FOR CONSIDERATION BY THE PORTFOLIO COMMITTEE ON TRADE AND INDUSTRY POSSIBLE AMENDMENTS TO THE NATIONAL CREDIT BILL [B18 – 2005]
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6 October 2005 |
CLAUSE 1
1. On page 8, from line 38, to omit the definition of "civil court"
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‘‘ |
2. On page 9, in line 2, after "mortgage", to insert "agreement".
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‘‘ consumer’’, in respect of a credit agreement to which this Act applies, means—(a) the party to whom goods or services are sold under a discount transaction, incidental credit agreement or instalment agreement; (b) the party to whom money is paid, or credit granted, under a pawn transaction; (c) the party to whom credit is granted under a credit facility; (d) the mortgagor under a mortgage agreement; (e) the borrower under a secured loan; (f) the lessee under a lease; (g) the guarantor under a credit guarantee; or (h) the party to whom or at whose direction money is advanced or credit granted under any other credit agreement; |
3. On page 9, in line 47, after "mortgage", to insert "agreement".
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‘‘ credit provider’’, in respect of a credit agreement to which this Act applies,means— (a) the party who supplies goods or services under a discount transaction, incidental credit agreement or instalment agreement; (b) the party who advances money or credit under a pawn transaction; (c) the party who extends credit under a credit facility; (d) the mortgagee under a mortgage agreement; (e) the lender under a secured loan; (f) the lessor under a lease; (g) the party to whom an assurance or promise is made under a credit guarantee; (h) the party who advances money or credit to another under any other credit agreement; or (i) any other person who acquires the rights of a credit provider under a credit agreement after it has been entered into; |
4. On page 9, in line 59, to omit "union" and to substitute "co-operative".
5. On page 9, to omit line 60, and to substitute "financial services to its members".
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‘‘ credit [ |
6. On page 10, in line 20, after "income" to insert "or".
7. On page 20, in line 22, after "disaster" to omit "or"
8. On page 10, from line 23, to omit paragraph (d) and to substitute:
"affecting the consumer, a person who is dependent upon the consumer or a person for whom the consumer is financially responsible;"
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‘‘emergency loan’’ means a credit agreement entered into by a consumer tofinance costs arising from or associated with— (a) a death, illness or medical condition; (b) unexpected loss or interruption of income; or (c) catastrophic loss of or damage to home or property due to fire, theft, or natural disaster; [ [(d) any other similar unanticipated life event affecting the consumer, a person who is dependent upon the consumer or a person for whom the consumer is financially responsible] affecting the consumer, a person who is dependent upon the consumer or a person for who the consumer is financially responsible; |
9. On page 10, from line 28, to omit the definition of "incidental credit agreement" and to substitute:
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"incidental credit agreement " means an agreement, irrespective of its form, in terms of which an account was tendered for goods or services that have been provided to the consumer, or goods or services that are to be provided to a consumer over a period of time and either or both of the following conditions apply:(a) a fee, charge or interest became payable when payment of an amount charged in terms of that account was not made on or before a determined period or date; or (b) two prices were quoted for settlement of the account, the lower price being applicable if the account is paid on or before a determined date, and the higher price being applicable due to the account not having been paid by that date. |
10. On page 10, in line 35, to omit "34(1)" and to substitute" 25(1)(a)"
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‘‘inspector’’ means a person appointed as such in terms of section [ |
11. On page 10, in line 38, to omit "and"
12. On page 10, in line 44, after "agreement" to insert "and"
13. On page 10, after line 44, to add the following paragraph:
"(d) interest, fees or other charges are payable to the credit provider in respect of the agreement, or the amount that has been deferred;"
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‘‘ instalment agreement’’ means a sale of movable property in terms of which—(a) all or part of the price is deferred and is to be paid by periodic payments; (b) possession and use of the property is transferred to the consumer; [ (c) ownership of the property either— (i) passes to the consumer only when the agreement is fully complied with; or (ii) passes to the consumer immediately subject to a right of the credit provider to re-possess the property if the consumer fails to satisfy all of the consumer’s financial obligations under the agreement; and (d) interest, fees or other charges are payable to the credit provider in respect of the agreement, or the amount that has been deferred |
14. On page 10, in line 46, after "unincorporated" to insert "other than stokvels"
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‘‘ juristic person’’ includes a partnership, association or other body of personscorporate or unincorporated other than stokvels, and a trust if— (a) there are three or more individual trustees; or (b) the trustee is itself a juristic person; |
15. On page 11, in line 11, to omit "(1).
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‘‘ low income housing’’ includes any housing provided in terms of a housingdevelopment program, housing assistance measure or any other measure or arrangement designed to— (a) facilitate access to housing or housing delivery; or (b) rehabilitate or upgrade existing housing stock, or related municipal infrastructure and services, for the benefit of persons contemplated in section 13 |
16. On page 11, in line 21, to omit the definition of "mortgage" and to substitute "means a pledge of immovable property that serves as security for a mortgage agreement"
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‘‘mortgage’’ [ |
17. On page 11, after line 21, to insert the following definition:
"mortgage agreement" means a credit agreement that is secured by a pledge of immovable property".
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"mortgage agreement" means a credit agreement secured by a pledge of immovable property. |
18. On page 11, from line 22, to omit the definition of "non-returnable goods".
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[‘‘non-returnable goods’’ (a) are prohibited in terms of any public regulation from being returned to a seller once they have been delivered to a consumer; or (b) after having been delivered to the consumer have been partially or entirely eaten, consumed, depleted or destroyed, disassembled, physically altered, or affixed, attached, joined or added to, blended or combined with, or embedded within, other goods or property;] |
19. On page 11, from line 39, to omit the definition of "outstanding account".
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[‘‘outstanding account’’ (a) a fee, charge or interest becomes payable if payment of any amount charged on that statement of account is deferred beyond a determined period or date; or (b) two prices are quoted for settlement of the account, the lower price being applicable if the account is paid on or before a determined date, and the higher price being applicable if the account is paid after that date;] |
20. On page 12, from line 1, to omit the definition of "prepaid transaction".
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[‘‘prepaid transaction’’ (a) A fee, charge or interest becomes payable if payment of any part of the price is deferred beyond a determined period or date; or (b) the price for the goods or service may be paid by a single payment before a determined date or in instalments, and if the price is paid by instalments, the total amount to be paid is greater than the price if paid by a single payment;] |
