Procedures:

PROCEDURES APPLICABLE TO SUBSCRIBING BUSINESSES

These Procedures set out the terms and conditions that apply in the relationship between Onlineombud and the parties to the dispute. The Processes define the manner in which those terms and conditions are to be exercised and fulfilled

1. ONLINEOMBUD’S PRINCIPAL ROLE

1.1 (a) Onlineombud’s principal role is to consider disputes within these procedures and to facilitate the satisfaction, settlement or resolution of such disputes, whether by agreement, by making quick views or recommendations or by such other means as seem expedient, subject to these Procedures. It is not a function of Onlineombud to provide advice to individual customers.

1.2 Onlineombud shall:

(a) receive and deal with complaints arising relating to the area of business of the service provider;

(b) at Onlineombud’s sole discretion, determine whether or not a complaint falls within its jurisdiction within these Procedures;

(c) explore any reasonable prospect of resolving a complaint by a conciliated settlement acceptable to both parties;

(d) comply with any requirement under the NCA or other legislation.

1.3 Onlineombud may:

(a) in respect of matters not falling within NCA, make a recommendation or determination up to R 1 000 000, which may include amounts awarded for damages and interest or amounts for distress and inconvenience not exceeding R10 000, where appropriate;

(b) make an award up to R 1 000 in favour of a complainant when a service provider unnecessarily delays the proceedings or fails to respond to a request from Onlineombud;

(c) issue quick views or recommendations to the parties regarding how the matter should be settled, in order to resolve a complaint speedily by conciliation;

(d) follow and implement any procedure which Onlineombud deems appropriate;

(e) require a service provider or complainant involved in a complaint or dispute to provide any information which in the view of Onlineombud relates to that complaint and is necessary for its resolution;

(f) advise the public on the procedure for making a complaint to Onlineombud;

(g) set down and extend a time limit for any aspect of Onlineombud’s procedures other than that mentioned in 4.2;

(h) at any stage of the procedure dismiss a complaint on the grounds that:

(i) the complainant has misled Onlineombud;

(ii) the complainant has failed to:

     (aa) cooperate in the process; or                        
     (bb) respond to requests for information or comments within a reasonable time; or

(iii) there does not appear to be a reasonable prospect of Onlineombud eventually resolving it in favour of the complainant for whatever reason; or

(iv) a real dispute of facts exists that cannot be resolved on a balance of probabilities; or

(v) any of the grounds for exclusion from jurisdiction referred to in 3. 2 of these Procedures are established or come into existence after the complaint has provisionally been determined to fall within Onlineombud’s jurisdiction.

1.4 No member of Onlineombud’s staff may be subpoenaed to testify in court by either of the parties to a dispute considered by Onlineombud.

2. THE OBLIGATIONS OF THE SERVICE PROVIDER

2.1 The service providers shall:

(a) act within these Procedures;

(b) compile and make readily available brochures or other materials advising customers of those procedures; and

(c) expeditiously comply with requests made by Onlineombud in terms of the Procedures.

2.2 The service provider shall not:

(a) resort to litigation while a complaint is being dealt with by Onlineombud and, in respect of matters not falling within NCA, unless Onlineombud gives his or her written approval on the application of a service provider whose rights would otherwise be prejudiced;

(b) provide Onlineombud with any misleading information or answer;

(c) provide any customer with any misleading information regarding the operation of Onlineombud.

3. ONLINEOMBUD’S JURISDICTION

3.1 Eligible complainants
Onlineombud may consider a dispute brought by or on behalf of a customer or prospective customer of a service provider who is:

(a) a private individual; or

(b) a small business, including a sole proprietor or trader, a juristic person, partnership or trust, that had a turnover in the last financial year of less than R1 million; or

(c) an executor or beneficiary of a trust or estate in respect of which a service providering service has been provided; or

(d) a credit guarantor; or

(e) a person whose information is the subject of a dispute relating to confidentiality; or

(f) a person entitled to complain to Onlineombud under the provisions of NCA or other legislation; and who

(g) in respect of matters not falling within NCA, has suffered some significant monetary loss, distress or inconvenience as a result of the service provider’s conduct; and who

(h) has or should have received the service or product that is the subject of the dispute; and

(i) has tried unsuccessfully to resolve the dispute through approaches to the service provider’s management or its internal complaints handling section or the complaint has been repudiated, or there has been an undue delay by the service provider in resolving the complaint.

