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.

Read more at http://jordaanattorneys.co.za/Court-Cases/Firstrand-Bank-Limited-v-Nkata/

Insights on the benefits of debt counselling

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.

Read more at http://www.jordaanattorneys.co.za/Court-Cases/Firstrand-Bank-Ltd-v-Govender/

FFS FINANCE SOUTH AFRICA t/a FORD CREDIT v VAN DER WESTHUIZEN

This case is another case following the growing trend in our courts which confirms that a consumer is not in willful default of his/her debt review order if the PDA fails to make payments to the creditors.

http://jordaanattorneys.co.za/Court-Cases/Ffs-Finance-South-Africa-v-Van-Der-Westhuizen/

What is debt counselling or debt review?

What steps do I need to take to apply for debt counselling or debt review?

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.

Read more at http://www.jordaanattorneys.co.za/Court-Cases/Collett-v-Firstrand-Bank/