Tuesday, December 8, 2015

South Africa grapples with worst drought in 30 years!

There are various reasons why consumers find themselves in a situation where there are unable to pay their debts. Most of the time, from our experience, the cause is due to circumstances outside of the consumer's control.

It is a well-known fact that our country is currently experiencing one of the worst droughts in the recent memory. The situation is aggravated by the fact that the previous two years were also stricken plagued by drought.

Farmers are especially vulnerable as creditors are expecting full payment within a year for production credit. The creditors also take extensive security over the assets of the consumer, in this case the farmer.

Luckily, farmers are not excluded from the advantages provided by the National Credit Act. They too can apply for debt review and restructure the production credit agreements to be repaid during a longer period.

They will then be put in a position to continue the farming enterprise as they will not lose their assets.


Tuesday, July 21, 2015

Standard Bank v Visagie

The High Court Bloemfontein confirmed that a Credit Provider has to prove that a notice in terms of Section 86(10) which terminates the debt review process must be served on a consumer.

Standard Bank v Mkhwanazi

The Durban High Court confirmed in this case that the 10 days afforded to a consumer to reply to a notification in terms of Section 129 of the National Credit Act starts to run after the notice has been delivered to the post office of the consumer and the notification sent.

Unless the credit provider adheres to this time period the summons will be premature if issued within the 10 day period.

Wednesday, April 22, 2015

Firstrand Bank Ltd v Nkata

The Supreme Court of Appeal (SCA) upheld an appeal against the order of the high court which had re-instated a credit agreement, relying on the provisions of s 129(3) of the National Credit Act 34 of 2005 (the NCA). The SCA, after an extensive review of the case law in South Africa and England, as to the meaning of civil execution, held that re-instatement was prohibited in terms of s 129(4) of the NCA after a sale in execution had taken place. The meaning of ‘execution’ had not been defined in the NCA. Referring to the fact that execution referred to a process rather than a single event, the SCA held that, in terms of s 129(4) of the NCA, the decisive event was the sale in execution at a public auction. Contrary to the high court, the SCA found that reinstatement in terms of s 129(3) had to occur prior to the sale in execution and not prior to the transfer of immovable property, consequent upon a sale in execution. The SCA found that this interpretation was required, inter alia, in order to ensure public confidence in auctions held in execution and that it was in the interest of both consumers and credit providers generally that this confidence be maintained in order to maximise the prices for which purchasers would bid at these auctions.

Thursday, March 5, 2015

FirstRand Bank Ltd v Govender

In this case the High Court considered the question whether or not to come to the assistance of a consumer that applied for debt counselling. The consumer did not disclose his full financial information to the Court and the Court then stated that a consumer must not be coy when asking for the assistance of the Court. The consumer has to disclose his full financial information to such an extent that the Court can be persuaded that the debt review payment is affordable and sustainable.

Tuesday, February 3, 2015

Collett v Firstrand Bank Limited - Termination of Debt Review

In this case the Appeal Court considered the question whether or not a credit provider can terminate the debt review process and thus exclude his debt from debt counselling after a court application has been issued. The court found that after the 60 days have lapsed a credit provider can indeed terminate the debt review process.

In practice however very few credit providers proceed to terminate if a consumer is making regular debt review payments. The act has also been amended to ensure that a credit provider cannot terminate once a court application has been filed. This amendment has however not come into effect as of yet.

Sunday, February 1, 2015

Nedbank v Thompson - South Gauteng High Court

In this case the High Court dealt with the fact where a Consumer has made his monthly payments to the PDA but the PDA did not pay the creditors correctly. The bank argued that the PDA is an agent of the consumer and the consumer is therefore liable for any act or ommission of the PDA.
The High Court disagreed and found that there is no agreement between the PDA and the Consumer. The High Court therefore found that the Consumer is not liable for the PDA's mistakes and therefore the consumer was not in willful default of the debt review court order.


Sebola v Standard Bank of South Africa Ltd.

In this case the Constitutional Court found that a credit provider has to deliver the notice in terms of Section 129 of the National Credit Act in such a way that delivery can be proven. Consequently most credit providers are delivering the notice by Sheriff. The purpose of the Notice is to advise consumers of their rights to apply for debt counselling or debt review at a debt counsellor.

Read more at 

Thursday, January 22, 2015

How to return a car in terms of the Consumer Protection Act.

What happens if I bought a car which is defective or you are not satisfied with?

The Consumer Protection Act affords a consumer to return a product which is defective within six months after date of purchase for a refund.

When you buy a car however, the car is purchased from the dealer by the bank who becomes the owner. You purchase the car from the bank. To whom must the car now be returned?

This is the question the Cape High Court had to deal with recently in the matter of MFC v BOTHA.

In short the court found that the bank cannot be regarded as a supplier and therefore the vehicle cannot be returned to the bank. Both the bank and the consumer are regarded as consumers.

The court did not elaborate on the procedure to be followed as the six-month period had lapsed by the time the case was heard.

It would however be advisable to return the vehicle to the dealer and contact your bank with the details. The bank will then have to claim the purchase price from the dealer to settle your account.

For more details please visit our website at www.jordaanattorneys.co.za.

Wednesday, January 21, 2015

High Court confirms that consumer is not liable for PDA mistakes.

The High Court of Bloemfontein and Johannesburg has confirmed that a consumer who pays his debt review amount to the PDA but the PDA neglects to make the correct payment to the credit providers is not in wilful default of the court order.

The High Court confirmed that in such a case the credit provider is not entitled to judgement and can therefore not enforce the credit agreement.

Please visit our website www.jordaanattorneys.co.za for further details.