman’s office.

1. Mission
   1. The mission of the Ombudsman is to receive and consider complaints against subscribing members and to resolve such complaints through mediation, conciliation, recommendation or determination.
   2. he Ombudsman shall seek to ensure that:
      1. he or she acts independently and objectively in resolving any complaint received and takes no instructions from anybody regarding the exercise of his or her authority;
      2. he or she follows informal, fair and cost-effective procedures;
      3. he or she keeps in balance the scale between complainants and subscribing members;
      4. he or she accords due weight to considerations of equity;
      5. he or she maintains confidentiality, in so far as it is feasible to do so and subject to Rules 3.8 and 7 below, in respect of every complaint received;
      6. he or she co-operates with the Council established in terms of the Financial Services Ombud Schemes Act, 2004, in promoting public awareness of the existence, function and functioning of the Ombudsman and the Ombudsman’s office and in informing potential complainants of available dispute resolution forums;
      7. subscribing members act with fairness and with due regard to both the letter and the spirit of the contract between the parties and render an efficient service to those with whom they contract.
2. Jurisdiction
   1. Subject to Rule 2.2, the Ombudsman shall receive and consider every complaint which arises from the use by the complainant of the services of a subscribing member and every complaint by a complainant who is or claims to be a policyholder, a successor in title,a beneficiary, a life insured or a premium payer, against a subscribing member concerning or arising from the marketing, conclusion, interpretation, administration, implementation or termination of any long-term insurance contract marketed or effected within the Republic of South Africa.
   2. The Ombudsman shall not consider a complaint:
      1. if such complaint is, or if it has been, the subject of legal proceedings instituted and not withdrawn, or if legal proceedings are contemplated to be instituted by the complainant against the subscribing member, during such time as the complaint remains under advisement by the Ombudsman; or
      2. if it has previously been determined by the Ombudsman, unless new evidence likely to affect the outcome of a previous determination has thereafter become available; or
      3. if three years or more has elapsed from the date on which the complainant became aware or should reasonably have become aware that he or she had cause to complain to the Ombudsman, unless the failure so to complain within the said period was due to circumstances for which, in the opinion of the Ombudsman, the complainant could not be blamed.
3. Procedure
   1. The Ombudsman shall require, or in suitable circumstances cause, all complaints to be reduced to written or electronic form, shall elicit such further information or expert advice as is regarded as necessary and shall seek to resolve every such complaint through mediation, conciliation, recommendation, failing which, by determination.
   2. The determination aforesaid may be to:
      1. decline to consider the complaint;
      2. uphold the complaint, either wholly or in part;
      3. dismiss the complaint;
      4. make a ruling of a procedural or evidentiary nature;
      5. award compensation, irrespective of a determination made in terms of Rule 3.2.2 or 3.2.3, for material inconvenience or distress or for financial loss suffered by a complainant as a result of error, omission or maladministration (including manifestly unacceptable or incompetent service) on the part of the subscribing member; provided that the amount of such compensation shall not exceed the sum of R50 000;
      6. order a subscribing member, in addition to any other recommendation or determination made, to pay interest to a complainant on the pertinent sum at a rate and from a date that is considered to be fair and equitable in the circumstances.
      7. order a subscribing member to take, or refrain from taking, any such action in regard to the disposal of a specific complaint as the Ombudsman may deem necessary.
      8. issue a declaratory order.
   3. The Ombudsman may decline to consider or may dismiss a complaint, at any stage of the complaints handling process, if it appears to him or her that:
      1. the complaint has no reasonable prospect of success; or
      2. the complaint is being pursued in a dishonest, frivolous, vexatious, abusive or unreasonable manner; or
      3. the complaint can more appropriately be dealt with by a court of law; or
      4. the complaint is predominantly about investment performance or the legitimate exercise by a subscribing member of its commercial judgment; or
      5. the complainant has not suffered, and is not likely to suffer, material inconvenience or distress or financial loss either within the meaning of Rule 3.2 polska-ed.com.5. or at all.
   4. If a complainant or a subscribing member fails or refuses to furnish information requested by the Ombudsman within the period fixed for that purpose, the Ombudsman shall be free to make a determination on the information as may then be available to him or her.
   5. A determination made by the Ombudsman shall be binding on the subscribing member concerned.
   6. A determination made by the Ombudsman shall not preclude the complainant from thereafter instituting legal proceedings against a subscribing member in respect of any such complaint.
   7. All exchanges between, on the one hand, the office of the Ombudsman and a complainant and, on the other, the office and a subscribing member in relation to a complaint and all the documentation generated in regard thereto, shall by agreement be regarded as privileged and shall as such be immune from disclosure in evidence, save by an order of court or the consent of the parties concerned.
