An assessment, recommendation and determination are all given in writing and state what the bank should do to resolve your complaint. If we do not believe that the bank can be held liable, we will say so. The rules prescribing when a recommendation can be made are found in the Terms of Reference and the Operational Procedures.

Assessment
As soon as a complaint has become a dispute, a short assessment may be made without further investigation of the merit of the matter suggesting to the parties how the matter may be settled. If both parties accept the assessment, the matter is settled. If either party disagrees, further representations may be made and the dispute will be investigated further.

Recommendations (provisional and final)
A provisional recommendation may be made, indicating how the matter should be resolved. If either party does not accept the provisional recommendation, further representations may also be made. A final recommendation will then be made. A recommendation is not binding on a bank, but if a bank does not accept the recommendation, a binding determination may be made under certain circumstances or if the requirements of a determination are not met, the Ombudsman may publish the recommendation in the media. A bank would therefore not accept a recommendation lightly.

Determinations
A determination is binding on both parties, subject to the right of review. A determination is based on the Code of Banking Practice or the law and can be made where:

  • there is no dispute of fact;

  • the amount of the dispute exceeds R10 000-00;

  • the complainant has agreed to be bound by it, subject to the right of review;

  • the Ombudsman is satisfied that the party who wants the determination has put forward valid grounds.
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    Complainants should note the following principles:

    Dispute of fact
    The Ombudsman cannot make a determination or recommendation if a dispute exists about the material facts of a complaint. (See clause 1.3 (m)(iv) of the Terms of Reference.)

    For example: a complainant says that she informed the bank that a cheque was to be stopped and the bank failed to stop it, causing her loss. The bank denies ever having received this instruction and therefore says it is not liable for any loss. Unless it can be established with reasonable certainty that the customer gave the instruction to the bank, we can take no decision as to whether the bank was at fault.

    Legal precedent and court proceedings
    Recommendations will not set legal precedent and are inadmissible in a court of law. Determinations can be made an order of court.

    Full and final settlement
    If a complainant accepts an amount from a bank in settlement of a complaint whether as the result of negotiation, a recommendation or a determination, the amount received will be in full and final settlement of the matter. The complainant will not be able to claim any further amount from the bank for the same complaint.