PROCEDURE - DISPUTE RESOLUTION


DISPUTE RESOLUTION PROCEDURE

 

By accepting the jurisdiction of the Motor Industry Ombudsman of South Africa to resolve disputes between contracting parties, the following procedures will come into full force and effect when a dispute is declared by any of the contracting parties, for adjudication.

 

1.       AMBIT OF MANDATE:

 

The ambit of the Motor Industry Ombudsman of South Africa’s (herein after referred to as the MIO) mandate to resolve disputes, is confined to the boundaries of the terms and conditions of the agreement between the contracting parties, as well as South African Law.

 

The MIO will not entertain the resolution of a dispute which falls within the mandate of any other Ombud whether regulated or recognised by its industry.

 

The MIO will not entertain the resolution of a dispute when legal action has been instituted by either party. In connection with the transaction which forms part of the complain when “prima facie” it appears that a criminal offence has been committed by either party or where it appears from any statute of the Republic of South Africa (RSA) that the MIO has no jurisdiction.

 

2.       PROCEDURE BEFORE THE DECLARATION OF A DISPUTE:

 

(a)                 In the event of a dispute arising between the contracting parties, the parties shall attempt to amicably settle the dispute through negotiations between themselves.

 

(b)                 The parties referred to in paragraph (a) above shall confirm the contents of their negotiations in writing to each other within 24 hours after such negotiations had taken place by either facsimile, E-mail or pre-paid registered post and shall retain proof of postage or transmission thereof.

 

(c)                 In the event of the dispute not being resolved between the parties or in the event of a party not honouring its undertaking/s within the time frame specified through negotiations, the aggrieved party shall have the right to lodge a dispute in writing, with the MIO.

 

(d)                 In the event of the MIO not being able to successfully mediate the dispute between the parties, the aggrieved party will have the right, after having been notified in writing by the MIO that the mediation has been unsuccessful, to move to the next step as described in clause 3.

 

(e)                 Declaring a dispute must be done within a period of 14 days from the date when the parties could not reach an amicable settlement or if a party refused or neglected to honour his/her/its undertaking/s in terms of the settlement.

 

 

3.       PROCEDURE WHEN A DISPUTE IS DECLARED:

 

(i)                   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 MIO. In the event of any doubt regarding these procedures the MIO will assist the party concerned to explain and direct such party.

 

NOTE: No fee is charged by the MIO for these services except in those instances as described hereinafter.

 

(ii)                 A dispute must be declared in writing and filed with the office of the MIO by either facsimile, E-mail 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.

 

(iii)                The complainant shall make it clear in the declaration what his/her/its expectations are in respect of the dispute about to be resolved.

 

(iv)                Upon declaring a dispute, both contracting parties consent to the MIO 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 MIO in writing to the party concerned.

 

(v)                  All communication between the parties and MIO regarding the dispute shall be in writing in English or Afrikaans. (See clause xvii)

 

(vi)                The dispute declaration together with all annexures will be forwarded to the respondent who shall file his/her/its written response thereto supported by all relevant proof with the office of the MIO within 14 days.

 

(vii)               The MIO 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 MIO in such a period as specified by the MIO and will thereafter be referred to as “the plea”.

 

(viii)             In the event of the MIO 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 MIO to such a party, at least 21 days before such a hearing takes place.

 

(ix)                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, the 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 accreditation in terms of the CPA.

 

(x)                  The parties may agree to the rules of adjudication, however and in the event of the parties not being able to agree to such rules, the MIO will set the rules of adjudication. The rules of adjudication will be set by the MIO taking into account the level of education of each party as well as the proficiency of each party in relating to the dispute resolution process. Such proceedings may be recorded at the sole discretion of the MIO at the request of a party, a copy of such recording will only be made available upon receipt of the tendered price determined by the MIO.

 

(xi)                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.

 

(xii)               During the period of resolving the dispute a party shall notify the MIO in writing should it change address, within 24 hours of such a change, all notices or any documentation sent to a party by the MIO will be deemed to have been received by the party with in 3 days of posting by prepaid registered post, faxing or email.