21. On page 12, in line 14, to omit "wholly" and to substitute "principally".
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‘‘ private dwelling’’ means any part of a formal or informal structure that isoccupied as a residence, or any part of a structure or outdoor living area that is accessory to, and used [ |
22. On page 12, in line 15 after "Act" to insert ", other than an act or omission that constitutes an offence under this Act,"
23. On page 12, in line 18, after "bureau" to insert "or" and to omit "or employer";
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‘‘ prohibited conduct’’ means an act or omission in contravention of this Act , other than an act or omission that constitutes an offence under this Act, by—(a) an unregistered person who is required to be registered to engage in such an act; or (b) a credit provider, credit bureau, or debt counsellor [ |
24. On page 13, in line 1, to omit "small" and to substitute "short".
25. On page 13, in line 1, to omit "telephonic" and to substitute "telecommunication".
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‘‘sms’’ means a [ |
26. On page 13, in line 7, after "credit" to insert "agreements".
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‘‘ statutory exception’’ means a provision of this Act that specifically provides forexceptional treatment of developmental credit agreements; |
CLAUSE 2
1. On page 13, from line 35, to omit subsection (3) and to substitute:
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2. (3) If a provision of this Act requires a document to be signed or initialed by a party to a credit agreement, that signing or initialing may be effected by use of—(a) an advanced electronic signature, as defined in the Electronic Communications Act, 2002 (Act No. 25 of 2002); or (b) an electronic signature as defined in the Electronic Communications Act, 2002 (Act No. 25 of 2002), provided that— (i) the electronic signature is applied by each party in the physical presence of the other party or an agent of the party; and (ii) the credit provider must take reasonable measures to prevent the use of the consumer’s electronic signature for any purpose other than the signing or initialing of the particular document that the consumer intended to sign or initial." |
CLAUSE 4
1. On page 14, in line 55, after "turnover " to insert:
", together with the combined asset value or annual turnover of all related juristic persons"
2. On page 15, in line 4, to omit "or"
3. On page 15, in line 6, after "Africa" to insert "or"
4. On page 15, after line 6, to insert the following paragraph:
"(d) a credit agreement in respect of which the credit provider is located outside the Republic, approved by the Minister on application by the consumer in the prescribed manner and form"
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4. (1) Subject to sections 5 and 6, this Act applies to every credit agreement betweenparties dealing at arm’s length and made within, or having an effect within, the Republic, except— (a) a credit agreement in terms of which the consumer is— (i) a juristic person whose asset value or annual turnover , together with the combined asset value or annual turnover of all related juristic persons, at the time the agreement is made, equals or exceeds the threshold value determined by the Minister in terms of section 7(1); (ii) the state; or (iii) an organ of state; (b) a large agreement, as described in section 9(4), in terms of which the consumer is a juristic person whose asset value or annual turnover is, at the time the agreement is made, below the threshold value determined by the Minister in terms of section 7(1); [ (c) a credit agreement in terms of which the credit provider is the Reserve Bank of South Africa; or (d) a credit agreement in respect of which the credit provider is located outside the Republic, approved by the Minister on application by the consumer in the prescribed manner and form. |
5. On page 15, after line 31, to insert a new subsection:
"(d) a juristic person is related to another juristic person if
(i) one of them has direct or indirect control over the whole or part of the business of the other; or
(ii) a person has direct or indirect control over both of them."
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(2) For greater certainty in applying subsection (1)— (a) the asset value or annual turnover of a juristic person at the time a credit agreement is made, is the value stated as such by that juristic person at the time it applies for or enters into that agreement; (b) in any of the following arrangements, the parties are not dealing at arm’s length: (i) a shareholder loan or other credit agreement between a juristic person, as consumer, and a person who has a controlling interest in that juristic person, as credit provider; (ii) a loan to a shareholder or other credit agreement between a juristic person, as credit provider, and a person who has a controlling interest in that juristic person, as consumer; (iii) a credit agreement between natural persons who are in a familial relationship and— (aa) are co-dependent on each other; or (bb) one is dependent upon the other; and (iv) any other arrangement— (aa) in which each party is not independent of the other and consequently does not necessarily strive to obtain the utmost possible advantage out of the transaction; or (bb) that is of a type that has been held in law to be between parties who are not dealing at arm’s length; and (c) this Act applies to a credit guarantee only to the extent that this Act applies to a credit facility or credit transaction in respect of which the credit guarantee is granted; (d) a juristic person is related to another juristic person if (i) one of them has direct or indirect control over the whole or part of the business of the other; or (ii) a person has direct or indirect control over both of them. |
5. On page 15, from line 55, to omit subsection (6) and to substitute:
"(6) For the purposes of this Act, if a consumer pays fully or partially for goods or services through a charge against a credit facility, which is provided by a third party, the person who sells the goods or services is not regarded to have entered into a credit agreement with the consumer merely by virtue of that payment;"
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4. (6) [(6) For the purposes of this Act, if a consumer pays fully or partially for goods or services through a charge against a credit facility, which is provided by a third party, the person who sells the goods or services is not regarded to have entered into a credit agreement with the consumer merely by virtue of that payment; |
CLAUSE 5
NEW CLAUSE
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Limited application of the Act to incidental credit agreements (5)(1) Only the following provisions of this Act apply with respect to an incidental credit agreement:
(e) Chapter 5, part C, subject to subsection (3)(a). (f) Chapter 5, parts D and E, once the incidental credit agreement is deemed to have been made in terms of subsection (2); and (g) Chapter 6, parts A and C. (2) The parties to an incidental credit agreement are deemed to have made that agreement on the date that is 20 business days after –
unless the consumer has fully paid the settlement value before that date. (3) A person may only charge or recover a fee, charge or interest - (a) in respect of a deferred amount under an incidental credit agreement as provided for in section 101(d), (f) and (g) subject to any maximum rates of interest imposed in terms of section 105; or– (b) in respect of an unpaid amount contemplated in paragraph (a) of the definition of "incidental credit agreement" only if the credit provider has disclosed, and the consumer has accepted, the amount of such a fee, charge or interest, or the basis on which it may become payable, on or before the date on which the relevant goods or services were supplied" |
CLAUSE 8
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8. (2) An agreement, irrespective of its form, is not a credit agreement if it is—(a) a policy of insurance or credit extended by an insurer solely to maintain the payment of premiums on a policy of insurance; ; (b) a lease of immovable property; or (c) a transaction between a stokvel and a member of that stokvel in accordance with the rules of that stokvel. |
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8. (3)(b) any charge, fee or interest is payable to the credit provider in respect of—[(i) the agreement;] (ii) any amount deferred as contemplated in paragraph (a)(ii)(aa); or (iii) any amount billed as contemplated in paragraph (a)(ii)(bb) and not paid within the time provided in the agreement. |
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8. (4) An agreement, irrespective of its form but not including an agreementcontemplated in subsection (2), constitutes a credit transaction if it is— (a) a pawn transaction or discount transaction; (b) an incidental credit agreement, subject to section 5(3); (c) an instalment agreement; (d) a mortgage agreement or secured loan; (e) a lease; or (f) any other agreement, other than a credit facility or credit guarantee, in terms of which payment of an amount owed by one person to another is deferred, and any charge, fee or interest is payable to the credit provider in respect of— (i) the agreement; or (ii) the amount that has been deferred. |
4. On page 17, after line 45, to insert:
"If, as contemplated in subsection (1)(d), a particular credit agreement constitutes both a credit facility as described in subsection (3) and a credit transaction in terms of subsection (4)(d) –
(a) subject to paragraph (b) that agreement is equally subject to any provision of this Act that applies specifically or exclusively to either –
(i) credit facilities; or
(ii) mortgage agreements or secured loans, as the case may be, and
(b) for the purpose of applying –
(i) section 108 that agreement must be regarded as a credit facility; or
(ii) section 4(1)(b) read with section 9(4), that agreement must be regarded as a large agreement if it is a mortgage agreement."
