The National Credit Act 34 of 2005 was the ultimate product of an initiative by the
Department of Trade and Industry to address the shortcomings of the previous
legislative enactments in the area of credit regulation, that is the Usury Act 73 of
1968 and the Credit Agreements Act 75 of 1980. The Act is a dramatic departure
from the old bi-legislative credit dispensation. Its aims are, inter alia, to provide a fair
and non-discriminatory marketplace, to prohibit unfair credit practices and reckless
lending, to establish national norms and standards relating to consumer credit and to
promote a consistent enforcement framework relating to consumer credit. The Act
repealed the Usury Act and the Credit Agreements Act. Furthermore, it established
two new bodies, namely the National Credit Regulator and the National Consumer
Tribunal to monitor and enforce the framework relating to consumer credit.
Through enactment of the National Credit Act the government appears to have
focused much energy on the prevention of over-indebtedness by instilling
prohibitions on reckless lending practices by credit providers and a variety of
processes for the prevention and alleviation of over-indebtedness. However, and
despite these endeavours, the ever important considerations of the inevitably
commonplace breach of the credit agreement by consumers and the recovery
process available to credit providers, remain to be deliberated. The relationship
between the two major role players the provider and consumer is the nub of any
discussion, theory or legislative enactment pertaining to credit.
The thesis commences with an examination of the historical background and
rationale for the Act, putting into context not only for the South African but so too for
the foreign jurist, the rules and regulations which govern the relationship between the
parties when an agreement is breached as well as the remedies and recourses that
are available to the aggrieved party in terms of the Act. At all times the grounding of
the common law, which acts as a stabiliser especially in times of changes in and of
specific legislation, is examined in relation to breach and remedies as affected by the
Act.
Chapter 1 is a basic Introduction to the topic, sets the background for the discussion
which ensues and examines the purpose and methodology adopted in the work.
Chapter 2 encompasses a concise historical introduction to credit parameters; it
looks at how the historical regulatory pendulum of the credit market swings to and
fro. By examining the history one is able to discern what the current legislative
trends are, and where they are likely headed. Chapter 3 examines the background
and rationale for the new Act. The reasons why the previous credit regime was
deemed ineffective for the present day credit market are also considered. Chapter 4
is a consideration of the previous legislative regime and introduction to the current
legislative setting. Chapter 5 introduces the nature of the obligation and breach of
contract, followed by a study of the procedures that are required before debts can be
enforced through the courts. The procedures so required by the previous credit
legislation, as well as those expected in foreign jurisdictions are also examined. The
final chapter, Chapter 6, is an examination of specific remedies available to the credit
provider as provided by the common law and by the Act and how the Act amends
some of the common law remedies.
Throughout the thesis a comparative examination of the jurisdictions of England and
Italy are conducted as well as how these countries have tackled the problem of
regulation of consumer credit, breach and their ensuing remedies and
consequences. The jurisdictions examined are an example of a common law system
and a civilian one, respectively. Due to the movements in harmonisation of
commercial private law and due to the massive influence of this process on
individual regional legislations, it is submitted that with contemporary legal
developments due to cross-border trade, analysis of legislative developments in any
European country cannot be carried out without reference to the law-making
sanction of the European Union. Accordingly, the European Union, in so far as it
relates to credit, has been studied together with the other two foreign jurisdictions.
The conclusion is a consideration of whether the legislature has, through
promulgation of the Act in relation to the remedies for breach, over protected the
consumer through overregulation and whether such paternalism has proved, over
time, to be detrimental to the credit market. The under protection of the consumer
cannot be ruled out either, and this too has been considered given that the import
of the wording of the Act as well as the interpretations of its sections by the judiciary
will be an on-going exercise. The common law, the thread that gathers the South
African legislative garment and sets it apart from the civilian tradition, and its effects
are contemplated throughout the work. The closing remarks consider whether the
Act is fair and sustainable in the South African environment and how it compares
with foreign jurisdictions. The conclusion will reveal whether room exists for
suggested improvements both to the Act and to the interpretation thereof in the area
of recovery and whether the description given to the French Civil Code, that is that it
is like an old lady, with both wisdom and weaknesses, will eventually be capable of
assignment to the National Credit Act. / Thesis (LLD)--University of Pretoria, 2015. / Private Law / LLD / Unrestricted
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:up/oai:repository.up.ac.za:2263/53204 |
| Date | January 2015 |
| Creators | Vessio, Monica Laura |
| Contributors | Grove, N.J., monica@mlvattorneys.co.za, Van Heerden, C.M. (Corlia) |
| Publisher | University of Pretoria |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
| Rights | © 2016 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. |
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