3.2 Limits on Onlineombud’s jurisdiction

(a) Amount involved

(i) In respect of matters falling within NCA or other legislation, Onlineombud may not consider a complaint or dispute that relates to an amount that exceeds the limit determined by the Minister;

(ii) In respect of matters not falling within NCA , Onlineombud may not consider a complaint or dispute that relates to an amount that:
    (aa) exceeds R 1 000 000 unless the service provider concerned has agreed in writing to this limitation being exceeded; or
    (bb) is part of a larger claim by the complainant against the service provider involving more than R1 000 000, unless the complainant agrees to limit the claim to R1 000 000; or
    (cc) together with another claim which the complainant could make against the service provider would add up to a total of more than R 1 000 000, unless the other claim is separate or unrelated.
        (b) Time limit
        (i) Onlineombud may not consider a complaint or dispute that relates to:
                  (aa) an act or omission which occurred more than three years prior to                          the date when the complaint was lodged with Onlineombud; or
                  (bb) a claim that has become prescribed by law.
                         (ii) The period of three years commences on the date on which the complainant                             became aware or ought reasonably to have become aware of such occurrence,                             whichever occurs first.
            (c) Other processes
            Onlineombud may not consider a complaint or dispute that:

(i) falls within the jurisdiction of any statutory or recognized ombud as defined by their enabling legislation; or

(ii) is based on the same event and facts as any matter which is, was, or becomes, the subject of any proceedings in any court, tribunal or regulator or other independent dispute resolving body or an investigation by a statutory ombud of any jurisdiction, unless the proceedings were instituted by the service provider and Onlineombud has considered it appropriate to intervene and is not prohibited from doing so under any law; or

(iii) is under consideration by a legal practitioner, whether or not with a view to instituting legal proceedings, unless Onlineombud determines that the involvement of a legal practitioner is appropriate in the circumstances; or

(iv) would more appropriately be dealt with by a court of law or through any other dispute resolution process.

            (d) Charges
            In respect of matters not falling within NCA or other legislation, Onlineombud may           not consider a complaint or dispute that relates to a service provider’s general pricing policy, unless it relates to a price or charge being incorrectly applied by the service provider having regard to any scale of charges generally applied by that service provider or maladministration which involves an act or omission contrary to or not in accordance with a duty owed at law or pursuant to the terms (express or implied) of the contract between the service provider and the complainant.

            (e) Unreasonable complainants
            Onlineombud may, at Onlineombud’s sole discretion, determine that a dispute        should not be considered on the grounds that the complainant is pursuing it:
(i) in an unreasonable manner; or
(ii) in a frivolous, vexatious, offensive, threatening or abusive manner.

            (f) Termination by complainant
            A complainant may, at any time prior to the issuing of a determination, terminate   Onlineombud’s handling of the complaint and resort to litigation or other dispute resolution process by withdrawing the complaint in writing.

4. PRESCRIPTION

4.1 Prescription shall not run against a complainant or service provider during the period that the complaint is under consideration by Onlineombud.

4.2 For purposes of 4.1, the time during which a matter is before Onlineombud shall (provided that the complaint is determined to fall within Onlineombud’s jurisdiction) commence on the day that a properly completed application form is lodged with Onlineombud until thirty days after the closure or withdrawal of the complaint, or the review process is complete.

5. PROCEDURES OF EVIDENCE

Onlineombud shall not be bound by any legal rule of evidence.

6. DOCUMENTS

6.1 Correspondence, communications and documents which came into existence in the course of a genuine and bona fide attempt to settle a dispute will be considered to be privileged and not subject to the rule of discovery in any ensuing court action.

6.2 Documentation relating to quick views and recommendations shall not be admissible in a court of law.

6.3 Onlineombud shall return all original documents to the parties from whom they are received, unless the documents are required for the purposes of investigation. Onlineombud shall ensure that any such documents are safeguarded and returned upon the closure of the case.

7. Quick Views and Recommendations

7.1 Quick View
Onlineombud may, in order to settle a dispute speedily, provide a Quick View (an assessment) of its merits without undertaking an investigation and suggest to the parties how the matter should be settled.

