CR96 Dispute of facts not resolved
Dispute of facts not resolved – parties agree to a hearing of evidence in terms of Rule 5.3
The complainant had through an intermediary, A, who was both his friend and a consultant with insurance company X, been introduced to an independent broker, B. Although the complainant had already made an investment with company X the independent broker B had been made aware of a new investment product with company Y. No documentation describing the new product was available but, a consultant of company Y was prepared to explain to the complainant and to independent broker B full details of the new investment product. The complainant was impressed by the explanation by the consultant and he was able, without any losses, to cancel the investment with company X and to place the investment with company Y. The main motivating factor which persuaded the complainant to invest in company Y’s product was, as he understood it, that both the capital and the growth were guaranteed. When the policy matured, however, it appeared that only the capital had been guaranteed and not the growth. The complainant raised the discrepancy with the company Y who alleged that the original contract was correctly entered into and that no incorrect oral information had been furnished by the consultant of company Y.
We were of the opinion that there was a clear dispute of fact, which could not be resolved on the documentation presented. Since our rules prescribe that the Ombudsman shall resolve material disputes of fact on a balance of probabilities and with due regard to the incidence of the onus we were further of the opinion that this was a case where the Ombudsman, with the consent of the parties concerned, should, in terms of rule 5.3, convene a hearing of evidence in order to resolve the dispute of fact. The parties agreed to such a hearing.
All relevant parties to the dispute were present at the hearing and were required to present all documents exchanged between them and any further documents on which they wished to rely. Copies of these documents were to be made available prior to the date of hearing. The proceedings were by agreement to be treated as informal and privileged i.e. not to be disclosed in a court should litigation thereafter ensue between the parties. Evidence was not given under oath and the complainant, followed by his or her other witnesses, was asked firstly to give his version of the events. The other side was thereafter allowed to ask questions and was given similar opportunities to give evidence on the same basis. Legal representation was not prohibited but also not encouraged. The guiding principle was that the hearing should be fair to both parties.
Following the presentation of evidence the matter was settled by company Y paying to the complainant an amount of R100 000 and the independent broker B paying to the complainant the amount of R45 000.