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PROCEDURE - DISPUTE RESOLUTION |
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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. 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 the contracting parties entered into, excluding issues which
are of an indirect or consequential nature flowing from such a contract. 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 addition, the MIO will not entertain the resolution of a dispute
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. The MIO will not entertain the
resolution of a dispute when a complaint is lodged on the grounds of a
delict, claiming damages from the other party. 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 declare a dispute
in writing, addressed to 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 MIO shall employ the services of an
interpreter and the party shall pay the amount demanded by the MIO, at least
ten (10) days before such a hearing takes place, to the MIO. 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 suitable person
who will have the right to address or cross examine, or make submissions to
the chair at the hearing. (x)
The parties may agree
to the rules of arbitration, however and in the event of the parties not
being able to agree to such rules, the MIO will set the rules of arbitration.
The rules of arbitration 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. (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 arbitration 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 arbitration or
not. and: (c) That
the MIO shall proceed with the completion of its mandate. (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. The other party shall within 10 days from receipt thereof and in writing
either submit his/her/its response to the appeal or indicate in writing that
there is no response; whereafter the MIO will within a period of 90 days
(ninety days) advise both parties in writing as to the outcome of the appeal.
(xvii) Should any party wish to conduct
the matter in any other language than English or Afrikaans, such a party will
have the right to do so. Such a party shall however in advance pay all such
fees necessary in respect of a translator appointed by the MIO at its sole discretion.
All proceedings will be stayed for the whole period required by the
translator to complete the translation/s. (xviii) The parties hereto agree that the
purchase agreement, whereby both parties agreed to the jurisdiction of the
Motor industry Ombudsman of South Africa in the event of a dispute arising
between the parties, shall be considered to be “the arbitration agreement”.
The Motor Industry Ombudsman of South Africa or his nominee, who must be
employed by the MIO, shall act as the arbitrator. (xix)
In all proceedings,
the requirements of Arbitration act no: 42 of 1965 (as amended) will apply. (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)
Please note that the
full detailed version of the procedural rules applying to any arbitration
will appear on the MIO website www.miosa.co.za or a copy thereof can be
purchased from the MIO at a price predetermined by the MIO. 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 arbitration procedures before the arbitration 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 arbitration procedure save
where the MIO or its designated official is found to be acting in the
following fashion:
(b) Not having acted justly and fairly when arbitrating 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 be guided
by the following considerations: (a) The arbitration act (b) Fairness (equity) (c) The need to resolve the dispute rapidly (d) Cost effectiveness (e) Good engineering practice (f) 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 Arbitration Act of 1965. (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 NOTE: All proceedings shall be stayed during the period 15 December to
15 January of each year.
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©
copyright Motoring Industry Ombudsman of South Africa 2004. All rights
reserved. |
(29.6ms) |