The Motor Industry Ombudsman of South Africa (MIOSA) and the South African Automotive Industry Code of Conduct (Code) was accredited by the Department of Trade and Industry on the 3rd October 2014. The Code was published in the Government Gazette on Friday, 17 October 2014, Notice 817, Government Gazette No. 38107(3) and as such has become a Regulation of the Consumer Protection Act No. 68 of 2008 (CPA) and contributions payable to the MIOSA are now a legal requirement from all automotive industry participants.
Kindly note that the MIOSA is not an organisation with voluntary memberships. As part of the automotive and related industries, all participants within the automotive and related industries (industry participant) are obliged by the statutory measures to pay a contribution to the MIOSA.
Therefore, every industry participant is liable for the contribution outstanding since accreditation in 2015 or when the automotive or related industry participant started trading within the automotive and related industries. Should such businesses not register their businesses information and pay the legally required contribution, those businesses will be in contravention of the CPA, Section 82(8) and Section 108(1).
Schedule 5 of the South African Automotive Industry Code of Conduct states:
Funding from date of accreditation:
From the first anniversary of the date of accreditation, the MIOSA will be funded as follows:
The OEM's and Importers shall be liable to contribute 20% of the approved budget and each individual OEM or Importer's contribution shall be calculated by dividing 20% of the approved budget by the total number of entities who directly import or manufacture Goods.
The retailers shall be liable to contribute 80% of the approved budget and each individual retailer's contribution shall be calculated by dividing 80% of the approved budget by the total number of retail premises from which business is being conducted in the Automotive Industry.
The South African Automotive Industry Code of Conduct (Code) is an industry code and it applies to the entire automotive industry as defined in the Code (Part A, Section 1), irrespective of whether such persons are members of any automotive industry association. The Code relates to the conduct for the supply of goods and services by the Automotive Industry and consumers within the Republic of South Africa and focuses on consumer protection, supplier guidance and fair business practices.
The MIOSA is only able to furnish invoices to known industry participants. If an industry participant neglects or refuses to register and is identified by a MIOSA inspector, invoices will be created and forwarded to such participants to pay all arrears contributions or since the business started trading within the automotive and related industries.
Section 13, subsection 4 of the South African Automotive Industry Code of Conduct states:
"The MIOSA: 13.4 will be responsible to collect all contributions due and owing by the members of the Automotive Industry;"
The Automotive Industry as defined in the South Africa Automotive Industry Code of Conduct (Part A, Section 1) means:
"Importers, Distributors, manufacturers, retailers, franchisors, franchisees, suppliers and intermediaries who import, distribute, produce retail or supply passenger, recreational, agricultural, industrial or commercial vehicles including but not limited to passenger vehicles, trucks, motor cycles, quad cycles or whether self-propelled or not an internal combustion propelled engine for a boat, or distribute, retail or supply any completed components and/or accessories to such vehicles, and or renders a related repair or replacement service to consumer in respect of such vehicles, and trailers and anyone who modifies, converts or adapt vehicles."
If your company falls outside the above definition, then you do not fall within the mandate of the Motor Industry Ombudsman of South Africa.
Section 5 of the South African Automotive Industry Code of Conduct (Code) states:
NON-COMPLIANCE WITH THE CODE
Non-compliance with the Code is prohibited by Section 82(8) of the Consumer Protection Act No. 68 of 2008.
Where there is any non-compliance with the Code by suppliers within the Automotive Industry and such non-compliance is brought to the attention of the MIOSA, the matter will be investigated and dealt with in accordance with the MIOSA procedures.
The MIOSA may, in addition to any step taken in terms of its procedures, refer such non-compliance to the National Consumer Commission.
Section 82(8) of the Consumer Protection Act No. 68 of 2008 states:
"(8) A supplier must not, in the ordinary course of business, contravene an applicable Industry code."
Section 108 (1) of the Consumer Protection Act No. 68 of 2008 states:
"(1) It is an offence to hinder, oppose, obstruct or unduly influence any person who is exercising a power or performing a duty delegated, conferred or imposed on that person by this Act."
As per the Section 82 of the Consumer Protection Act No. 68 of 2008 (CPA) and the South African Automotive Industry Code of Conduct (which is a regulation of the CPA), all industry participants which form part of the automotive and related industries supply chain and provide a service to consumers must pay the contribution towards the MIOSA.
All major industry participants drafted the Code before it was submitted to the National Consumer Commission (NCC).
Major automotive and related industry associations as well as the majority of industry participants were in fact part of the drafting committee.
Before the draft Code was submitted to the NCC the industry associations funded advertisements in national publications and the government gazette for public comments.
All comments received were entertained by the drafting committee. Some associations held road shows to inform their members regarding the implications of the proposed Code.
Many companies commenced with lectures to familiarise their staff members with the proposed Code.
The NCC decided to again advertise the Code in national publications and the government gazette for public comment before it was submitted to the Department of Trade and Industry (DTI). Comments received were again entertained.
Once submitted to the DTI, the DTI published the proposed Code again for public comment in the government gazette.
This made the Code one of the most published pieces of legislation ever.