DISPUTE RESOLUTION PROCEDURE
By accepting the jurisdiction of the Motor Industry Ombudsman of South Africa (herein after referred to as the MIOSA) to resolve disputes between the automotive industry and consumers (herein after referred to as parties) the following procedures will come into effect when a dispute is declared by a consumer, for conciliation.
1. AMBIT OF MANDATE:
1.2. It should be noted that the MIOSA does not have jurisdiction in respect of any dispute:
1.2.1. which falls within the exclusive mandate of any other Ombudsman;
1.2.2. which has prescribed in terms of the Prescription Act;
18.104.22.168. the period of 3 (three) years commences on the date on which the complainant became aware or ought reasonably to have become aware of such occurrence, whichever occurs first;
1.2.3. which requires the determination of merits and the quantum of damages;
1.2.4. which requires the Ombud to act as arbitrator in the abovementioned circumstances;
1.2.5. where a class action must be determined;
1.2.6. where legal action has been instituted by either party unless such complaint was received by the MIOSA before such legal action was instituted;
1.2.7. where it appears that a criminal offence has been committed by either party, in which event the MIOSA will only deal with the facts outside the ambit of the suspected criminal offence.
1.3. Limits on the MIOSA's jurisdiction:
1.3.1. The MIOSA may not consider a complaint or dispute that relates to a juristic person as a consumer whose asset value or annual turnover equals or exceeds the threshold (limit) being the amount as determined by the Minister by regulation issued in terms of section 5(2) of the CPA, from time to time;
1.3.2. The MIOSA may not make a finding on product liability.
2. PROCEDURE BEFORE THE DECLARATION OF A DISPUTE
2.1. The MIOSA may consider a complaint brought by or on behalf of a consumer as defined in the CPA.
3.1. Any party will be required to respond to a request by the MIOSA within 10 (ten) business days of receiving notification from MIOSA, failing which the party will be barred from providing information, unless the MIOSA in its discretion and considering the reasons for the delay determines otherwise.
3.2. After complaints are lodged with the MIOSA for investigation regarding alleged contraventions of the Code or the CPA, the MIOSA must:
3.2.1. investigate and evaluate alleged complaints arising from the alleged contraventions of the Code or the CPA;
3.2.2. attempt to facilitate a settlement between the parties and where possible, provide a recommendation with regards to such settlement.
3.3. The MIOSA will determine a dispute within 30 (thirty) business days from the date it has received all the necessary documentation/information to enable the MIOSA to make an informed decision regarding the complaint.
4. PROCEDURE WHEN A DISPUTE IS DECLARED
4.1. Any party declaring a dispute confirms that he/she/it has familiarised him/her/it with these procedures as displayed on the website of the MIOSA. In the event of any doubt regarding these procedures, the MIOSA will assist the party concerned to explain and direct such party.
NOTE: No fee is charged by the MIOSA for these services except in those instances as described hereinafter.
4.2. A dispute must be declared in writing as per the prescribed complaint form, Assistance Request Form (ARF) and filed with the office of the MIOSA by either online application, facsimile, email and/or pre-paid registered post. Such declaration will have annexed copies of all documentation referred to in the declaration. The party will thereafter be referred to as the complainant and the other party as the respondent.
4.3. The complainant shall make it clear in the declaration what his/her/its expectations are in respect of the dispute about to be resolved.
4.4. Upon declaring a dispute, both parties consent to the MIOSA or its authorised agent to inspect the relevant item/s being the subject of the dispute. Such an inspection shall take place at such a time and venue as reasonably advised by the MIOSA in writing to the party concerned. Payment in advance for such an inspection shall be for the party, whom the MIOSA, in its sole discretion determines.
4.5. All communication between the parties and MIOSA regarding the dispute shall be in writing in English or Afrikaans.
4.6. The dispute, declaration, together with all annexures will be forwarded to the respondent who shall file his/her/it’s written response thereto supported by all relevant proof with the office of the MIOSA within 10 (ten) business days.