7.2  Recommendation
      (a) Onlineombud may, in any case where a matter has not been settled, make a written recommendation setting out how the matter should be resolved and the reasons for the recommendation.
      (b) Neither a complainant nor a service provider shall be bound to accept a           recommendation made by Onlineombud. [Specific service providers may agree to be           bound.]
      (c) A complainant who does not accept a recommendation may institute legal proceedings at his or her own expense, if so advised, or seek another remedy.

8. PUBLICATION

8.1 In cases where a recommendation has not been accepted by a service provider Onlineombud may, at its discretion, publish the details of the recommendation and the fact that the service provider has refused to abide by it. The decision of Onlineombud on this issue shall be final.

9. EXTINGUISHING OF LIABILITY
Acceptance by a complainant and service provider of the terms of Onlineombud’s Quick view or recommendation or any other such conciliatory process will finally extinguish the liability in law of the service provider and complainant to each other on the cause of action concerned.

10. ENFORCEMENT OF OUTCOME
10.1 If any matter that falls within the provisions of NCA is resolved by agreement between the parties or through the making of a recommendation, Onlineombud may record the resolution of that dispute in the form of an order and, with the consent of the parties, submit it to a court or the NCA Tribunal to be made a consent order.
10.2  If any other matter provisions of NCA is resolved by agreement between the parties the settlement may be made an order of court by the party in whose favour the matter was decided.

11. PRECEDENTS
No decision reached in terms of these Procedures shall establish legal precedent.

12. INFORMATION NOT PROVIDED TIMEOUSLY
If a service provider does not provide information requested or does not provide it timeously, Onlineombud shall have power to assume that the evidence is against that service provider and to make a recommendation or determination accordingly.

PART 2
PROCESSES

13. RECEIPT OF ENQUIRY/ COMPLAINT

13.1 When a complaint is received, Onlineombud shall establish that:

(a) the complaint form has been correctly completed; and

(b) the complainant has followed the service provider’s internal complaints procedure; and

(c) the complainant is not satisfied with the outcome or has not received a response from the service provider within twenty (20) working days,

13.2 Onlineombud shall determine whether or not the complaint falls within the             Procedures.

13.3 If the complaint falls within the Procedures, Onlineombud shall inform the person responsible for complaint resolution within the complainant’s service provider, hereinafter referred to as the liaison official (LO), in writing, that a complaint has been lodged with OnlineOmbud and that the service provider shall have a time period set by Onlineombud, but not less than fifteen (15) working days from receipt of the communication, to resolve the dispute with the complainant or to provide its reasons for repudiating the complaint.

13.4 Subject to 19.1 below, Onlineombud will ensure that the service provider concerned is given full details of the complaint, including copies of relevant documentation submitted to Onlineombud to the extent necessary. Onlineombud will identify the complaint to the service provider concerned through inclusion of a reference number.

13.5 The notification referred to in 13.3 may be sent to the service provider concerned by post, telefax or e-mail.

1. The service provider must acknowledge receipt of the notification and may do so by letter sent by post, telefax or e-mail.

During the time set in terms of 13.3, the service provider shall:

(a) contact the complainant to clarify any issue, to ascertain the essence of the complaint and to attempt to settle the complaint to the reasonable satisfaction of the complainant;

(b) provide the complainant with a reference number or other suitable proof that a complaint has been lodged.

(c) if able to resolve the complaint, provide Onlineombud with proof that the complaint has been settled and that any undertaking made by the service provider has been complied with;

(d) undertake any investigation that is necessary;

(e) inform Onlineombud if it establishes any fact that would exclude the matter from Onlineombud’s jurisdiction; and

(f) if the service provider was unable to resolve the complaint within the time period stipulated by Onlineombud, provide Onlineombud with a response stating the reasons that the matter was not resolved and its reasons for repudiating the complaint.

STEP 3

14. COMPLAINT BECOMES A DISPUTE

14.1 If the service provider fails to respond to the referred complaint within the time stipulated in 13.3 or informs Onlineombud that it is not able to resolve the dispute or it appears from the service provider’s response that the complaint has not been resolved, the complaint becomes a dispute.
14.2  Onlineombud shall then proceed to consider the complaint.
14.3  Onlineombud may, at its discretion, refer the response to the complainant for the complainant’s consideration and permit the complainant to reply thereto within 5 business days.
14.4  After the complaint has become a dispute:
            (a) Onlineombud will direct all correspondence intended for the service provider to the LO.
            (b) The parties will direct all correspondence to Onlineombud and not to each other.