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8. (6) If, as contemplated in subsection (1)(d), a particular credit agreement constitutes both a credit facility as described in subsection (3) and a credit transaction in terms of subsection (4)(d) – (a) subject to paragraph (b) that agreement is equally subject to any provision of this Act that applies specifically or exclusively to either – (i) credit facilities; or (ii) mortgage agreements or secured loans, as the case may be, and (b) for the purpose of applying – (i) section 108 that agreement must be regarded as a credit facility; or (ii) section 4(1)(b) read with section 9(4), that agreement must be regarded as a large agreement if it is a mortgage agreement. |
CLAUSE 9
1. On page 17, in line 54, after "mortgage" to insert "agreement".
2. On page 18, in line 1, after "mortgage" to insert "agreement".
3. On page 18, in line 5, after "mortgage" to insert "agreement".
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9. (1) For all purposes of this Act, every credit agreement is characterised as a small
agreement, an intermediate agreement, or a large agreement, as described in subsections (2), (3) and (4) respectively. (2) A credit agreement is a small agreement if it is— (a) a pawn transaction; (b) a credit facility, if the credit limit under that facility falls at or below the lower of the thresholds established in terms of section 7(1)(b); or (c) any other credit transaction except a mortgage agreement or a credit guarantee, and the principal debt under that transaction or guarantee falls at or below the lower of the thresholds established in terms of section 7(1)(b). (3) A credit agreement is an intermediate agreement if it is— (a) a credit facility, if the credit limit under that facility falls above the lower of the thresholds established in terms of section 7(1)(b); or (b) any credit transaction except a pawn transaction, a mortgage agreement or a credit guarantee, and the principal debt under that transaction or guarantee falls between the thresholds established in terms of section 7(1)(b). (4) A credit agreement is a large agreement if it is— (a) a mortgage agreement; or (b) any other credit transaction except a pawn transaction or a credit guarantee, and the principal debt under that transaction or guarantee falls at or above the higher of the thresholds established in terms of section 7(1)(b). |
CLAUSE 10
1. On page 18, in line 16, to omit "union or".
2. On page 18, in line 17, to omit "union or".
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10. (1) A credit agreement, irrespective of its form, type or category, is adevelopmental credit agreement if— (a) at the time the agreement is entered into, the credit provider holds a supplementary registration certificate issued in terms of an application contemplated in section 41; and (b) the credit agreement is— (i) between a credit [ (ii) an educational loan; or (iii) entered into for any of the following purposes— (aa) development of a small business; (bb) the acquisition, rehabilitation, building or expansion of low income housing; or (cc) any other purpose prescribed in terms of subsection (2)(a). |
CLAUSE 15
1. On page 20, in line 28, to omit "related".
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15. The National Credit Regulator must enforce this Act by—(a) promoting informal resolution of disputes arising in terms of this Act between consumers on the one hand and a credit provider or credit bureau on the other, without intervening in or adjudicating any such dispute; (b) receiving complaints concerning alleged contraventions of this Act; (c) monitoring the consumer credit market and industry to ensure that prohibited conduct [ |
CLAUSE 16
1. On page 20, in line 50 to omit "the Tribunal" and to substitute "a court".
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16. (1) The National Credit Regulator is responsible to increase knowledge of thenature and dynamics of the consumer credit market and industry, and to promote public awareness of consumer credit matters, by— (a) implementing education and information measures to develop public awareness of the provisions of this Act; (b) providing guidance to the credit market and industry by— (i) issuing explanatory notices outlining its procedures, or its non-binding opinion on the interpretation of any provision of this Act; or (ii) applying to [ |
CLAUSE 19
1. On page 22, in line 32, to omit "and objects"
2. On page 22, in line 42, after "members", to insert "at least two of whom must be knowledgeable on consumer matters."
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Governance [ 19. (1) The National Credit Regulator is governed by a Board, consisting of—(a) a member designated by the Cabinet member responsible for finance, to serve until substituted by that Cabinet member; (b) a member designated by the Cabinet member responsible for housing matters, to serve until substituted by that Cabinet member; (c) a member designated by the Cabinet member responsible for social development matters, to serve until substituted by that Cabinet member; (d) a Chairperson appointed by the Minister; (e) a Deputy Chairperson appointed by the Minister; and (f) not more than six other members, at least two of whom must be knowledgeable on consumer matters ,appointed by the Minister. |
