Complaints and Disputes.docx

Complaints and Disputes ----------------------- ### Complaints **Client complaints** For the purposes of Section 5 of the rules, a client complaint is defined as any complaint in relation to the provision of regulated services, in which the client alleges that he has suffered, or is likely to suf...

Complaints and Disputes ----------------------- ### Complaints **Client complaints** For the purposes of Section 5 of the rules, a client complaint is defined as any complaint in relation to the provision of regulated services, in which the client alleges that he has suffered, or is likely to suffer, financial prejudice as a result of the trading member -- - contravening or failing to comply with any instruction given by the client, or any agreement or mandate entered into with the client; - contravening or failing to comply with the rules and the directives; - acting dishonestly, negligently, or recklessly; or - treating the client unreasonably or unfairly. Every trading member must establish and maintain appropriate procedures for the handling of client complaints. **Internal complaint handling procedures** A trading member's internal complaint handling procedures must provide for -- - information regarding the JSE Ombud Scheme to be provided to a client at the time that the member notifies the client of the member's decision, which information must include the existence of the Scheme, the Scheme's contact details, and the procedure for lodging an unresolved complaint with the Scheme; - the receipt of oral or written complaints; - the appropriate investigation of complaints; - an appropriate decision-making process in relation to the response to a client complaint; - notification of the decision to the client; and - the recording of complaints. A trading member's internal complaint handling procedures must be designed to ensure that -- - all complaints are handled fairly, effectively, and promptly; - recurring or systemic problems are identified, investigated, and remedied; - the number of unresolved complaints to be referred to the JSE in terms of the rule 5.60 are minimised; - complaints are investigated by an employee of sufficient competence who, where appropriate, was not directly involved in the matter which is the subject of a complaint; - the employee responsible for the resolution of complaints has the necessary authority to resolve complaints or has ready access to an employee who has the necessary authority; and - relevant employees are aware of the trading member's internal complaint handling - procedures and comply with them. **Timeous response to complaints** A trading member must respond to a client complaint within 4 weeks of receiving the complaint or, within such period, provide the complainant with an appropriate explanation as to why the trading member is not, at that time, in a position to respond and must indicate by when the trading member will respond. **Redress** - Where a trading member decides that redress in the form of compensation is appropriate in resolving a complaint, the trading member must provide the complainant with fair compensation and must comply with any offer of compensation made by it which the complainant accepts. - Where a trading member decides that redress in a form other than compensation is appropriate in resolving a complaint, the trading member must provide the redress as soon as practicable. **Recording of complaints** A trading member must maintain a record of all client complaints. The record of each complaint must include- - the identity of the complainant; - the substance of the complaint; and - all correspondence in relation to the complaint. The records must be retained by the trading member for a period of 5 years from the date of the receipt of the complaint. **Unresolved client complaints** - A client complaint will be deemed to be unresolved if the complainant is not satisfied with the resolution of the complaint proposed by the trading member. - A complainant may lodge an unresolved complaint, in writing, with the Director: Market Regulation giving full particulars of the matter concerned. - In order for an unresolved complaint to be considered by the JSE Market Regulation Division, the complaint must be lodged with the Director: Market Regulation within 4 weeks of the receipt by the complainant of the trading member's response and within 6 months of the conduct by the trading member giving rise to the complaint. - An unresolved complaint which is lodged subsequent to the period will be considered, provided that failure to lodge the complaint within the relevant period was through no fault of the client. - The JSE Market Regulation Division may request the trading member and the complainant to provide copies of all relevant correspondence and documentation that is required to review the complaint. - The JSE Market Regulation Division will endeavor to facilitate a resolution of the complaint between the trading member and the complainant. - If the JSE Market Regulation Division is unable to facilitate a resolution of the complaint within 4 weeks of lodging of the complaint with it, the Director: Market Regulation will refer the unresolved complaint to the Company Secretary of the JSE to be dealt with in terms of the dispute resolution rules. ### Disputes **Applicability of dispute resolution rules** "The dispute resolution rules" are intended to facilitate the equitable and expeditious settlement of disputes that -- - a client has with a trading member, in respect of an unresolved complaint; - a trading member has with another trading member, in respect of transactions in IRC securities; or - a trading member has with a client, in respect of transactions in IRC securities. The dispute resolution rules only apply -- - where the amount in dispute is in excess of R2 000; - where the dispute is not the subject of existing litigation; - in the case of a dispute