Circular 66 – New Practice Directive on Dispute Resolution from the Chief Ombud

Dear Valued Managing Agent

1. The Chief Ombud, on Thursday, 2 December 2021, released a new Practice Directive on Dispute Resolution, amending the Dispute Resolution Practice Directive of 2019. Kindly carefully read the below amendments. All new time periods appear in a bold and underlined font.
2. When conducting Dispute Resolution matters for your Schemes, it is important to be aware of the following Practice Directives on dispute resolution which have been published by the Chief Ombud thus far, being:
   2.1 The Main Practice Directive on Dispute Resolution, 1 August 2019 – https://alattorneys.co.za/wp-content/uploads/2019/11/CSOS-Practice-Directive-1-of-2019-May-2019.pdf;
   2.2 The Practice Directive 23 June 2020, amending the 1 August 2019 directive – https://alattorneys.co.za/wp-content/uploads/2021/02/AMENDMENT-TO-PRACTICE-DIRECTIVE-ON-DISPUTE-RESOLUTION-CLARITY-ON-BODY-CORPORATE-AND-TRUSTEE-MEETINGS.pdf; and
   2.3 The Practice Directive 2 December 2021, referred to above, https://alattorneys.co.za/wp-content/uploads/2021/12/AMENDMENT-TO-PRACTICE-DIRECTIVE-2019-FOR-SIGNATURE.pdf.
3. Below, under various sub-headings is a summary of the new Practice Directive, 2 December 2021:

SUSPENSION OF THE DISPUTE RESOLUTION FEE

The prescribed fee for a CSOS Application in the regulations to the CSOS Act and dealt with in paragraph 13 of the Practice Directive, 1 May 2019, of R50 has been suspended indefinitely. Therefore, in respect of all new applications made to CSOS after 2 December 2021, the fee of R50 will not be payable by the Applicant.

WAIVER OF THE ADJUDICATION FEE

The prescribed fee payable for a CSOS adjudication in the regulations to the CSOS Act and in terms of paragraph 22 of the Practice Directive, 1 May 2019, has been waived by the CSOS for all adjudications.  Therefore, in respect of all adjudications which commence after 2 December 2021, no adjudication fee will be payable by the Applicant.

NOTICE TO AFFECTED PARTIES – SECTION 43

The period afforded to a Respondent to furnish a response to an application to the CSOS, previously provided in paragraph 14.1 of the Practice Directive, 1 May 2019,  has been reduced from 14 days to 7 days.

NOTICE TO APPLICANT – SECTION 44

The period afforded to the Applicant to respond to the Respondent’s response, previously provided in paragraph 14.2 of the Practice Directive, 1 May 2019, has been reduced from 10 days to 5 days.

EXTENSIONS

In terms of paragraph 14.3 of the Practice Directive, 1 May 2019, the period of an extension which may be applied for by the parties to respond as above, has been reduced from 10 days to 5 days.

NOTICE OF CONCILIATION

The notice period to the parties of the time and date for conciliation, dealt with in paragraph 17.1 of the Practice Directive, 1 May 2019, has been reduced from 14 days to 7 days.

PROCEDURE FOR CONDUCTING CONCILIATIONS

The Practice Directive, 2 December 2021, sets out that no face-to-face conciliations will take place and repeats much of the contents of paragraph 7 of the Practice Directive, 23 June 2020.  It concludes that if a matter cannot be settled, a certificate of non-resolution with an automatic referral to adjudication will be issued. 

NOTICE OF ADJUDICATION

The notice period to the parties for the date and time of the adjudication has been reduced from 14 days to 7 days.  Where an adjudication will be conducted on the papers, without oral submissions, the notice period of 7 days will not apply.

PROCEDURE FOR ADJUDICATIONS

The contents of the Practice Directive, 2 December 2021 are much the same as the Practice Directive, 23 June 2020, no face-to-face adjudications will be conducted and adjudications will be conducted based on the papers filed by the parties and further written submissions made.  The Adjudicator may in his discretion conduct the adjudication telephonically or virtually. 

The Adjudicator/assigned Administrator will request further final submissions from both parties within 5 working days, thereafter the Adjudicator will consider the matter. Should a party fail to make such final written submissions, such party will forfeit their opportunity to do so, unless compelling circumstances approved by the Adjudicator exist.

90 DAY PERIOD

The CSOS will attempt to resolve/dispose of disputes within 90 days.  The 90 day period refers to working days and excludes weekends and public holidays and is calculated based on a 45 day period for disposal of a conciliation and a 45 day period for disposal of an adjudication.

PROCEDURE ON URGENT APPLICATIONS

The Practice Directive, 2 December 2021, sets out the process to be followed by the parties and the timelines, should an application be urgent.  If the application is urgent, in terms of Section 43, the Respondent will have 24 hours to respond to the Applicant’s application.  The Applicant will then, in terms of Section 44, be afforded 24 hours to confirm that he wishes to proceed with the application. 

The Adjudicator will issue an order within 48 hours from receipt of a response pursuant to the Section 44 notice. 

Urgency will be determined on the basis of imminent harm, loss of life, damage or loss that may occur if the dispute is not handled on an urgent basis.  

PLEASE MAKE CONTACT WITH OUR OFFICES FOR ANY ASSISTANCE THAT YOU MAY NEED IN REGARD TO THE MAKING OF OR RESPONDING TO A CSOS APPLICATION.