   8. In any case in which a determination as provided for in Rule 3.2.2 is made against a subscribing member, or in which in an appeal by a complainant a ruling is made by the Appeal Tribunal holding that the appeal is substantially successful as envisaged in Rule 6.8.3, the Ombudsman shall publish such determination or ruling, including a summary of the facts concerned, the reasons for the determination and the identity of the subscribing member; provided that the Ombudsman shall not publish as aforesaid in any case in which there is reason to believe that such publication will expose the identity of the complainant, the policyholder, a successor in title or beneficiary, a life insured or a premium payer; provided further that there will be no publication of a determination by the Ombudsman against a subscribing member if on appeal the subscribing member is substantially successful as envisaged in Rule 6.9.1.
4. Prescription
   The receipt of a complaint by the Ombudsman suspends any applicable contractual time barring terms or the running of prescription in terms of the Prescription Act (Act 68 of 1969), for the period from such receipt until the complaint has been withdrawn by the complainant concerned, been determined by the Ombudsman or any appeal in terms of these Rules has been disposed of.
5. Determination of disputes of fact
   1. The Ombudsman shall resolve material disputes of fact on a balance of probabilities and with due regard to the incidence of the onus.
   2. If the Ombudsman is of the opinion that a material and conclusive dispute of fact cannot be resolved on a balance of probabilities and with due regard to the incidence of the onus, the parties concerned shall be advised that a determination in favour of the one or the other party cannot be made.
   3. Notwithstanding Rule 5.2, if the Ombudsman and all the parties concerned are in agreement that a complaint or a material and conclusive dispute of fact can best be determined by the hearing of evidence, it may be so determined.
   4. A hearing as aforesaid may be conducted by the Ombudsman or any other person or persons appointed for that purpose by the Ombudsman.
   5. At such a hearing all issues of a procedural or evidentiary nature shall be determined by the Ombudsman or other person or persons so appointed.
6. Appeals
   1. A complainant who or a subscribing member which feels aggrieved by any determination by the Ombudsman may apply to the Ombudsman for leave to appeal against it to a designated Appeal Tribunal.
   2. Such an application shall be made within a period of one calendar month from the date on which the determination that is challenged has been made.
   3. Such leave to appeal shall be granted:
      1. if the determination is against a subscribing member and involves an amount in excess of R250 000 or such other sum as the Council may from time to time determine; or
      2. if the Ombudsman is of the opinion that the determination as such or the particular issue in dispute is of considerable public or industry interest; or
      3. if the Ombudsman is of the opinion that the aggrieved complainant or subscribing member has a reasonable prospect of success in an appeal before a designated Appeal Tribunal.
   4. The member or members of the Appeal Tribunal shall be appointed by the Ombudsman with the consent of all the parties concerned or, failing such consent, with the approval of the Chairman of the Council or, if he or she is unavailable, two members of the Council not connected with the Industry.
   5. The Ombudsman shall prepare the record for consideration by the Appeal Tribunal.
   6. All issues of a procedural or evidentiary nature shall be determined by the Appeal Tribunal itself.
   7. The decision of the Appeal Tribunal shall be final and binding:
      1. if the complainant is the appellant, on all the parties concerned;
      2. if the subscribing member is the appellant, on it.
   8. When the complainant is the appellant:
      1. he or she may be required to deposit such amount as the Ombudsman may consider appropriate into the trust account of an attorney designated by the Ombudsman;
      2. such amount shall be held in trust pending the outcome of the appeal;
      3. if the appeal is, in the view of the Appeal Tribunal substantially successful, such amount shall be refunded to the complainant;
      4. if the appeal is, in the view of the Appeal Tribunal substantially unsuccessful, such amount shall be applied by the Ombudsman to defray, either wholly or in part, the costs incurred by the Ombudsman in connection with the appeal proceedings and to refund any surplus to the complainant.
   9. When the subscribing member is the appellant:
      1. if the appeal is, in the view of the Appeal Tribunal substantially successful, the Ombudsman shall defray the costs incurred by him in connection with the appeal proceedings;
      2. if the appeal is, in the view of the Appeal Tribunal substantially unsuccessful, the subscribing member shall defray the costs incurred by the Ombudsman in connection with the appeal proceedings.
7. Enforcement
   1. If a subscribing member should fail or refuse to comply with a determination made by the Ombudsman:
      1. it shall be given notice by the Ombudsman that it is to comply with such determination within a period of four weeks or such further period as the Ombudsman may determine;
      2. on the failure or refusal by the subscribing member to comply with such notice, the Ombudsman shall report such failure or refusal to the Chairman of the Long-Term Insurance Ombudsman’s Committee (“the Committee”).
   2. The Ombudsman may thereupon:
      1. determine what, if any, further opportunity should be afforded to the subscribing member concerned to make representations as to why the measures described below should not be implemented;
      2. publish, in whatever manner the Ombudsman considers to be appropriate, the fact of such failure or refusal;
      3. suspend or terminate, with the consent of the Chairmen of both the Council and the Committee, the membership of the subscribing member concerned; and, in that event,
      4. publish in whatever manner the Ombudsman considers to be appropriate, the fact of such suspension or termination of such membership.
8. Report
   The Ombudsman shall report publicly on or before 31 May of each year on his or her activities during the previous calendar year.