Title page for ETD etd-05262011-152300


Document Type Master's Dissertation
Author De Villiers, Dawid Willem
Email dwd@mweb.co.za
URN etd-05262011-152300
Document Title A workable debt review process for South Africa : at last?
Degree LLM
Department Private Law
Supervisor
Advisor Name Title
Mr S Renke Supervisor
Keywords
  • Magistraes' court
  • National Credit Act 34 of 2005
  • National Credit Regulator
  • National Consumer Tribunal
  • emoluments attachment order
  • debt review
  • debt counsellor
  • consumer
  • credit provider
  • application procedure
  • declaratory order
  • judicial discretion
  • jurisdiction
  • service
Date 2011-04-11
Availability unrestricted
Abstract

The National Credit Act 34 of 2005 and its Regulations came into full effect on 1 June 2007. In order to protect consumers by addressing over-indebtedness, the Act introduces a novel process of debt review in which a new agent, the debt counsellor, plays an important role to help relieve a consumer’s over-indebtedness.

However, after the Act commenced, problems soon came to pass with regard to the debt review process. This was mainly due to loopholes and shortcomings in the National Credit Act and its Regulations. The key problems in debt review practice which are identified and analysed in this dissertation, are as follows:

    a) The interpretation of “the steps contemplated in section 129” in section 86(2).

    b) The application for debt review (Form 16 in the Schedule of the Regulations).

    c) The procedure to be followed when approaching the court.

    d) The format and contents of the “proposal” mentioned in sections 86 and 87.

    e) The omission of section 86(7)(c) in section 87.

    f) The non-provision for consent orders in terms of sections 86(7)(a) and 86(7)(c).

    e) The non-regulation of payment distribution agencies.

    f) The termination of debt review by the debt counsellor or a consumer.

    g) The qualifications, training and expertise of debt counsellors.

Consequently measures taken by the industry or suggested by scholars to solve these problems are evaluated, for example the work stream agreement, the publication of two sets of new draft regulations, the request for a declaratory order in the High Court, a research commission to the UP Law Clinic and numerous conferences. Somewhat oversimplified, it can be said that most of the measures taken to solve the problems moved in the wrong direction, that is away from a simple, easy, quick, cheap and consumer-friendly process. At the moment the debt review procedures are very complex, extended, expensive and even consumer-hostile.

In conclusion additional measures are proposed to those that other sources already recommended. Effective implementation of these measures would hopefully improve the practice of debt review in the Republic of South Africa, although it can realistically be assumed that there will always remain challenges in this regard.

© 2010, University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria.

Please cite as follows:

De Villiers, DW 2010, A workable debt review process for South Africa : at last?, LLM dissertation, University of Pretoria, Pretoria, viewed yymmdd < http://upetd.up.ac.za/thesis/available/etd-05262011-152300/ >

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