The growing level of credit extension in South Africa has received a lot of attention recently, more so as household debt, as a percentage of disposable income, tests record highs. It has been argued that this growth in household debt has been driven by ease of access to credit, with authorities going so far as to suggest that lenders have been extending credit ‘recklessly’. The National Credit Act was enacted on the premise that consumers need to be protected from this practice. The Act thus exerts pressure on the credit lenders to assess the consumer’s ability to repay, disclose the cost of credit, as well as setting limit on interest that can be charged. The aim of the research is to investigate the effectiveness of the Act in curbing consumer indebtedness and how it can lead to consumer behavioural attitudes and actions toward credit use. The research was carried out in two stages. The purpose of the first phase sought to explore the effectiveness of the Act by consulting with those charged with supervision of the Act (the regulator) and those implementing the Act (credit providers), while the second phase conducted a survey amongst consumers to establish their levels of awareness and understanding of the Act, and how they would model their behaviours differently, so as to curb their indebtedness. The results derived from the research show that an overwhelming acceptance of the Act, its intentions and desired outcomes amongst credit provider and the regulator, and the general need for consumer protection. Consumers, on the other hand indicate a low level of awareness of the Act, its intentions and how it is likely to impact on their finances, making it difficult to tell if it can lead to changes in levels of consumer indebtedness. / Dissertation (MBA)--University of Pretoria, 2010. / Gordon Institute of Business Science (GIBS) / unrestricted

Due to the ineffectiveness of previous credit consumer legislation to deal with the demands of a complex consumer market, a need for legislative reform in this area arose in South Africa. The National Credit Act was introduced to create a single system to regulate credit and to address the shortcomings of the previous consumer credit legislation. The Act came into full force and effect on 1 June 2007. it has a wider field of application that its predecessors and offer greater protection to consumers who enter into credit agreements with credit providers. The Act applies to all credit almost all credit agreements between parties dealing at arm's length and made, or having an effect within the Republic of South Africa, subject to certain exclusions. Three main categories of credit agreements can be identified in the Act. They are credit facilities, credit transactions and credit guarantees. The second main category also has sub-categories of agreements which are also defined in the Act. It is sometimes difficult to distinguish between the different credit agreements but it remains important since different rules apply in respect of each credit agreement. In order to distinguish a credit agreement from another, it is important to look at the elements of each definition closely and to identify characteristics which are unique to that specific agreement. It is widely accepted that every credit agreement contains two essential elements. Firstly there has to be a deferral of payment by the credit provider in respect of a debt owed by the consumer and secondly the credit provider charges a fee or interest in respect of the deferred payment. It is interesting in this regard that some of the definitions in the Act do not require a fee or interest to be levied such as in the case of a mortgage agreement or a secured loan. Coincidentally, these two definitions are also problematic in the sense that they introduce concepts which are not recognised in our legal system, it will be interesting to see what our courts make of these concepts and how they will go about incorporating it into the general principles of South African law. The different agreements to which the Act applies and their irregularities will be discussed and critically analysed. Copyright / Dissertation (LLM)--University of Pretoria, 2012. / Private Law / unrestricted

The credit industry in South Africa has grown exponentially over the past two decades. Previously the industry was regulated by different Acts that had to be interpreted jointly, and while there was an overlap between them they also differed. The dual implementation made consumer credit an extremely difficult and confusing environment, especially for the consumer. Global movement towards socio-economic type legislation and in an effort to bring a solution to the eminent credit crisis resulted in new consumer protection law. Enacted on 10 March 2006 and phased in stages over a 12 month period from 1 June 2006 till 1 June 2007 the National Credit Act has a wider field of application than any of its predecessors, bringing with it a single platform for consumer credit regulation. The management of the credit relationship between the credit provider and the consumer is largely by agreement or in other words contract. The National Credit Act to a considerable extent codifies this relationship. The NCA applies to every credit agreement between parties dealing at arm’s length and made within, or having an effect within, the Republic. This definition is subject to limitations and the exclusions. The way in which the NCA defines its field of application may differ from its predecessors and even common law. The Act defines three main types of credit agreements namely credit facilities, credit transactions and credit guarantees. Credit transactions also consist of eight subcategories. It is critical to distinguish between these different credit agreements and the manner in which the Act defines them must be scrutinised. This is not only important to determine if a certain agreement is a credit agreement in terms of the National Credit Act, but also if the Act applies, to what extent. Unfortunate grammatical construction and word choice by the legislator does not assist in this task. How the Act defines its field of application in relation to the types of agreement it applies to will be critically discussed and analysed. / Dissertation (LLM)--University of Pretoria, 2014. / Private Law / unrestricted

No abstract available / Dissertation (LLM)--University of Pretoria, 2013. / lmchunu2014 / Mercantile Law / unrestricted