CLAUSE 27
1. On page 25, in line 50 to omit paragraph (c).
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Functions of Tribunal 27. The Tribunal or a member of the Tribunal acting alone in accordance with this Actmay— (a) adjudicate in relation to any— (i) application that may be made to it in terms of this Act, and make any order provided for in this Act in respect of such an application; or (ii) allegations of prohibited conduct by determining whether prohibited conduct has occurred and, if so, by imposing a remedy provided for in this Act; (b) grant an order for costs in terms of section 147; [(c) make a declaratory order concerning the interpretation or application of any provision of this Act, when requested to do so on application by the National Credit Regulator or any other person with a material interest in seeking the declaratory order; and] (d) exercise any other power conferred on it by law. |
CLAUSE 40
1. On page 29, in line 5, to omit "that arise from outstanding accounts".
2. On page 29, from line 7, to omit "that arise from outstanding accounts".
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40. (1) A person must apply to be registered as a credit provider if—(a) that person, alone or in conjunction with any associated person, is the credit provider under at least 100 credit agreements, other than incidental credit agreements [ (b) the total principal debt owed to that credit provider under all outstanding credit agreements, other than incidental credit agreements [ outstanding accounts], exceeds the threshold prescribed in terms of section 42(1). |
CLAUSE 41
1. On page 29, in line 48, after "a" to insert "credit".
2. On page 29, in line 49, before "of" to insert "in respect".
3. On page 29, in line 49, after the first "credit" to insert "agreements"
4. On page 29, in line 50, to omit "union, " .
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41. (1) A registered credit provider, or a credit provider who has applied to beregistered in terms of section 40, may apply for supplementary registration as a credit provider in respect of developmental credit agreements if the credit provider— (a) is a close corporation, company, credit [ (b) is registered with the South African Revenue Service; and (c) does not employ any person in a controlling or managerial capacity who would be disqualified from individual registration in terms of section 46(3). |
CLAUSE 43
"(d) is registered with the South African Revenue Services."
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43. (3) The National Credit Regulator must not register a person as a credit bureau unless that person—(a) maintains and imposes [ (b) has, in the opinion of the National Credit Regulator, sufficient human, financial and operational resources to enable it to function efficiently and to carry out effectively its functions in terms of this Act, or presents to the National Credit Regulator a credible plan to acquire or develop those resources; [ (c) has adopted procedures to ensure that questions, concerns and complaints of consumers or credit providers are treated equitably and consistently in a timely, efficient and courteous manner, or presents to the National Credit Regulator a credible plan to acquire or develop those procedures; and (d) is registered with the South African Revenue Services. |
CLAUSE 46
1. On page 31, to omit line 37
2. On page 32, after line 2, to insert:
"(4) In addition to the disqualifications set out in subsection (3), a natural person may not be registered as a debt counsellor if that person is –
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46. (1) A natural person may not be registered as a credit bureau.(2) A natural person may not be registered as a credit provider if that person is an unrehabilitated insolvent. (3) A natural person may not be registered as a credit provider or debt counsellor if that person— (a) is under the age of 18 years; [(b) is a public servant;] (c) as a result of a court order, is listed on the register of excluded persons in terms of section 14 of the National Gambling Act, 2004 (Act No. 7 of 2004); (d) is subject to an order of a competent court holding that person to be mentally unfit or disordered; (e) has ever been removed from an office of trust on account of misconduct relating to fraud or the misappropriation of money, whether in the Republic or elsewhere; (f) has ever been a director or member of a governing body of an entity at the time that such an entity has— (i) been involuntarily deregistered in terms of a public regulation; (ii) brought the consumer credit industry into disrepute; or (iii) acted with disregard for consumer rights generally; (g) has been convicted during the previous 10 years, in the Republic or elsewhere, of— (i) theft, fraud, forgery or uttering a forged document, perjury, or an offence under the Prevention and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004), or comparable legislation of another jurisdiction; (ii) a crime involving violence against another natural person; or (iii) an offence in terms of this Act, a repealed law or comparable provincial legislation, and has been sentenced to imprisonment without the option of a fine unless the person has received a grant of amnesty or free pardon for the offence. (4) In addition to the disqualifications set out in subsection (3), a natural person may not be registered as a debt counsellor if that person is –
(i) debt collection; (ii) the operation of a credit bureau; (iii) credit provision; or (iv) any other activity prescribed by the Minister on the grounds that there is an inherent conflict of interest between that activity and debt counselling. (4) The National Credit Regulator must deregister a natural person if the registrant becomes disqualified in terms of this section at any time after being registered. |
CLAUSE 48
1. On page 32, in line 40, to omit " and"
2. On page 32, in line 44, after authority to insert "and"
3. On page 32, after line 44, to add the following paragraph:
"(c) registration with the South African Revenue Services."
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48. (1) If a person qualifies to be registered as a credit provider, the National CreditRegulator must further consider the application, relating to the following criteria: (a) to the extent it is appropriate having regard to the nature of the applicant, the commitments, if any, made by the applicant or any associated person in terms of black economic empowerment considering the purpose, objects and provisions of the Broad-based Black Economic Empowerment Act, 2003 (Act No. 53 of 2003); [ (b) the commitments, if any, made by the applicant or any associated person in connection with combating over-indebtedness, including whether the applicant or any associated person has subscribed to any relevant industry code of conduct approved by a regulator or regulatory authority; and (c) registration with the South African Revenue Services. |
CLAUSE 51
1. On page 34, in line 10, to omit "contemplated in section 40(2)(c)"
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51. (1) The Minister may prescribe—(a) an application fee to be paid in connection with any application in terms of this Chapter; (b) an initial registration fee to be paid upon registration; and (c) an annual registration renewal fee to be paid by registrants. (2) The Minister may prescribe different fees in terms of subsection (1) for different categories of applicants or registrants, including but not limited to group registration and registration renewal fees based on the number of locations at or from which persons [ |
CLAUSE 54
1. On page 35, to omit line 48, and to substitute:
" (5) Failure to comply with a notice issued in terms of this section is an offence.".
