IMPLICATIONS FOR THE TOURISM INDUSTRY: THE CONSUMER GOODS & SERVICES OMBUDSMAN (‘CGSO’), TERMS OF REFERENCE, POWERS & FUNCTIONS
The primary focus of the CGSO is to balance the rights and obligations of consumers and suppliers. As I have pointed out in earlier articles and workshops, it should be borne in mind is that there are in fact rights that accrue to suppliers and likewise consumers not only have rights but obligations too.
The CGSO is required to remain independent, objective, fair and equitable in applying the provisions of the Consumer Protection Act (CPA) and being an administrative body, as failure to act as aforesaid may well leave itself open to administrative law review.
The jurisdiction of the CGSO is subject to the following limitations:
- Claims must be brought within three years and the CGSO is required to advise consumers if the complaint lodged is older than two years.
- It must decline complaints that are unreasonable, frivolous, vexatious or if the complainant displays an offensive, threatening or abusive attitude.
- Likewise, a matter may be declined if the CGSO is of the view that there does not appear to be a reasonable prospect of matter being settled.
- The complainant can at any time withdraw the complaint.
- If the matter is under consideration by a legal practitioner, the CGSO can decline involvement unless it feels the legal practitioner can add value.
Functions of the CGSO include the following:
- Investigate and evaluate the complaint to the extent that it contravenes the Code.
- Attempt to facilitate or make recommendations regarding a settlement.
- If the parties have managed to settle the matter, the CGSO can upon request of the parties submit it to court/tribunal to be made a consent order – this may well be a good idea as any breach thereof by either party will be discouraged/be easier to enforce.
- Refer the matter to a more appropriate body.
- Make a recommendation/suggestion as to how the matter may be settled.
THE CGSO COMPLAINTS PROCESS
The CGSO Code encourages parties to resolve any disputes themselves, either amongst themselves or via the supplier’s internal dispute mechanism. So much so that if the consumer goes directly to the CGSO, he will refer the consumer back to the supplier! However, it will not do so if it will result in ‘undue hardship or inconvenience’ to the consumer – this is done when the consumer falls into the bracket of ‘vulnerable’ consumers (See section 2 (1)(b) of the CPA).
However, the consumer may go to the CGSO if the consumer is dissatisfied with either the manner in which the supplier is dealing with the complaint or the outcome. Upon receipt of the complaint, the CGSO must check the time limits i.e. has the matter prescribed (brought too late) and whether it has jurisdiction. If the parties fail to resolve the matter themselves, the CGSO can either facilitate a settlement, mediate, or make a recommendation.
FACILITATION
- The code suggests that he can do so without conducting/carrying out an investigation which in itself is a bit mystifying!
- Nevertheless, he is obliged to gather ‘all records and information’.
- The CGSO may grant all, some or none of the remedies sought by the consumer and convey this to the parties.
- The parties can accept or reject it: if accepted it can be made a binding order and if rejected, the CGSO will advise them of other options.
MEDIATION
- The code once again indicates no investigation is required.
- It should be borne in mind that mediation is not binding.
- If the CGSO allows it, the parties may have legal representation.
RECOMMENDATION
- The recommendation by the CGSO must address the methodology and the give reasons.
- The CGSO can invite the comments of both parties.
- It must indicate who the CGSO believes to be liable, be it the retailer or wholesaler, if applicable.
- The recommendation, as with mediation, is not binding but if accepted by both parties (within the prescribed time limit), may be made an order of a court.
- If rejected, the CGSO will advise them of other options.
Disclaimer: This article is intended to provide a brief overview of legal matters pertaining to the tourism industry and is not intended as legal advice. © Adv Louis Nel, ‘Louis The Lawyer’, August 2017.
