Jurisdiction

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The Credit Ombud’s principal powers and duties are to consider disputes in accordance with its Terms of Reference and to facilitate and negotiate the satisfaction, settlement or resolution of such disputes whether by agreement, mediation or by making recommendations or rulings or by such other means as seem expedient, subject to the Terms of Reference and the Operational Procedures.

1. THE CREDIT OMBUD’s JURISDICTION

1.1 General

1.1.1 The Credit Ombud may consider a dispute brought by:

(a) a private individual; or
(b) a company, including a sole proprietor or trader, a juristic person, partnership or trust
(c) a person entitled to complain to the Credit Ombud under the provisions of FSOS or the NCA.

1.1.2 The Credit Ombud may consider a dispute if an individual or organization has tried unsuccessfully to resolve the dispute through approaches to the Credit Bureau, Debt Counsellor, PDA, or Credit Providers or any Organisation dealing with credit receivers in terms of credit related matters, or the complaint has been repudiated, or there has been an undue delay (longer than 20 working days) in resolving the complaint.

1.2 Limits on the jurisdiction of The Credit Ombud

1.2.1 If the complaint is about someone who is not a member or a member by association of the Credit Ombud, the Credit Ombud has the discretion to decide whether or not to assist the consumer with his/her complaint, provided that the Credit Ombud acknowledges that any non-member is under no obligation to assist or respond to the compliant;

1.2.2 If the complaint relates to a member’s commercial judgment about lending or security;

1.2.3 If the complaint relates to any transaction entered into outside South Africa;

Credit Ombud Terms of Reference – Version 2013 – Paragraph 9

1.2.4 In the case of a secured loan, where the security is situated or legally registered outside South Africa or is governed by laws other than the laws in South Africa;

1.2.5 If the complainant is not the person to whom the services were directly provided to by the member, provided that complainants may be assisted by third parties to submit their complaints;

1.2.6 If the member’s act or omission occurred more than three years before the receipt of the complaint by the Credit Ombud, the Credit Ombud has the discretion to accept the complaint or not, except for Credit Information disputes, where the three year period shall not apply;

1.2.7 If the complainant has lodged a previous complaint regarding similar issues about a member which has been considered by the Credit Ombud, unless relevant new evidence is available;

1.2.8 If the same complaint is already or has been the subject of proceedings before a tribunal, arbitrator, other Ombudsman, or is under investigation by any Ombudsman or Regulator. If the complaint is the subject of proceedings before a Court of law, instituted by or on behalf of the credit provider, subscriber to the credit bureau or any other organization dealing with the matter, the Ombud has the discretion to accept the complaint.

2. JURISDICTION IN RESPECT OF NON-BANK CREDIT AND DEBT COUNSELLING MATTERS

The following jurisdiction relates specifically to non-bank credit transactions and debt counselling matters and having due regard to the requirements of the National Credit Act and any relevant Codes of Conduct, the Credit Ombud shall consider complaints that pertain to matters where a member: Credit Ombud Terms of Reference – Version 2013 – Paragraph 10

2.1 breached any relevant laws or regulations or by-law or duties imposed by law or did not give effect to a right provided by law or any regulations or by-law in relation to the subject matter of the complaint;

2.2 breached an applicable code of practice or code of conduct provided for by relevant legislation or applicable in the industry, regulations or by-laws;

2.3 did not meet standards of good practice;

2.4 Acted unfairly and/or unconscionable towards a complainant;

3. LIMITS ON JURISDICTION IN RESPECT OF COMPLAINTS IN TERMS OF NON-BANK CREDIT TRANSACTIONS AND DEBT COUNSELLING MATTERS:

3.1 Cash transactions;

3.2 If the complaint relates to a member’s commercial judgment about lending or security;

3.3 In the case of a secured loan, where the security is situated or legally registered outside South Africa or is governed by laws other than the laws in South Africa.

4. JURISDICTION IN RESPECT OF CREDIT INFORMATION MATTERS:

The Credit Ombud shall consider complaints that pertain to:

4.1 Inaccurate or incorrect credit information;

4.2 Insufficient or incomplete credit information;

4.3 Out-dated credit information;

4.4 Notification or the lack thereof to consumers prior to listing adverse information as provided for in the NCA and more fully explained hereunder;

4.5 “No- fault- default” matters, as defined hereunder; Credit Ombud Terms of Reference – Version 2013 – Paragraph 12

4.6 Listings in respect of prescribed debt, as defined hereunder;

4.7 Duplicate and/or double listings in respect of the same debt;

4.8 Service disputes – i.e. non-payment of an account or debt due to a dispute relating to service to which the account relates;

4.9 Listings in respect of claims or Court orders for damages and/or costs

4.10 Listings following incidents of identity theft and/or identity fraud

The Credit Ombud shall apply the applicable legislation, regulation, Code of Conduct or guidelines, and/or the principles of fairness and equity in resolving a dispute.