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54. (1) Subject to subsection (2), the National Credit Regulator may issue a notice inthe prescribed form to any person who, or association of persons, that— (a) is engaging in an activity that, in terms of this Act, requires registration, or offering to engage in such an activity, or holding themselves out as authorised to engage in such an activity; and (b) is not registered in terms of this Act to engage in that activity, requiring that person or association to stop engaging in, offering to engage in or holding themselves out as authorised to engage in, that activity. (2) Before issuing a notice in terms of subsection (1) to a regulated financial institution, the National Credit Regulator must consult with the regulatory authority that issued a license to that regulated financial institution. (3) A notice contemplated in subsection (1) must set out— (a) the name of the person or association to whom the notice applies; (b) details of the nature and extent of the activity concerned; (c) the date from which the unregistered person must discontinue engaging in that activity; (d) the basis of the opinion that the person engaging in that activity is required to be registered; and (e) any penalty that may be imposed in terms of this Act if the person fails to discontinue that activity. (4) Subject to section 59, a notice issued in terms of this section remains in force until— (a) a registration certificate is issued to the person to whom the notice was issued; or (b) the notice is set aside by the Tribunal, or a court upon an appeal or review of a Tribunal decision concerning the notice. [(5) It is an offence under this Act to contravene a notice issued in terms of this section.] (5) Failure to comply with a notice issued in terms of this section is an offence. |
CLAUSE 55
1. On page 36, after line 19, to add:
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55. (6) If a person fails to comply with a compliance notice as contemplated in this section without raising an objection in terms of section 56, the National Credit Regulator may refer the matter-
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CLAUSE 57
1. On page 36, from line 36, to omit subsection (2) and to substitute:
"(2) In any circumstance contemplated in subsection (1) concerning a registrant that is a regulated financial institution, the National Credit Regulator may –
(a) impose conditions on the registration of that person, consistent with its licence;
(b) refer the matter to the regulatory authority that licensed that regulated financial institution, with a request that the regulatory authority review that licence in the circumstances; or
(c) at the request, or with the consent, of the regulatory authority that licensed that regulated financial institution, request the Tribunal to cancel the registration."
2. On page 36, in line 45, after "is" to insert "or may be", after "(2)" to insert "(b)".
3. On page 36, in line 46, omit "and"
4. On page 36, in line 48, after "review". to insert "and"
5. On page 36, after line 48, to add:
"(c) may request, or consent to, the National Credit Regulator filing a request with the Tribunal as contemplated in subsection (2)(c)."
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57. (1) Subject to subsection (2), a registration in terms of this Act may be cancelledby the Tribunal on request by the National Credit Regulator, if the registrant repeatedly— (a) fails to comply with any condition of its registration; (b) fails to meet a commitment contemplated in section 48(1); or (c) contravenes this Act. [(2) In any circumstance contemplated in subsection (1), concerning a registrant that is a regulated financial institution— (a) a request may not be made to the Tribunal to cancel the registration; and (b) the National Credit Regulator may do either or both of the following: (i) impose conditions on the registration of that person, consistent with its licence; or (ii) refer the matter to the regulatory authority that licensed that regulated financial institution with a request that the regulatory authority review that licence in the circumstances.] (2) In any circumstance contemplated in subsection (1) concerning a registrant that is a regulated financial institution, the National Credit Regulator may – (a) impose conditions on the registration of that person, consistent with its licence; (b) refer the matter to the regulatory authority that licensed that regulated financial institution, with a request that the regulatory authority review that licence in the circumstances; or (c) at the request, or with the consent, of the regulatory authority that licensed that regulated financial institution, request the Tribunal to cancel the registration. (3) A regulatory authority to whom a matter is or may be referred in terms of subsection (2)(b)— (a) must conduct a formal review of the registrant’s licence; [(b) to the extent permitted by the legislation in terms of which the registrant is licensed, may suspend that licence pending the outcome of that review and (c) may request, or consent to, the National Credit Regulator filing a request with the Tribunal as contemplated in subsection (2)(c). |
CLAUSE 61
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61. (1) Relative to the treatment of any other consumer or prospective consumer, acredit provider must not unfairly discriminate directly or indirectly against any natural person, juristic person or association of persons on one or more grounds set out in section 9(3) of the Constitution, or one or more grounds set out in Chapter 2 of the Promotion of Equality and Prevention of Unfair Discrimination Act, when— |
2. On page 38, in line 38, to omit "primary or predominant"
3. On page 38, in line 46, after "136" to insert ",which must refer the’ complaint to the Equality Court, if the complaint appears to be valid.
4. On page 38, from line 47, to omit subsection (7).
5. On page 38, in line 51, to omit "The Tribunal or a" and to substitute "A".
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(5) A credit provider may determine for itself any scoring or other evaluative mechanism or model to be used in managing, underwriting and pricing credit risk, provided that any such mechanism or model is not founded or structured upon a statistical or other analysis in which the [ categorisation, differentiation or assessment is a ground of discrimination prohibited in section 9(3) of the Constitution. (6) In respect of an alleged contravention of this section, any person contemplated in section 20(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act, may either— (a) institute proceedings before an equality court, in terms of Chapter 4 of the Promotion of Equality and Prevention of Unfair Discrimination Act; or (b) make a complaint to the National Credit Regulator in terms of section 136, which must refer the’ complaint to the Equality Court, if the complaint appears to be valid. [(7) The provisions of Chapter 3 and section 21 of the Promotion of Equality and Prevention of Unfair Discrimination Act, read with the changes required by the context, apply to any hearing of a complaint referred by the National Credit Regulator to the Tribunal arising out of an alleged contravention of this section.] (8) [ discriminated unfairly against a consumer or prospective consumer if that credit provider— (a) knew or reasonably could have known that the consumer or prospective consumer, or a natural person contemplated in subsection (3), was a historically disadvantaged person; (b) has made a decision contemplated in section 62(1)(a) through (d), with respect to that consumer or prospective consumer; and (c) has refused, or failed without reasonable cause, to respond to a request made in terms of section 62 in respect of that decision. |
CLAUSE 68
1. On page 41, in line 47, after "extent" to insert "permitted or"
2. On page 41, from line 52, to omit subsection (2) and to substitute:
"(3) Failure by a credit bureau to comply with a notice issued in terms of section 55, in relation to this section, is an offence."