 

(xiii)             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 MIO finalises the dispute resolution process and has advised the parties of its decision and recommendations in writing.

 

(xiv)              Should any party fail to abide by the rules set by the MIO or as agreed to by the parties and in the view of the MIO such default compromises the adjudication process the MIO can:

 

  

(a)    Issue a final written demand to such a party to remedy its default within ten (10) days from date of such a notice,

 

and:

 

(b)     Warn the party at the same time that its default, omission or neglect can result in the party being liable for a punitive order of costs on the scale of attorney and client calculated on the scale of the Uniform Rules of Court, irrespective of whether it succeeds with the adjudication or not.

 

and:

 

(c)   That the MIO shall proceed with the completion of its mandate without any further notice to such a party and if deemed necessary notify the NCC of the circumstances.

 

(xv)               The MIO will present its decision within thirty (30) days after finalisation of the proceedings unless the parties agree to a further extension. Unless otherwise agreed to by the parties the MIO shall summons the parties to appear and on such a determined date deliver its award in writing to the parties or their representatives, whereafter it shall be deemed that the award was properly published to each party.

 

(xvi)               An appeal against the final decision of the MIO must be lodged in writing within 10 days from date of such decision, supported by a detailed argument in writing setting out the grounds for the appeal. A copy thereof must at the same time be served on the other party and proof of such service must be included for the attention of the MIO.

 

(xviii)        The MIO will in writing advise such a party to either lodge the appeal with the NCT or Provincial consumer court and advice the aggrieved party as to the further conditions the MIO will assist him/her with.

 

(xviii)           The Motor Industry Ombudsman of South Africa or his nominee, who must be employed by the MIO, shall act as adjudicator.

 

 (xx)               The MIO at its sole discretion may from time to time amend and or amplify or delete some or all of these procedures. Please note, that in such an event, all agreements signed before such amendment, amplification and or deletion shall not be affected.

 

(xxi)              The MIO 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 adjudication procedures before the adjudication process shall commence. It is again confirmed that the office of the MIO will assist any party to implement such arbitration procedures if required.

 

(xxii)            The MIO 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 adjudication procedure save where the MIO or its designated official is found to be acting in the following fashion: 
(a) Gross negligence.    

                      (b) Not having acted justly and fairly when adjudicating a case.

                      (c) Corruption is involved.

 

(xxiii)           The MIO shall in its sole discretion decide on any matters utilised in the preparation of a case for a hearing after which the parties will be informed of its decision and directives accordingly.

 

(xxiv)           The MIO will at all times adhere to; with specific reference to the CPA regulations there to and approved industry code:

(a)   South African Law

 

(b)   Civil procedure of the magistrates court

 

(c)    Law of evidence applicable to civil matters

 

(d)   Fairness (equity)

 

(e)    The need to resolve the dispute rapidly

 

(f)    Cost effectiveness

 

(g)   Good engineering practice

 

(h)    Good customer care practices

 

(xxv)             In addition the MIO will in its sole discretion decide on the following:

(a)    The date of the hearing

(b)    The venue of the hearing

(c)     All matters that has reference to any aspect of the hearing

(d)    Whether oral evidence will be accepted or whether the evidence will be restricted to written presentations or any other procedures that are deemed appropriate by the MIO.

  

(xxvi)           Although the powers of the MIO 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 Consumer Protection Act of 2008.

 

(xxvii)          The MIO may at the request of a party appoint a recognised legal cost consultant to tax any bill of cost in respect of an award made. Such a cost consultant shall tax the bill of cost in accordance with the provisions made in Rule 70 of the High Court of the Republic of South Africa. The MIO shall indicate in its award which party shall be responsible for payment of the cost consultant’s fee and such payment amount will thereafter become part of the award.   

 

 

NOTE: All proceedings shall be stayed during the period 15 December to 15 January of each year.     

 

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