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Research paper thumbnail of Wesbank v Deon Winston Papier and the National Credit Regulator (unreported case no 1456/10 (WCC))

The National Credit Act 34 of 2005 (the NCA) aims to address and prevent the overindebtedness of ... more The National Credit Act 34 of 2005 (the NCA)
aims to address and prevent the overindebtedness
of consumers and to provide mechanisms for resolving overindebtedness based on the principle of satisfaction by the consumer of all responsible obligations. In this regard it provides inter alia for the mechanism of debt review during which a debt counsellor reviews the debt situation of a consumer in order to determine if the consumer is over-indebted and to attempt to assist the consumer in obtaining debt relief in the form of a consensual debt re-arrangement agreement or court-ordered debt re-structuring. During this process the consumer and credit providers concerned are obliged to comply with any reasonable requests by the debt
counsellor to facilitate the evaluation of the consumer's state of indebtedness and the prospects of responsible debt re-arrangement, and to participate in good faith in
the review and any negotiations designed to result in responsible debt rearrangement.

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Research paper thumbnail of DEBT COUNSELLING V DEBT ENFORCEMENT: SOME PROCEDURAL QUESTIONS ANSWERED BMW Financial Services (SA) (Pty) Ltd v Donkin 2009 6 SA 63 (KZD

The National Credit Act 34 of 2005 (hereinafter the “NCA” or “Act”) is an innovative but challeng... more The National Credit Act 34 of 2005 (hereinafter the “NCA” or “Act”) is an innovative but challenging piece of legislation. It provides for various novel approaches to debt enforcement in respect of credit agreements and has introduced debt-relief measures in respect of over-indebtedness and reckless credit that are new to South African consumer credit legislation. It is thus inevitable that in applying the provisions of the Act various issues will arise that will require interpretation and, therefore, intense scrutiny. In the recent judgment of BMW Financial Services (SA) (Pty) Ltd v Donkin, Wallis J was required to scrutinize various aspects relating to debt review and debt enforcement in order to decide the consumer’s fate as influenced by the NCA (66; and see also s 130(1)(a)).

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Research paper thumbnail of Perspectives on the Termination of Debt Review in Terms of Section 86(10) of the National Credit Act 34 of 2005

Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad, 2011

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Research paper thumbnail of Over-Indebtedness and Discretion of Court to Refer to Debt Counsellor: Standard Bank of South Africa Ltd v Hales 2009 3 SA 315 (D)

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Research paper thumbnail of Redress for Consumers in terms of the Consumer Protection Act 68 of 2008: A Comparative Discussion

Journal of International Commercial Law and Technology

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Research paper thumbnail of Marimuthu Munien V BMW Financial Services (SA) (PTY) LTD Unreported Case No 16103/08 (KZD)

Section 129(1)(a) read with section 130(1) and 130(3) of the National Credit Act 34 of 2005 (the ... more Section 129(1)(a) read with section 130(1) and 130(3) of the National Credit Act 34 of 2005 (the NCA) provides that, as a required procedure before debt enforcement, a credit provider must draw the default to the consumer's notice in writing and propose that the consumer refer the credit agreement to a debt counsellor, alternative dispute resolution agent, consumer court or ombud with jurisdiction, with the intent that the parties resolve any dispute under the agreement or develop and agree on a plan to bring the payments under the agreement up to date. Even though section 129(1)(a) is silent as to the method by which the default should be brought to the consumer's notice, section 130(1)(a) provides clarity by requiring the section 129(1)(a) notice to be delivered. It appears that a credit provider who fails to comply with the provisions of section 129(1)(a) prior to debt enforcement by means of litigation will be in a procedural predicament as the credit provider will not p...

