The Motor Industry Ombudsman’s Role In The Agricultural Sector
The Motor Industry Ombudsman of South Africa (MIOSA) is an ombud scheme accredited in terms of Section 82 of the Consumer Protection Act, 68 of 2008 (CPA).
The accredited Automotive Industry Code includes importers, distributors, manufacturers, retailers, franchisors, franchisees; suppliers, and intermediaries who import, distribute, produce, retail or supply agricultural vehicles or import, distribute, manufacture, retail or supply any completed components and/or accessories to such vehicles, and/or renders a related repair or replacement service to consumers in respect of such vehicles.
The Industry Code therefore provides for an Alternative Dispute Resolution process also within the agricultural sector between consumers and suppliers; and suppliers themselves.
The service offered by the MIOSA is free of charge to the complainant, with the exception of onsite technical inspections, if required. The MIOSA is funded by Industry Participants as provided for in the Industry Code, but Industry Participants have no say in the day-to-day running of the organisation, nor do they have any influence in the recommendations and findings made by the MIOSA. The MIOSA is fair, independent, unbiased and strives to contribute to the continuous improvement of interactions between persons conducting business in the industry and their interactions with consumers.
The MIOSA is at all times guided by the following considerations:
- The Consumer Protection Act No. 68 of 2008;
- The prevailing South African law;
- The South African Automotive Industry Code of Conduct;
- The principles of natural justice;
- Fair, informal, economical and expeditious resolution of disputes;
- Good engineering principles.
Compulsory Alternative Dispute Resolution
Section 69 of the CPA sets out a variety of statutory remedies for the enforcement of rights under the CPA. These include filing a complaint with the National Consumer Commission (NCC), referring a dispute to the Consumer Tribunal (NCT) or approaching an industry Ombudsman.
Section 69(d) provides that “if” a consumer has exhausted these remedies, he or she may then approach a court with jurisdiction to hear the dispute. The issue arose in the case of Joroy 4440 CC v Potgieter and Another NNO 2016 (3) SA 465 (FB).
The High Court confirmed that the section contemplates only “if” the remedies outlined in section 69(a) to section 69(c) of the CPA have been exhausted, will a court then exercise its discretion to hear a matter in which relief in terms of the CPA is sought. The Court made particular reference to the Motor Industry Ombudsman, which has been established under the CPA to adjudicate upon these kinds of disputes.
Referring a dispute under the CPA to the Ombudsman is therefore compulsory before a court may be approached.
The office of the MIOSA make rulings in cases referred to it where parties are unable to reach a mutually acceptable agreement when a dispute arises.
The MIOSA 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 MIOSA will not entertain the resolution of a dispute when legal action has been instituted by either party. In addition, the MIOSA 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 MIOSA has no jurisdiction. The MIOSA will also not make any rulings on product liability nor any financial issues. The MIOSA 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.
How to file a complaint
A dispute must be submitted on the official MIOSA Assistance Request Form and filed with the office of the MIOSA by either completing the online form or downloading a form from the website and sending it via fax, e-mail or pre-paid registered mail to the MIOSA. Once received, the complaint will be forwarded under a covering letter to the other party involved for comment. Once a response has been received, the conciliation process will commence.
Do your homework. Before lodging a complaint, make sure that you understand all the elements of the original purchase/service agreement. This will include the sales agreement, warranty document and service plan, if applicable. Make sure that the product that is the subject of the complaint’s service record is current and that the service schedule has been stamped by the servicing dealer, if applicable.
When a dispute first arises, contact the supplier or service provider and make an appointment to discuss the matter with the relevant person. In terms of the Consumer Protection Act, no. 68 of 2008, the supplier or service provider must assist you in the event of a complaint. Should they not be able to assist, and it is relevant, contact the customer care department of the manufacturer.
Keep emotions in check. Remember, your supplier or service provider is a human being and his/her place of work is his/her space. Approach the matter in a civilized manner. Keep records of all discussions, intentions and promises.
Do not let up. In the unlikely event that you are unsatisfied with the manner in which your complaint is being dealt with, you can approach the MIOSA.
Visit our website on www.miosa.co.za to complete our online assistance request form or download the form, complete it in full detail after reading through carefully and send it, together with all supporting documentation, via email to email@example.com or fax to 086 630 6141 or registered mail to Suite 156, Private Bag x025, Lynnwood Ridge, 0040.