The National Credit Act 34 of 2005 introduced measures in an attempt to prevent overspending by consumers and, more importantly measures to prevent credit providers from lending money to consumers who cannot afford either to pay the loan amount or the interest on the loan amount. A debtor who becomes over-indebted may apply for debt review. The NCA also provide for the reorganisation of debt of a person who is overindebted, to afford such person the opportunity to survive the immediate consequences of his financial distress. Its purpose is to inter alia, prevent reckless credit granting and address the problem of over-indebted and in particular to protect the consumer. The sequestration process in terms of the Insolvency Act 24 of 1936 may provide debt relief to individual debtors because following the sequestration order the debtor may be rehabilitated. Rehabilitation has the effect of discharging all pre-sequestration debt and further relieving the debtor of every disability resulting from sequestration. The debtor can apply sequestration by way of voluntary surrender while it is possible for a creditor to sequestrate a debtor's estate by way of compulsory sequestration. The process of compulsory sequestration is often used as a debt relief measure in form of a so-called friendly sequestration. In a friendly sequestration the debtor will arrange with a friend or a family member to whom he owes a debt that he will commit an act of insolvency in terms of section 8(g), that is, where the debtor gives written notice to a creditor that he is unable to pay all or any of his debts. When enacting the NCA, the legislature did not specifically make any mention of the Insolvency Act. The question is whether the NCA impact on the Insolvency Act. However the court in Ex Parte Ford And Two Similar Cases 2009 3 SA 376 (WCC) held that section 85 of the NCA was applicable to proceedings under voluntary surrender. The court further held that an application for voluntary surrender should not be granted where the machinery of the NCA was the appropriate mechanism to be used. In Investec Bank. v Mutemeri 2010 1 SA 265 (GSJ) the court held that section 130(1) do not apply to sequestration because an application for sequestration is not application for enforcement of the sequestrating creditor‟s claim. It is therefore not subject to the requirement of section 130(1) of the NCA. The court also held that an application by a credit provider for the sequestration of a consumer does not constitute litigation or a judicial process in terms of section 88(3). On Appeal in the case of Naidoo v Absa (391/2009)[2010] ZASCA 72 (27 May 2010) the Supreme Court of Appeal confirmed the decision of Mutemeri. The appeal court held that a credit provider need not to comply with section 129(1)(a) before instituting sequestration proceedings against a debtor. The research will be conducted as to whether the NCA impact on the Insolvency Act. / Dissertation (LLM)--University of Pretoria, 2011. / Mercantile Law / unrestricted

The National Credit Act (hereinafter the Act) introduced debt review to the Republic of South Africa in 2007. Debt review was introduced to provide debt relief to over-indebted consumers. The legislature was not able to foresee and address several implementation obstacles and accordingly courts are forced to assist in the interpretation of the Act. Courts have created some legal certainty, but there are different opinions on the correctness of these interpretational principles. This study will consider current precedents and whether the current precedents are in accordance with the intention of the legislature. Section 2 of the Act stipulates that Act should be interpreted to give effect to the purposes of the Act. The purpose of the Act is contained in section 3. One of the purposes of the Act is to promote equality between the rights of consumers and credit providers in credit agreements. This dissertation illustrates that the Act aims to achieve this equality of rights in the debt review process by the inclusion of countervailing rights in part D of chapter 4 of the Act. The legislature considered recommendations made by certain role players in the debt review process. Proposed amendments were published on 29 May 2013 in the Government Gazette for public consideration. These proposed amendments were considered in the scope of this study. The dissertation concludes that the proposed amendments need to be supplemented in order to ensure that debt review becomes and remains an effective debt relief measure for over-indebted consumers, without prejudice to the rights of credit providers. / Dissertation (LLM)--University of Pretoria, 2014. / Mercantile Law / unrestricted

This dissertation considers the possible impact of certain requirements of the National Credit Act 34 of 2005 (hereafter “NCA”) on ordinary civil procedural rules relating specifically to debt enforcement procedures. It further identifies problem areas created by some of the provisions of the NCA in this regard, and ultimately proposes potential solutions thereto. However, as indicated in various sections of the dissertation, it is not always clear what the legislature had in mind with certain provisions. This uncertainty calls for interpretation, which gives rise to further confusion in certain instances. In view of the aims of the NCA as stated in section 3 thereof, as well as various procedural provisions discussed in this dissertation, it is clear that the NCA mainly has the protection of the consumer at heart when devising procedures relating to, or ancillary to debt enforcement procedures utilised by credit providers to collect outstanding debt sounding in money. Since the NCA must operate within an existing legal system and procedural regime where certain terms have become entrenched, a broad background on some legal concepts and relevant civil procedures are provided where after the impact of the NCA thereon is considered and analysed. As the NCA will only affect general civil procedure where a credit provider attempts to enforce obligations to which the NCA applies, the exact application of the NCA and the general enforcement procedures contained therein are determined. Against this background the impact of specific procedures prescribed by the NCA on existing rules of civil procedure are critically analysed. This dissertation illustrates that although the NCA improves the position of the consumer in many ways, also with regard to debt enforcement procedures, the legislature should have drafted some provisions more carefully which would have resulted in some vital issues being clearer. Although practice and precedent will eventually even out many of the practical difficulties currently experienced it will take time and money to do so. It is therefore submitted that some areas should be reconsidered for amendment by the legislature in order to allow this significant piece of legislation to operate smoothly. Ultimately, two sets of conclusions are drawn together in this dissertation. Firstly, the general conclusions relating to the impact of the NCA on general civil debt enforcement procedures are stipulated and, secondly, specific areas that should be reconsidered by the legislature in order to allow the NCA to function optimally are identified. Copyright / Dissertation (LLM)--University of Pretoria, 2010. / Procedural Law / unrestricted

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: <ul>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.</ul> 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. / Dissertation (LLM)--University of Pretoria, 2011. / Private Law / unrestricted