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68. (1) Any person who, in terms of this Act, receives, compiles, retains or reports anyconfidential information pertaining to a consumer or prospective consumer must protect the confidentiality of that information, and in particular, must— (a) use that information only for a purpose permitted or required in terms of this Act, other national legislation or applicable provincial legislation; and (b) report or release that information only to the consumer or prospective consumer, or to another person— (i) to the extent permitted or required by this Act, other national legislation or applicable provincial legislation; or (ii) as directed by— (aa) the instructions of the consumer or prospective consumer; or (bb) an order of a court or the Tribunal. [(2) A person referred to in subsection (1)— (a) must report or release confidential information contemplated in subsection (1) in accordance with any written direction from the consumer or prospective consumer; and (b) who discloses confidential information in contravention of subsection (1) or fails to disclose confidential information in contravention of paragraph (a), is guilty of an offence.] (2) Failure by a credit bureau to comply with a notice issued in terms of section 55, in relation to this section, is an offence. |
CLAUSE 69
2. On page 42, in line 11, after "information" to insert "subject to subsection (6)".
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69. (1) The Minister may require the National Credit Regulator to establish andmaintain, in the prescribed manner and form, a single national register of outstanding credit agreements based on the information provided to it in terms of this section. (2) Upon entering into or amending a credit agreement, other than a pawn transaction or [ |
3. On page 42, from line 44, to omit subsection (6) and to substitute
"(6) The Minister may prescribe alternative requirements, in place of any of those set out in subsection (2), with respect to developmental credit agreements."
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[(6) The National Credit Regulator, its Board or any employee or agent appointed, authorised or required to carry out any function relating to the establishment and maintenance of the national register of credit agreements may not be held liable for any loss, cost, expense, damage or injury to any person or association that results from anything done or omitted in good faith in terms of this section (6) The Minister may prescribe alternative requirements, in place of any of those set out in subsection (2), with respect to developmental credit agreements. |
CLAUSE 70
"(i) not knowingly or negligently provide a report to any person containing inaccurate information."
"(4) The Minister may prescribe-
(a) standards for the filing, retention and reporting of consumer credit information by credit bureaux, in addition to, or in furtherance of, the requirements set out in this section; and
(b) maximum fees that may be charged to a consumer for accessing consumer credit information concerning that person."
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(2) A registered credit bureau must— (a) accept the filing of consumer credit information from any credit provider on payment of the credit bureau’s filing fee, if any; (b) accept without charge the filing of consumer credit information from the consumer concerned for the purpose of correcting or challenging information otherwise held by that credit bureau concerning that consumer; (c) take reasonable steps to verify the accuracy of any consumer credit information reported to it; (d) retain any consumer credit information reported to it for the prescribed period, irrespective of whether that information reflects positively or negatively on the consumer; (e) maintain its records of consumer credit information in a manner that satisfies the prescribed standards; (f) promptly expunge from its records any prescribed consumer credit information that, in terms of the regulations, is not permitted to be entered in its records or is required to be removed from its records; (g) issue a report to any person who requires it for a prescribed purpose or a purpose contemplated in this Act upon payment of the credit bureau’s fee except where the Act explicitly provides that no fee be charged; [ (h) not draw a negative inference about, or issue a negative assessment of, a person’s creditworthiness merely on the basis that the credit bureau has no consumer credit information concerning that person; and (i) not knowingly or negligently provide a report to any person containing inaccurate information. (3) In addition to— (a) the consumer credit information contemplated in subsection (2), a credit bureau may receive, compile and report only other prescribed information in respect of a consumer; and (b) the sources of consumer credit information contemplated in subsection (2), a credit bureau may receive consumer credit information in respect of a consumer only from other prescribed persons. [(4) The Minister may prescribe standards and fees for the filing, retention and reporting of consumer credit information by credit bureaux, in addition to, or in furtherance of, the requirements set out in this section.] (4) The Minister may prescribe- (a) standards for the filing, retention and reporting of consumer credit information by credit bureaux, in addition to, or in furtherance of, the requirements set out in this section; and (b) maximum fees that may be charged to a consumer for accessing consumer credit information concerning that person. (5) For the purpose of monitoring the consumer credit market to detect apparent patterns of reckless credit granting and over-indebtedness, researching the accessibility and use of credit by persons contemplated in section 13(a), and otherwise exercising its mandate to research consumer credit issues and to investigate and enforce compliance with this Act, the National Credit Regulator may— (a) require any credit bureau to provide periodic synoptic reports of aggregate consumer credit information in the prescribed manner and form to the National Credit Regulator, but any such report must not identify any particular consumer or relate a particular consumer to any information so reported; and (b) make further reasonable requests for information from a credit bureau related to the information contemplated in paragraph (a); and (c) analyse information provided to it under this section or section 69. [(6) It is an offence for a credit bureau to contravene this section by knowingly or negligently providing a report to any person containing inaccurate information.] (6) Failure by a credit bureau to comply with a notice issued in terms of section 55, in relation to this section, is an offence. |
CLAUSE 71
1. On page 43, in line 56 after "adjustment" to insert "or judgment"
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Removal of record of debt adjustment or judgment 71. (1) A consumer whose debts have been re-arranged in terms of Part D of thisChapter, may apply to a debt counsellor at any time for a clearance certificate relating to that debt re-arrangement. |
2. On page 44, after line 24, to add the following subsection:
"(6) Upon receiving a copy of a court order rescinding any judgment, a credit bureau must expunge from its records all information relating to that judgment."
3. On page 44, from line 25, to omit subsection (6) and to substitute:
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(5) Upon receiving a copy of a clearance certificate, a credit bureau, or the national credit register, must expunge from its records— (a) the fact that the consumer was subject to the relevant debt re-arrangement order or agreement; (b) any information relating to any default by the consumer that may have— (i) precipitated the debt re-arrangement; or (ii) been considered in making the debt re-arrangement order or agreement; and (c) any record that a particular credit agreement was subject to the relevant debt re-arrangement order or agreement. (6) Upon receiving a copy of a court order rescinding any judgment, a credit bureau must expunge from its records all information relating to that judgment. [(6) It is an offence for a credit bureau to— (a) fail to expunge any information as required by this section; or (b) report any information that is required to be expunged after receiving a clearance certificate concerning that information.] (7) Failure by a credit bureau to comply with a notice issued in terms of section 55, in relation to this section, is an offence. |
CLAUSE 72
1. On page 44, in line 39, after "after" to insert "successfully".
2. On page 44, in line 51, to omit the first "the" and to substitute "any"
3. On page 44, in line 51, after "information" to insert "to a registered credit bureau or to the National Credit Register".