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Research paper thumbnail of Perspectives on the South African responsible lending regime and the duty to conduct pre-agreement assessment as a responsible lending practice

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Research paper thumbnail of Challenges to the South African corporate leniency policy and cartel enforcement

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Research paper thumbnail of Wesbank v Deon Winston Papier and the National Credit Regulator (unreported case no 1456/10 (WCC))

The National Credit Act 34 of 2005 (the NCA) aims to address and prevent the overindebtedness of ... more The National Credit Act 34 of 2005 (the NCA)
aims to address and prevent the overindebtedness
of consumers and to provide mechanisms for resolving overindebtedness based on the principle of satisfaction by the consumer of all responsible obligations. In this regard it provides inter alia for the mechanism of debt review during which a debt counsellor reviews the debt situation of a consumer in order to determine if the consumer is over-indebted and to attempt to assist the consumer in obtaining debt relief in the form of a consensual debt re-arrangement agreement or court-ordered debt re-structuring. During this process the consumer and credit providers concerned are obliged to comply with any reasonable requests by the debt
counsellor to facilitate the evaluation of the consumer's state of indebtedness and the prospects of responsible debt re-arrangement, and to participate in good faith in
the review and any negotiations designed to result in responsible debt rearrangement.

Bookmarks Related papers MentionsView impact

Research paper thumbnail of DEBT COUNSELLING V DEBT ENFORCEMENT: SOME PROCEDURAL QUESTIONS ANSWERED BMW Financial Services (SA) (Pty) Ltd v Donkin 2009 6 SA 63 (KZD

The National Credit Act 34 of 2005 (hereinafter the “NCA” or “Act”) is an innovative but challeng... more The National Credit Act 34 of 2005 (hereinafter the “NCA” or “Act”) is an innovative but challenging piece of legislation. It provides for various novel approaches to debt enforcement in respect of credit agreements and has introduced debt-relief measures in respect of over-indebtedness and reckless credit that are new to South African consumer credit legislation. It is thus inevitable that in applying the provisions of the Act various issues will arise that will require interpretation and, therefore, intense scrutiny. In the recent judgment of BMW Financial Services (SA) (Pty) Ltd v Donkin, Wallis J was required to scrutinize various aspects relating to debt review and debt enforcement in order to decide the consumer’s fate as influenced by the NCA (66; and see also s 130(1)(a)).

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Research paper thumbnail of Perspectives on the Termination of Debt Review in Terms of Section 86(10) of the National Credit Act 34 of 2005

Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad, 2011

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Research paper thumbnail of Over-Indebtedness and Discretion of Court to Refer to Debt Counsellor: Standard Bank of South Africa Ltd v Hales 2009 3 SA 315 (D)

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Research paper thumbnail of Redress for Consumers in terms of the Consumer Protection Act 68 of 2008: A Comparative Discussion

Journal of International Commercial Law and Technology

Bookmarks Related papers MentionsView impact

Research paper thumbnail of Marimuthu Munien V BMW Financial Services (SA) (PTY) LTD Unreported Case No 16103/08 (KZD)

Section 129(1)(a) read with section 130(1) and 130(3) of the National Credit Act 34 of 2005 (the ... more Section 129(1)(a) read with section 130(1) and 130(3) of the National Credit Act 34 of 2005 (the NCA) provides that, as a required procedure before debt enforcement, a credit provider must draw the default to the consumer's notice in writing and propose that the consumer refer the credit agreement to a debt counsellor, alternative dispute resolution agent, consumer court or ombud with jurisdiction, with the intent that the parties resolve any dispute under the agreement or develop and agree on a plan to bring the payments under the agreement up to date. Even though section 129(1)(a) is silent as to the method by which the default should be brought to the consumer's notice, section 130(1)(a) provides clarity by requiring the section 129(1)(a) notice to be delivered. It appears that a credit provider who fails to comply with the provisions of section 129(1)(a) prior to debt enforcement by means of litigation will be in a procedural predicament as the credit provider will not p...

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Research paper thumbnail of Perspectives on the South African responsible lending regime and the duty to conduct pre-agreement assessment as a responsible lending practice

Bookmarks Related papers MentionsView impact

Research paper thumbnail of Challenges to the South African corporate leniency policy and cartel enforcement

Bookmarks Related papers MentionsView impact

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