| (1) | As an alternative to filing a complaint with the National Credit Regulator in terms of section 136, a person may refer a matter or a dispute following an allegation of a reckless credit agreement that could be the subject of such a complaint as follows: |
[Words preceding subsection (1)(a) substituted by section 34 of Act No. 19 of 2014]
| (a) | If the credit provider concerned is a financial institution as defined in the Financial Sector Regulation Act, 2017, the matter— |
[Section 134(1)(a)(i) substituted by section 290, item 2(a) in Schedule 4, of Act No. 9 of 2017 - effective 1 October 2018 (paragraph (h) of Notice 169 of 2018)]
| (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 Sector Regulation Act, 2017, 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 |
[Section 134(1)(b) substituted by section 290, item 2(a) in Schedule 4, of Act No. 9 of 2017 - effective 1 October 2018 (paragraph (h) of Notice 169 of 2018)]
| (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 Sector Regulation Act, 2017, if the credit provider concerned is a financial institution 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 |
[Section 134(4)(b)(i) substituted by section 290, item 2(b) in Schedule 4, of Act No. 9 of 2017 - effective 1 October 2018 (paragraph (h) of Notice 169 of 2018)]
| (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. |