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72. (1) Every person has a right to—(a) be advised by a credit provider within the prescribed time before any prescribed adverse information concerning the person is reported by it to a credit bureau, and to receive a copy of that information upon request; (b) inspect any credit bureau, or national credit register, file or information concerning that person— (i) without charge— (aa) as of right once within any period of twelve months; (bb) if so ordered by a court or the Tribunal; and (cc) once within a reasonable period after successfully challenging any information in terms of this section, for the purpose of verifying whether that information has been corrected; and (ii) at any other time, upon payment of the inspection fee of the credit bureau or national credit register, if any; (c) challenge the accuracy of any information concerning that person— (i) that is the subject of a proposed report contemplated in paragraph (a); or (ii) that is held by the credit bureau or national credit register, as the case may be, and require the credit bureau or National Credit Regulator, as the case may be, to investigate the accuracy of any challenged information, without charge to the consumer; and (d) be compensated, by [ |
4. On page 45, in line 5, to omit "(5)", and to substitute "(7)"
5. On page 45, after line 10, to insert:
"(5) A Credit Bureau or the National Credit Register may not report information that is challenged until the challenge has been resolved in terms of subsection (3)(a) or (b)".
6. On page 45, from line 18, to omit subsection (6) and to substitute:
"(6) Failure by a credit bureau to comply with a notice issued in terms of section 55, in relation to this section, is an offence."
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72. (3) If a person has challenged the accuracy of information proposed to be reported toa credit bureau or to the national credit register, or held by a credit bureau or the national credit register, the credit provider, credit bureau or national credit register, as the case may be, must take reasonable steps to seek evidence in support of the challenged information, and within the prescribed time after the filing of the challenge must— (a) provide a copy of any such credible evidence to the person who filed the challenge, or (b) remove the information, and all record of it, from its files, if it is unable to find credible evidence in support of the information, subject to subsection (4)Within 20 business days after receiving a copy of evidence in terms of subsection (3)(a), the person who challenged the information held by a credit provider, credit bureau or national credit register may apply in the prescribed manner and form to the National Credit Regulator to investigate the disputed information as a complaint under section 136. (5) A Credit Bureau or the National Credit Register may not report information that is challenged until the challenge has been resolved in terms of subsection (3)(a) or (b). (5) On application by a credit provider, credit bureau or the National Credit Regulator, as the case may be, the Tribunal may make an order limiting the applicant’s obligations to a consumer in terms of this section if the Tribunal is satisfied that the consumer’s— (a) particular request or requirement is frivolous, unfounded or wholly unreasonable; or (b) history and pattern of such requests or requirements are frivolous or vexatious. [(6) It is an offence under this Act for a credit bureau to refuse to permit a person to exercise their right to inspect a credit bureau’s file in terms subsection (1).] (6) Failure by a credit bureau to comply with a notice issued in terms of section 55, in relation to this section, is an offence. |
NEW CLAUSE
1. On page 45, after line 19, to insert the following clause:
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Verification and removal of consumer credit information 73. (1) The Minister must, within a period of six months after the effective date, prescribe –(a) the nature, time-frame, form and manner in which consumer credit information held by credit bureaux must be reviewed, verified, corrected or removed; and (b) the time-frame and schedule for the exercise by consumers of their rights in terms of section 72(1), within a period of one year after the regulations being promulgated. (2) When prescribing a matter contemplated in subsection (1), the Minister must – (a) consider amongst other things – (i) the predictive nature of such information; and (ii) the socio-economic impact on consumers of the removal of such information; and (b) engage in consultation with affected stakeholders. (3) Any regulations to be made in terms of this section must be submitted to the relevant Parliamentary Committee for the necessary consultation prior to their promulgation. |
CLAUSE 74
1. On page 46, in line 23, to omit "Subsection (2) does" and to substitute "Subsections (2) to (4) do".
2. On page 46, in line 23, after "credit" to insert "agreements".
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74. (4) An employer who, or representative trade union that, enters into an arrangement with a credit provider as contemplated in subsection (3)(b)(i) must not receive any fee, commission, payment, consideration or other monetary benefit in exchange for making that arrangement, or as a consequence of a credit agreement entered into during or as a result of that arrangement.(5) [ |
CLAUSE 75
"(5) In any advertisement concerning the granting of credit, a credit provider must state or set out the interest rate and other credit costs in the prescribed manner and form."
2. On page 46, in line 58, after "credit" to insert "agreements".
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75. (4) An advertisement of the availability of credit, or of goods or services to bepurchased on credit— (a) must comply with this section; (b) must contain any statement required by regulation; (c) must not— (i) advertise a form of credit that is unlawful; (ii) be misleading, fraudulent or deceptive; or (iii) contain any statement prohibited by regulation; and (d) may contain a statement of comparative credit costs to the extent permitted by any applicable law or industry code of conduct, but any such statement must— (i) show costs for each alternative being compared; (ii) show rates of interest and all other costs of credit for each alternative; (iii) be set out in the prescribed manner and form; and (iv) be accompanied by the prescribed cautions or warnings concerning the use of such comparative statements. (5) In any advertisement concerning the granting of credit, a credit provider must state or set out the interest rate and other credit costs in the prescribed manner and form. (5) This section does not apply to developmental credit agreements if— (a) the National Credit Regulator has pre-approved a form of advertising to be used by the credit provider concerned; and (b) the credit provider has used only that pre-approved form of advertising in advertising or promoting goods, services or credit to the particular consumer. (6) When pre-approving any form of advertising as contemplated in subsection (5), the National Credit Regulator must balance the need for efficiency of the credit provider with the principles of this section. |
CLAUSE 76
1. On page 47, in line 7, to omit "written"
2. On page 47, in line 7, after solicitation, to insert "by or on behalf of a credit provider"
3. On page 47, in line 8, to omit "of the following" and to substitute "with the prescribed"
4. On page 47, in line 8, after "information" to insert "for the particular type of solicitation"
5. On page 47, from line 9, to omit paragraphs (a) to (f)
6. On page 47, from line 17, to omit subsection (2)
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76. (1) Any [[(a) The name, business address and registration number, if any, of the credit provider; (b) the nature of the proposed credit agreement; (c) the credit provider’s current annual interest rate and other costs of credit; (d) whether any deposit or security is required; (e) whether any residual payment will be required; and (f) if a credit agent is making the solicitation, the name and address of that agent, and the amount or basis for calculating any commission payable to that agent.] [(2) Any person making an in-person oral solicitation for the purpose of inducing a person to apply for or obtain credit, must provide a written statement containing the information set out in subsection (1).] |
