National Credit Act, 2005 (Act No. 34 of 2005)
Chapter 7 : Dispute Settlement other than debt enforcement
Part A : Alternative dispute resolution

134. Alternative dispute resolution

1)        As an alternative to filing a complaint with the National Credit Regulator in terms of section 136, a person may refer a matter that could be the subject of such a complaint as follows:

a)        If the credit provider concerned is a financial institution as defined in the Financial Services Ombud Schemes Act, 2004 (Act No. 37 of 2004), the matter-

i)          may be referred only to the ombud with jurisdiction to resolve a complaint or settle a matter involving that credit provider, as determined in accordance with sections 13 and 14 of that Act; and

ii)         must be procedurally resolved as if it were a complaint in terms of that Act; or

b)        if the credit provider is not a financial institution, as defined in the Financial Services Ombud Schemes Act, 2004 (Act No. 37 of 2004), the matter may be referred to either-

i)          a consumer court, for resolution in accordance with this Act and the provincial legislation establishing that consumer court; or

ii)         an alternative dispute resolution agent, for resolution by conciliation, mediation or arbitration.

2)        The respondent in a matter referred to an alternative dispute resolution agent under subsection (1)(b)(ii) may object to that referral in writing within 10 business days, in which case-

a)        the matter may not be resolved by an alternative dispute resolution agent;

b)        if the matter is the proper subject of a complaint to the National Credit Regulator, the matter is deemed to have been filed as a complaint in terms of section 136; or

c)        if the matter is the proper subject of an application to the Tribunal, the matter is deemed to have been an application directly to the Tribunal in terms of section 137.

3)        The Tribunal, after considering a matter in terms of a deemed application under subsection (2)(c), may make an exceptional order of costs against the respondent if the Tribunal considers that the matter could have been properly resolved by conciliation, mediation or arbitration carried out in good faith.

4)        In respect of any dispute between a credit provider and a consumer that could be the subject of an application to the Tribunal in terms of this Act, other than Part C of this Chapter, the consumer or credit provider, before either may apply directly to the Tribunal-

a)        must attempt to resolve that matter directly between themselves; and

b)        if unable to do so, must refer the matter-

i)          to the ombud with jurisdiction, for resolution in accordance with this Act and in terms of the Financial Services Ombud Schemes Act, 2004 (Act No. 37 of 2004), if the credit provider concerned is a financial institution and a participant in a recognised scheme as defined in that Act; or

ii)         in any other case, to either-

aa)      a consumer court, for resolution in accordance with this Act and the provincial legislation establishing that consumer court; or

bb)      an alternative dispute resolution agent, for resolution by conciliation, mediation or arbitration.

5)        If an alternative dispute resolution agent concludes that either party to conciliation, mediation or arbitration in terms of subsection (4)(b)(ii)(bb) 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, the alternative dispute resolution agent must issue a certificate in the prescribed form stating that the process has failed.

135. Dispute resolution may result in consent order

1)        The ombud with jurisdiction, consumer court or alternative dispute resolution agent that has resolved, or assisted parties in resolving, a dispute in terms of this Part 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 rules; or

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

2)        The National Credit Regulator may not intervene before the Tribunal in respect of a consent order submitted in terms of this section.