that a client has with a trading member, where the amount in dispute either does not exceed R500 000 or, where the amount in dispute exceeds R500 000, if the consent of both parties to proceed has been obtained; - in the case of a dispute that a trading member has with another trading member, and the trading members are able to evidence to the satisfaction of the Director: Market Regulation that reasonable endeavours have been made by the said trading members to resolve the dispute, if the consent of both parties to proceed has been obtained; - in the case of a dispute that a trading member has with a client if the consent of the client to proceed has been obtained. **Reporting of a dispute** - An unresolved client complaint that the JSE Market Regulation Division is not able to resolve will be reported as a dispute by the Director: Market Regulation to the Company Secretary of the JSE if the client elects to pursue the dispute resolution process. - A dispute between two trading members in respect of transactions in IRC securities must be reported, in writing, by either trading member, to the Company Secretary of the JSE, within 1 week of the circumstance giving rise to the dispute having arisen. - A dispute that a trading member has with a client in respect of transactions in IRC securities must be reported, in writing, by the trading member, in writing to the Company Secretary of the JSE, within 6 months of the circumstance giving rise to the dispute having arisen. - The Company Secretary of the JSE may, at any time, request any of the parties to a dispute to furnish him with such further information relating to the dispute as may be required. **Declaration of a dispute** A dispute reported will, having been met, be declared a dispute by the Company Secretary and will be referred by the Company Secretary to a duly appointed ombud for consideration. **Consideration by an ombud** - The Ombud Committee will appoint an ombud to consider a dispute, who is a retired judge of the High Court of South Africa or a Senior Counsel.20 - Within 3 weeks of the dispute having been referred to the ombud for consideration, the claimant must set out the subject matter of the claim in a written statement, including all the material facts, and furnish this statement, along with all relevant documentation upon which the claim is based, to the ombud. - The ombud may require the claimant to expand upon his statement of claim or provide further evidence or particulars as he deems necessary within such reasonable time as is specified by the ombud. - The other party to the dispute, hereafter referred to as the defendant, must be provided with a copy of the written statement of claim by the ombud. The defendant must furnish the ombud with its written response to the statement of claim within 3 weeks of having received such. In addition to the defendant\'s written response, the defendant must attach thereto all other evidence relating to the dispute. - The ombud may require the defendant to expand upon its response or provide further evidence or particulars as he deems necessary within such reasonable time as specified by the ombud and may require the claimant to provide a written reply to the defendant\'s response within such reasonable time as he may specify. - The ombud may at its discretion decide that a number of disputes based on similar occurrences or similar facts be consolidated and treated as a single dispute. - After ascertaining the party's availability, the ombud will furnish the parties with written notification of the date on which the dispute will be heard. - The ombud may decide regarding any issues relating to the dispute or consider the dispute on the basis of the documents submitted without the necessity of a hearing. - The dispute resolution proceedings will be conducted without legal representation of any of the parties, unless the ombud in his sole discretion decides otherwise. - The ombud, in reaching a decision, may consult with any third party regarding any issue relating to the dispute. The ombud has the discretion to call upon any third party to participate in the dispute resolution proceedings. - The ombud must apply principles of equity, where appropriate, when dealing with a dispute. - The ombud will, after having considered the information as presented to him by the parties and such other information as he may request, make his decision within 3 weeks of having considered the dispute. The ombud must, at the request of any party to the dispute, provide written reasons for his decision. - The ombud's decision will be furnished to the parties in writing. - The ombud is not obliged to provide a ruling on a dispute if he is of the view that the dispute is of such a complex nature that it cannot be resolved expeditiously by means of the dispute resolution process and can only be properly considered by a court of law. - Any decision made must be complied with by the party against whom the decision is made within seven days of the decision having been made by the ombud. - Unless the JSE, the ombud and the parties to the dispute agree otherwise, the identity of the parties, the nature of the evidence and the details of the ombud's deliberations and finding, and all other information pertaining to the proceedings will be kept confidential by all parties thereto, unless disclosure by the JSE is required by law. - The ombud's engagement may be terminated by the Ombud Committee. **Costs of the proceedings** The parties to any dispute resolution proceeding in terms of rule 5.100 may be required to pay to the JSE, before the proceedings commence, such amount as the JSE may determine as a deposit to cover a portion of the costs of the proceedings. The ombud may, as part of his award and as he deems appropriate in the circumstances, make an order on costs which may include an order against the unsuccessful party for payment of all the costs of the proceedings.