5. LIMITS OF THE CREDIT OMBUD’S JURISDICTION IN RESPECT OF CREDIT INFORMATION MATTERS

The Credit Ombud may not consider a complaint or dispute it relates to any credit information outside South Africa.

6. THE CREDIT OMBUD’S JURISDICTION IN RESPECT OF CREDIT INFORMATION MATTERS – FURTHER INFORMATION AND INTERPRETATION

6.1 The Consumer Credit information as per Regulation 17 of the National Credit Act, 2005 – see ANNEXURE B, may be displayed and used for purposes of credit scoring or credit assessment for a maximum period from the date of the event, as indicated in the Table, and as may be amended from time to time. Credit Ombud Terms of Reference – Version 2013 – Paragraph 14

6.2 The date of the event is the date on which the relevant order was given or the date on which the event occurred which is being displayed in the consumer credit record.

6.3 The Definitions of Adverse Classifications of Consumer Behaviour are as set out in the Regulations to the NCA, namely:

6.3.1 Subjective classifications of consumer behaviour which include classifications such as ‘delinquent’, ‘default’, ‘slow paying’, ‘absconded’, or ‘not contactable’.

6.3.2 Adverse classifications of enforcement action are classifications related to enforcement action taken by the credit provider, including classifications such as ‘handed over for collection or recovery’, ‘legal action’, or ‘write-off;

6.4 Payment profile refers to the consumer’s payment history in respect of a particular transaction.

6.5 The obligation of the Subscriber to the Credit Bureau to supply accurate credit information to the bureau, entails the following;

6.5.1 Subscribers of credit bureau shall take reasonable steps to ensure that the data supplied to credit bureau is correct, accurate, up-to-date, relevant, complete and valid.

6.5.2 Subscribers will supply the information to the Credit Bureau within a reasonable time period or as required in terms of the legislation and regulations.

Credit Ombud Terms of Reference – Version 2013 – Paragraph 14 – 14.5.2

6.6 The obligation of the Subscriber to the Credit Bureau to properly inform credit receivers and all consumers listed on the bureaus, prior to adversely listing them, entails;

6.6.1 Subscribers of credit bureau shall give their customers twenty (20) working days notice of their intention to submit the following adverse information concerning that person to a credit bureau: 

i. Classification of behaviour, including classifications such as delinquent, default, slow payer, absconded and not contactable;

ii. Classifications related to enforcement such as handed over for collection or recovery, legal action or write-off

6.6.2 Subscribers shall have the obligation to prove that the relevant notification referred to above was given to the customer. 

i. The Credit Ombud shall accept postage via registered mail, using the track and trace system, to the correct domicilium address for the consumer, as prove of notification;

ii. In all other cases and by using other methods or notification, the subscriber must produce proof that the notification reached the consumer.

iii. If there is not sufficient proof in respect of clause ii above, and the consumer disputes receiving notice, the information may not be listed and must be removed if already listed. The consumer must be given 20 days notice where after the information may be listed for the remainder of the maximum period as provided for in the NCA (see table in Annexure B). Credit Ombud Terms of Reference – Version 2013 – Paragraph – 14 – 14.6.2

6.6.3 In respect of cases where a credit receiver defaults through no fault of his/her own and subsequently rehabilitates himself/herself, the Credit Ombud may, but is not limited to, applying any or all of the following tests to ensure that the consumer qualifies for early removal of the information:

Test

  1. Was there any intentional or negligent conduct on the part of the complainant that caused the default listing?
  2. Prior to the default listing in question – did the complainant’s payment behaviour shows an intention to honour his/her debts?
  3. Did the complainant take the necessary steps, if any, to avoid the default listings?
  4. Did the complaint act reasonably in communicating with his/her credit providers?
  5. Has the complainant since the default, made bona fide attempts to rehabilitate himself?

6.6.4 The Credit Ombud’s jurisdiction in respect of listings in respect of prescribed debt entails the following:

i. Subscribers of credit bureau shall not submit information to credit bureau in respect of debts that have prescribed.

ii. Prescription of debt in these Terms of Reference is defined as follows: In the event that a debtor has not acknowledged or paid a debt for a period of 36 months or longer, the said debt would have prescribed and a subscriber of Credit Bureau will not be allowed to list the information on the Credit Bureau.

6.6.5 Duplicate/double listings in respect of the same debt:

Credit Ombud Terms of Reference – Version 2013 – Paragraph 14

i. Subscribers of Credit Bureau shall not submit information more than once in respect of the same debt.

Unreasonable complainants

The Ombud may, at the Ombud's sole discretion, determine that a dispute should not be considered on the grounds that the complainant is pursuing it: in an unreasonable manner; or in a frivolous, vexatious, offensive, threatening or abusive manner.

Termination by Complainant

A complainant may, at any time prior to the issuing of a ruling, terminate the CO's handling of the complaint and resort to litigation or other dispute resolution process by withdrawing the complaint in writing.