Frequently Asked Questions
What is an Ombudsman?
The name ‘Ombudsman’ (om-budz-man) comes from Swedish and literally means “representative.” In SiSwati, it is similar to Umlamuli. At the most fundamental level, an Ombudsman is one who assists individuals and groups in the resolution of conflicts or concerns.
Ombudsman schemes are independent complaints resolution bodies which are responsible for resolving disputes in a way that is fair and reasonable, without delay and with minimum formality.
The Ombudsman offers its services free of charge, and is thus accessible to individuals who could not afford to pursue their complaints through the courts and is designed to provide protection for the individual where there is a substantial imbalance of power.
How did the Ombudsman come into existence?/ How was the Ombudsman Established?
The Office of the Ombudsman of Financial Services (OFS) was introduced through the promulgation of the FSRA Act 2010 in June 2010 by way of Section 74.
How does the Ombudsman carry out its mandate? / How does the Ombudsman handle complaints?
In terms of Section 74(3) of the FSRA Act, Rules may be made in consultation with industry to set out the manner in which the mandate of the Ombudsman may be carried out. The Draft Rules may be viewed here.
What is the difference between the Ombudsman and the High Court?
The High Court has unlimited jurisdiction in civil and criminal matters, including Constitutional issues and the fundamental human rights and freedoms guaranteed by the Constitution of Swaziland. Its procedures are governed by the civil & criminal procedure rules and has a number of court orders and judgements at its disposal to dispatch and enforce its rulings.
Conversely, the Ombudsman’s jurisdiction as an Alternative Dispute Resolution (ADR) organisation is limited, and can only investigate disputes between complainants and their respective Authorised Financial Services Provider in terms of the FSRA Act 2010. Unlike the High Court, we can only issue determinations which become final and binding upon acceptance of the determinations by the complainant and are therefore not equal to that of an order of the High Court.
Other notable differences are the free, flexible and speedy manner in which the Ombudsman can investigate and dispatch decisions. Taking the Ombudsman route does away with the stringent use of procedural steps and the rules of evidence offered by the High Court and offers an alternative less formal process to try and achieve settlement between the parties.
What is the difference between the Ombudsman and a financial services provider?
The difference between the Ombudsman and a financial services provider (FSP) is that the Ombudsman acts as a mediator in disputes involving authorised FSP’s and individuals and/or other entities. Like a judge, the Ombudsman has to be independent in order to adjudicate in such matters and issue a decision that can withstand scrutiny in any upper court. The Ombudsman may also assist parties to settle their dispute prior to issuing a final determination.
On the other hand, an FSP is any non-bank financial services entity authorised in terms of the FSRA Act, 2010 to provide financial services and sell financial products. As such an FSP stands to be a party in a dispute lodged before the Ombudsman, in most cases as a respondent, although it is possible for an FSP to be a complainant against another FSP.
What is the vision, mission, objectives and functions of the Ombudsman?
·To be a world-class dispute resolution forum for easy access and redress to aggrieved persons in the non-bank financial services sector.”
· To effectively resolve non-bank financial disputes in an affordable, fair, reasonable and speedy manner, with minimum formality.
· To effectively dispose of financial services complaints within the prescribed complaints turnaround time.
·To effectively educate and bring awareness about our role, procedures and jurisdiction of the Ombudsman to stakeholders and the general public, through the use of a mixture of informal and conventional outreach programmes.
·To establish and foster good stakeholder relations through liaising with both internal and external stakeholders.
· To facilitate, conciliate and/or mediate the conclusion of binding settlement agreements.
· To investigate complaints and issue binding determinations.
· To educate stakeholders and the general public about the role, procedures and jurisdiction of the Office.
· To report material, persistent non-compliance with Swaziland’s financial services laws to the relevant regulators.
· To encourage industry to abide by the provisions of their industry codes of conduct.
· To work with other Ombudsmen in the SADC region to share and refer complaints relating to cross-border activities by Financial Services Providers.
How do you lodge a complaint?
A complainant shall first lodge a written complaint with the authorised financial services provider. The rationale for requiring that the complainant first lodges a complaint with a concerned FSP resides in the acknowledgment by our Office that there always exists a relationship between the two which the Ombudsman is very loathe to hurt/harm, but rather is ready to foster through the encouragement for the two to first be afforded the opportunity to resolve the matter.
If a complainant is not satisfied with the response to the complaint lodged with the authorised financial services provider or if no response is received by the complainant within 30 days, the complainant may lodge a complaint with the OFS. Lodgement of the complaint is done through the filling of a Complaint Form.
The complaint form may be downloaded from our website, www.ombudsfs.org.sz; it may be completed at our offices or forwarded by fax, post or email together with any documents and/or information relevant to the complaint. We expect all complaint forms and responses to same to be sworn before a commissioner of oaths.
What are the types of complaint?
The types of Complaints that can be lodged at the Office of the Ombudsman include, but are not limited to:-
· A Retirement / Pension / Provident Fund complaint.
· Short term insurance complaint.
· Long term insurance complaint.
· A Savings and/or Credit complaint.
· Medical aid scheme complaint.
Who can I complain against?
A complaint may be against, a:-
· Central Securities Depository; Collective Investment Scheme; Credit Bureau; Dealer; Representative of a Dealer; Fund Administrator; Insurance Agent; Insurance Broker; Insurer; Investment Advisor; Registered Pawnbroker; Medical Aid Scheme; Medical Aid Scheme Provider; Nominee; SACCO; Retirement Fund; Provident Fund; Securities Exchange; Trustee of a Retirement Fund; Representative of an Investment Advisor; Manager of a Collective Investment Scheme.
Who can complain?
The OFS may consider a complaint between an authorised financial services provider and a complainant who may be:
· An individual (s) including those acting as a trustee, legal or personal individual;
· Any business;
· Corporate trustee of a self-managed retirement fund;
· A club or incorporated association;
· Policy holder of a group life or general insurance. and / or
· A stakeholder as contemplated in Section 2 of the Financial Services Regulatory Act, 2010.
And Section 2 of the Act defines Stakeholder thus-
“Stakeholder” means, in relation to a financial services provider:-
(a) a client, or customer of the financial services provider that uses the products and services of the financial services provider;
(b) an insurer, a policyholder or beneficiary under a policy;
(c) a retirement fund, a member or beneficiary of the fund;
(d) a SACCO, a member; and
(e) a financial services provider in capital markets or investors or prospective investors.
What are the Financial Services Laws listed in the First Schedule to the FSRA Act, 2010?
- The Insurance Act, 2005
- The Lotteries Act, 1963
- The Retirement Funds Act, 2005