Financial Services Ombud Schemes Act, 2004 (Act No. 37 of 2004)18. Prohibition and exemptions |
| (1) | Notwithstanding any other law, no financial institution may— |
| (a) | participate in a scheme; or |
| (b) | require or invite any client to submit a complaint in terms of any such scheme, unless the scheme is a recognised scheme or the financial institution is exempted from compliance in terms of subsection (4). |
| (2) | Any participation, requirement or invitation in contravention of subsection (1) is null and void. |
| (3) | Despite subsection (1), any scheme existing and in operation immediately before this section came into operation may continue in accordance with the provisions of that scheme until the expiry of a period of 18 months from the date on which this section came into operation. |
| (4) |
| (a) | The Minister may, after consultation with the board and the Council, exempt any financial institution or category of financial institutions by notice in the Gazette from any provision of this Act relating to the resolution of a complaint by an ombud, if— |
| (i) | the resolution of a complaint against the financial institution or category of financial institutions by an ombud is already partially or wholly regulated by any other law; or |
| (ii) | the granting of the exemption will not conflict with the public interest, prejudice the interests of clients or frustrate the achievement of the objects of this Act. |
| (b) | The Minister— |
| (i) | having regard to the factors mentioned in paragraph (a), may attach to any exemption so granted reasonable requirements or impose reasonable conditions with which the financial institution or category of financial institutions must comply either before or after the effective date of the exemption in the manner and during the period specified by the Minister; and |
| (ii) | must determine the period for which the exemption will be valid. |
| (c) | Subject to paragraph (d), a conditional exemption lapses whenever the financial institution or a financial institution in the category in question contravenes or fails to comply with any such requirement or condition. |
| (d) | The Minister may on application condone any such contravention or failure and determine reasonable requirements or conditions with which the financial institution must comply on or after resumption of the exemption as if such requirements or conditions had been attached or imposed on the first granting of the exemption. |
| (5) |
| (a) | No financial institution may use a name or description in respect of any internal complaint resolution arrangement referred to in paragraph (b) of the definition of “scheme” in section 1, which represents or constitutes a “scheme” as so defined, unless the financial institution— |
| (i) | has been authorised by the Council to do so; and |
| (ii) | complies with the conditions determined by the Council. |
| (b) | A financial institution that contravenes any provision of paragraph (a) is guilty of an offence and on conviction liable to a fine not exceeding the prescribed amount. |
| (c) | Financial institutions not in compliance with this section, must be compliant within 18 months from the date fixed by the President in terms of section 20. |