4.7. The MIOSA shall in its own discretion have the right to demand further comments, explanations, copies of documents and/or any further relevant information from any of the parties, which shall be filed with the office of the MIOSA in such a period as specified by the MIOSA and will thereafter be referred to as “the plea”.
4.8. In the event of the MIOSA in its sole discretion deeming it necessary to hear “viva voce” evidence from the party/s concerned, the party/s shall consent to appear at the time and venue advised by the MIOSA to such a party, at least 21 (twenty-one) business days before such a hearing takes place.
4.9. Attending such a hearing will be at each party’s own expense. The hearing will be conducted in English or Afrikaans. If a party is unable to conduct him/her/itself in the languages mentioned above, that such party shall employ the services of an interpreter and the party shall be liable to pay the interpreter for his service. The same principles shall apply to any witness/es the party intends calling at such a hearing. The party will have the right to be represented by a practicing legal representative who will have the right to address or cross examine, or make submissions to the chair at the hearing and/or a person accredited in terms of the CPA.
4.10. All parties undertake to disclose all information relevant to the dispute and not to withhold any information, documents or other material in its possession or which should reasonably be expected to be in his/her/its possession.
4.11. During the period of resolving the dispute a party shall notify the MIOSA in writing should it change address, within 24 hours of such a change, all notices or any documentation sent to a party by the MIOSA will be deemed to have been received by the party within 3 (three) business days of posting by prepaid registered post, fax or email.
4.12. No party shall make any press release or any media announcement of any nature whatsoever from date of dispute declaration until the date when the MIOSA finalises the dispute resolution process and has advised the parties of its decision and recommendations in writing.
4.13. The MIOSA will present its findings within 30 business days after having received all the relevant documents requested, unless the parties agree to a further extension.
4.14. The MIOSA will in all instances assist and explain these rules to any party on request. Any party declaring a dispute shall familiarise him/her/itself with these rules applying to the conciliation procedures before the conciliation process shall commence. It is again confirmed that the office of the MIOSA will assist any party to implement such conciliation procedures if required.
4.15. The MIOSA or its designated officials will not be held liable under any circumstances whatsoever in respect of any decision made or order made in respect of any conciliation procedure save where the MIOSA or its designated official is found to be acting in the following fashion:
4.15.1. Gross negligence.
4.15.2. Corruption is involved.
4.16. The MIOSA will at all times adhere to, with specific reference to the CPA regulations thereto and the Code:
4.16.1. South African Law
4.16.2. Civil procedure of the magistrate’s court
4.16.3. Law of evidence applicable to civil matters
4.16.4. Fairness (equity)
4.16.5. The need to resolve the dispute rapidly
4.16.6. Cost effectiveness
4.16.7. Good engineering practice
4.16.8. Good customer care practices
4.17. Although the powers of the MIOSA are designed to ensure that disputes raised are dealt with justly, expeditiously, economically and where these powers include the ability to decide on matters such as costs etc. all these powers shall be subject to and in accordance with the provisions of the CPA.
5. NOTICE REGARDING PRESCRIPTION
5.1. Take notice that your complaint against the supplier and/or service provider against whom your complaint has been lodged might prescribe within the period of 3 (three) years from the date your complaint originated.
5.2. Take further notice that by lodging your complaint with the office of the MIOSA the period of prescription is not stopped nor extended and that only by issuing summons in a court of law and serving such summons on the service provider or supplier will prescription be stopped. You are therefore forewarned to make the necessary arrangements within the time limits as specified in terms of the Prescription Act to protect yourself from forfeiting the cause of action you might have against the supplier of goods or service provider. The office of the MIOSA will have no responsibility whatsoever to remind you of this while in the process of resolving your dispute.
NOTE: All proceedings shall be stayed during the period 15 December to 15 January of each year.