The role of CGSO in CPA Dispute Resolution N Melville

The role of Ombudsman in Dispute Resolution What is an Ombudsman

DEFINITION A government official, especially in Scandinavian countries, who investigates citizens' complaints against the government or its functionaries. An independent, impartial public official with authority and responsibility to receive, investigate or informally address complaints …, and, when appropriate, make findings and recommendations, and publish reports.. What is an Ombudsman? African Ombudsman Association Standards

ORIGIN Originally in early Germanic tribes ombudsman recovered compensation Old Norse word umbodhsmadhr: "trusty manager” 1809, Swedish king taken prisoner by the Russian army. Parliament created Riksdagens Justitieombudsman (the Parliamentary Commissioner for Justice). What is an Ombudsman?

Traditional forms dispute resolution Ethiopians – ‘Emba Tebaki’ (‘Keeper of the People's Tears') now = ombudsman Zulu culture of South Africa ‘Lomxazululi' (‘Solver of Problems‘) also = ombudsman

Rather slow start Finland (1919), Denmark (1955) and Norway (1962): Second half of the 20th century ombudsman concept caught on internationally and spread worldwide Ombudsmen now present at a national level of government in approximately 120 countries (of which 27 are in Africa) What is an Ombudsman? DEVELOPMENT

OMBUDSMANIA What is an Ombudsman? Aged Care ombudsman Airport Ombudsman Anti- discrimination Ombudsman Business Ombudsman Children's Ombudsman Citizens Advocate Citizenship & Immigration Services Ombudsman Culinary Institute of America Ombudsman Dental Ombudsman Estate Agents Ombudsman Electricity Supply Ombudsman Funeral Services Ombudsman Housing Ombudsman Service Legal Service Complaints Commission Media Ombudsman Medical Ombudsman Milk Ombudsman Police Ombudsman Privacy Ombudsman Public Transport Ombudsman Sectional Title Ombudsman Toxic Substances & Disease Registry Ombudsman Wireless Application Service Providers’ Association Ombudsman

Ombudsman concept in the private sector in South Africa in the late-1980s: Creation of the Long-term (life) (1985) & Short-term insurance ombudsmen (1989) The Banking Ombudsman, first established in 1997, briefly operated under the politically correct name Office of the Banking Adjudicator. What is an Ombudsman? South Africa

"Ombudsman" should only be used if six key criteria are met: – independence of the Ombudsman from those the Ombudsman has the power to investigate – accessibility – fairness – public accountability and transparency – effectiveness – impartiality What is an Ombudsman? Characteristics

The role of Ombudsman in Dispute Resolution What is an Ombudsman The CPA Accredited Ombudsman—Role and Function

The role of Ombudsman in Dispute Resolution The CPA Accredited Ombudsman—Role and Function

Complaint options Protection of Consumer Rights and Consumer’s Voice TRIBUNAL COURT CONSUMER COURT/ PROTECTOR INDUSTRY / OMBUD NATIONAL CONSUMER COMMISSION INTERNALCONSUMER BODY MEDIA INDUSTRY BODY ADR AGENT EQUALITY COURT

TRIBUNAL COMMISSION: APPLICATION FOR ADMINISTRATIVE FINE COURT OMBUD COMMISSION COMPLAINANT FINDING OF LIABILITY SUPPLIER: NO OMBUD CONSUMER COURT SUPPLIER: UNDER OMBUD ADR AGENT * HIGH COURT APPEAL/ REVIEW HIGH COURT APPEAL/ REVIEW CONSENT ORDER AWARD DAMAGES CONSUMER: NON REFERRAL/ LEAVE OF THE TRIBUNAL

The Code

S 82(2) The Commission, acting on its own initiative, or in response to a proposal from persons conducting business within a particular industry, may recommend a proposed industry code to the Minister

The Code AFTER (a) publishing it for public comment; (b) considering any public submissions; (c) consulting with— (i) persons conducting business within the relevant industry; and (ii) relevant accredited consumer protection groups

The Code All suppliers in the consumer goods and services industry, including retailers, suppliers, wholesalers, distributors, manufacturers, producers, importers, intermediaries, logistics and supply chain agents UNLESS they are regulated elsewhere by a code prescribed by the Minister and/ or a complaint falls within the jurisdiction of an Ombud with jurisdiction, or an industry Ombud Code applies to:

The Code Participate in the scheme Establish an internal complaints-handling process Advise customers that bound by Code Provide details of how complainants may lodge complaints against you Provide consumers with the contact details of Consumer Goods and Services Ombud Ensure that relevant staff members have suitable working knowledge of Act, Code and CGGSO’s Procedures Obligations

The Code Many transactions under CPA are accompanied by credit agreements which are covered by the National Credit Act (NCA). This causes confusion as to which regulatory system complaints fall under: the National Consumer Commission/ the Consumer Goods & Services Ombud or the National Credit Regulator / Credit Ombud OVERLAP CPA

The Code Section 5(2)(d) of the Consumer Protection Act provides: This Act does not apply to any transaction— (d) that constitutes a credit agreement under the National Credit Act, but the goods or services that are the subject of the credit agreement are not excluded from the ambit of this Act; Obligations

Quality of Goods Goods must be: – of good quality, – in good working order – free of defects, – be capable of being used for a reasonable period of time, – reasonably suitable for the specific purpose for which a consumer wishes to use them. GOODS & SERVICES DELIVERY OF GOODS & SERVICES Important that the sales person establishes what the customer wants to use them for

Overlap GOODS & SERVICES DELIVERY OF GOODS & SERVICES Problem Not all of the sections of the CPA relate to either goods, services or the agreement. In fact, many of the important safeguards created for consumers relate to the marketing, or promotion, of goods

Overlap GOODS & SERVICES DELIVERY OF GOODS & SERVICES Where there is a single agreement that covers both the terms of the sale of the goods or services and the provision of credit to finance the transaction, both Acts apply, but to different aspects of the transaction. The CPA applies, for instance, to the delivery and quality of the goods and services while the NCA applies to the form and content of the agreement.

FOR CGSO GOODS & SERVICES DELIVERY OF GOODS & SERVICES Complaint: No product delivered Wrong product delivered Product defective Product taken for repairs Product caused damage/ made sick Price not as advertised

FOR CREDIT OMBUD GOODS & SERVICES DELIVERY OF GOODS & SERVICES I cannot pay my account They will not give me a copy of the contract The amounts in the contract are wrong They did not tell me that the total price would be --

FOR CREDIT OMBUD GOODS & SERVICES DELIVERY OF GOODS & SERVICES I paid the amount outstanding but was handed over to debt collectors/ black listed The account was opened in my name but not by me The goods were repossessed

Complaint: Combined GOODS & SERVICES DELIVERY OF GOODS & SERVICES Complaint: I stopped paying my account because the goods were not delivered/ were defective/ were not returned from repair

Complaint: Combined GOODS & SERVICES DELIVERY OF GOODS & SERVICES CGCO advises the consumer to continue paying while the matter is sorted out and deal with it. We may have to refer the credit account side to the Credit Ombud later if that is not resolved by the supplier as well

Complaint: Combined GOODS & SERVICES DELIVERY OF GOODS & SERVICES PROBLEM 42% of the cases received by CGSO are referred elsewhere or closed because outside our Jurisdiction

Complaint: Combined GOODS & SERVICES DELIVERY OF GOODS & SERVICES SOLUTION Tell your customers whom they should complain to See e.g. ardbank/Personal/Delighted-or- disappointed