15. QUICK VIEW

15.1 If Onlineoombud is of the view that there is sufficient information available, it will issue a Quick View to the parties, based on the information available.
15.2 In the Quick View Onlineombud shall set a time limit within which the parties must indicate whether or not they agreed to the suggested resolution of the dispute.
15.3 Should either party disagree with the conclusion reached in the assessment or should either party wish to submit new information that it believes might affect the final decision, it may make further representations to Onlineombud.
15.4 In making such further representations, the parties should avoid repeating arguments already put forward, unless they were clearly overlooked.
15.5 A service provider wishing to provide new information shall explain why the information was not submitted sooner and shall advance reasons as to why it should not compensate the complainant for the inconvenience caused by the delay.
15.6 Upon receipt of representations from either of the parties, a recommendation may be issued without further consultation with either party.

16. INVESTIGATION

16.1 OnlineoOmbud may require the parties to clarify any issues raised by the complaint or to provide such information in their possession or under their control to the extent that Onlineombud deems necessary in order to arrive at a conclusion.
16.2 Subject to the considerations of confidentiality, Onlineombud may, to the extent deemed appropriate, permit each of the parties to comment on the information provided to Onlineombud by the other.

17. RECOMMENDATION

17.1 Once Onlineombud has investigated a matter to the extent necessary, a recommendation may be made.
17.2 The service provider and the complainant must advise Onlineombud in writing within 10 working days from receiving the final recommendation from Onlineombud whether they accept the terms of the recommendation or not.
17.3 If the service provider responds within the time limit referred to in 17.2 but the complainant rejects the recommendation or fails to respond within the time limit, the recommendation will fall away.
17.9 If both parties accept the terms of the recommendation, they must comply within the period of time prescribed in the recommendation.

18. NATIONAL CREDIT ACT PROCESSES
18.1 If any matter that falls within the provisions of the NCA is resolved, Onlineombud may:

(a) record the resolution of that dispute in the form of an order; and

(b) if the parties to the dispute consent to that order, submit it to:

(i) a court to be made a consent order, in terms of its Procedures; or

(ii) the Tribunal to be made a consent order in terms of section 138.

18.2 If in any matter that may be dealt with by the Regulator or the Tribunal under the NCA, Onlineombud concludes that either party to conciliation, mediation or arbitration is not participating in that process in good faith, or that there is no reasonable probability of the parties resolving their dispute through that process, Onlineombud shall issue a certificate in the prescribed form stating that the process has failed.

19. CONFIDENTIALITY
19.1 If any party to complaint supplies information to Onlineombud and requests, in writing, that it be treated as confidential information, Onlineombud shall not disclose that information to any other party, except with the written consent of the first mentioned party.
19.2 If consent is not given, Onlineombud is not entitled to use that information to reach a decision adverse to the party to whom the confidential information is denied.
19.3 Subject to 19.1, as far as is practical and at the sole discretion of Onlineombud, all documentation should be provided to both parties to a dispute. However, it is not necessary for documents and information used by Onlineombud to be provided to both parties as long as Onlineombud’s written reasons clearly identify the documents or information relied on and the identified documents or information are provided on request.

20. INTERPRETATION
In these Procedures the following expressions have the following meanings:
“Onlineombud” means Onlineombud.co.za.
“Complainant” means any service provider’s customer making a complaint to Onlineombud, in respect of any service or product provided by his or her service provider.
 “Dispute” means a disagreement in relation to a service or product provided by a service provider to a customer of that service provider which has not been resolved by the parties.  
“ Juristic person” means, for the purposes of the NCA, a partnership, association or other body of persons, corporate or unincorporated, or a trust if-
(a) there are three or more individual trustees; or
(b) the trustee is itself a juristic person,
which have a asset value or turnover of less than R1 000 000,00.
 “Maladministration” means an act or omission in breach of any obligations or duty owed by the service provider to the complainant for services or products provided to its customer.
 “NCA” means the National Credit Act No. 34 of 2005.
“Service provider” means a service or product provider or credit provider that submits to Onlineombud’s procedures.
“Small business” means a sole proprietor, juristic person, partnership or trust whose turnover for the last financial year was less than R1 million.
“Tribunal” means the Tribunal created in terms of s 26 of NCA.

21. CONFLICTS
If there is a conflict between the provisions of these Procedures and the provisions of any Act, the latter take precedence.