CLAUSE 77
1. Clause rejected.
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[ 77. (1) This section does not apply to an advertisement contemplated in section 75(1).(2) If a person offers goods or services for sale to the public, and indicates in writing that credit is available for the purchase of those goods or services, that person must display a statement in the prescribed manner and form setting out the cost of that credit. (3) In any advertisement concerning the granting of credit, a credit provider must state or set out its interest rate and other credit costs in the prescribed manner and form.] |
CLAUSE 78
1. On page 47, after line 39 to insert:
"provided that any credit extended in terms of paragraph (a) to (c) is reported to the National Credit Register in the prescribed manner and form, and further provided that in respect of any credit extended in terms of paragraph (b), reasonable proof of the existence of the emergency as defined in section 1 is obtained and retained by the credit provider;"
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78. (1) This Part does not apply to a credit agreement in respect of which theconsumer is a juristic person. (2) Sections 81 to 84, and any other provisions of this Part to the extent that they relate to reckless credit, do not apply to— (a) a school loan or a student loan; (b) an emergency loan; (c) a public interest credit agreement; (d) a pawn transaction; (e) an incidental credit agreement; or (f) a temporary increase in the credit limit under a credit facility. provided that any credit extended in terms of paragraph (a) to (c) is reported to the National Credit Register in the prescribed manner and form, and further provided that in respect of any credit extended in terms of paragraph (b), reasonable proof of the existence of the emergency as defined in section 1 is obtained and retained by the credit provider; |
CLAUSE 79
1. On page 48, in line 14, after "facility" to insert "and".
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79. (3) When making a determination in terms of this section, the value of—(a) any credit facility is the settlement value at that time under that credit facility, and ; (b) any credit guarantee is— (i) the settlement value of the credit agreement that it guarantees, if the guarantor has been called upon to honour that guarantee; or (ii) the settlement value of the credit agreement that it guarantees, discounted by a prescribed factor. |
CLAUSE 80
1. On page 48, in line 21, after "made" to insert "or at the time when the amount approved in terms of the agreement is increased"
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80. (1) A credit agreement is reckless if, at the time that the agreement was made or at the time when the amount approved in terms of the agreement is increased —(a) the credit provider failed to conduct an assessment as required by section 81(2), irrespective of what the outcome of such an assessment might have concluded at the time; (b) the credit provider, having conducted an assessment as required by section 81(2), entered into the credit agreement with the consumer despite the fact that the preponderance of information available to the credit provider indicated that— (i) the consumer did not generally understand or appreciate the consumer’s risks, costs or obligations under the proposed credit agreement; or (ii) entering into that credit agreement would make the consumer overindebted. (2) When a determination is to be made whether a credit agreement is reckless or not, the person making that determination must apply the criteria set out in subsection (1) as they existed at the time the agreement was made, and without regard for the ability of the consumer to— (a) meet the obligations under that credit agreement; or (b) understand or appreciate the risks, costs and obligations under the proposed credit agreement, at the time the determination is being made. (3) When making a determination in terms of this section, the value of— (a) any credit facility is the credit limit at that time under that credit facility; (b) any pre-existing credit guarantee is— (i) the settlement value of the credit agreement that it guarantees, if the guarantor has been called upon to honour that guarantee; or (ii) the settlement value of the credit agreement that it guarantees, discounted by a prescribed factor; and (c) any new credit guarantee is the settlement value of the credit agreement that it guarantees, discounted by a prescribed factor. |
CLAUSE 83
1. On page 49, in line 46, after "consumer’s" to insert "rights and"
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83. (1) Despite any provision of law or agreement to the contrary, in any courtproceedings in which a credit agreement is being considered, the court may declare that the credit agreement is reckless, as determined in accordance with this Part. (2) If a court declares that a credit agreement is reckless in terms of section 80(1)(a) or 80(1)(b)(i), the court may make an order— (a) setting aside all or part of the consumer’s right’s and obligations under that agreement, as the court determines just and reasonable in the circumstances; or (b) suspending the force and effect of that credit agreement in accordance with subsection (3)(b)(i). |
CLAUSE 89
6. On page 54, in line 1, to omit "Tribunal or".
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89. (1) This section does not apply to—(a) a pawn transaction; or [(b) a prepaid transaction in terms of which the consumer has fully paid the price fixed for the goods or services to be provided.] (2) Subject to subsections (3) and (4), a credit agreement is unlawful if— (a) at the time the agreement was made the consumer was an unemancipated minor unassisted by a guardian, or was subject to— (i) an order of a competent court holding that person to be mentally unfit; or (ii) an administration order referred to in section 74(1) of the Magistrates’ Courts Act, and the administrator concerned did not consent to the agreement, and the credit provider knew, or could reasonably have determined, that the consumer was the subject of such an order; (b) the agreement results from an offer prohibited in terms of section 73(1); (c) it is a supplementary agreement or document prohibited by section 91(a); (d) at the time the agreement was made, the credit provider was unregistered and this Act requires that credit provider to be registered, [ (e) the credit provider was subject to a notice by the National Credit Regulator or a provincial credit regulator requiring the credit provider— (i) to stop offering, making available or extending credit under any credit agreement, or agreeing to do any of those things; or (ii) to stop offering, making available or extending credit under the particular form of credit agreement used by the credit provider, whether or not this Act requires that credit provider to be registered, and no further appeal or review is available in respect of that notice. (3) Subsection (2)(a) does not apply to a credit agreement if the consumer, or any person acting on behalf of the consumer, directly or indirectly, by an act or omission— (a) induced the credit provider to believe that the consumer had the legal capacity to contract; or (b) attempted to obscure or suppress the fact that the consumer was subject to an order contemplated in that paragraph. (4) Subsection (2)(d) does not apply to a credit provider if— (a) at the time the credit agreement was made, or within 30 days after that time, the credit provider had applied for registration in terms of section 40, and was awaiting a determination of that application; or (b) at the time the credit agreement was made, the credit provider held a valid clearance certificate issued by the National Credit Regulator in terms of section 42(3)(b). (5) If a credit agreement is unlawful in terms of this section, despite any provision of common law, any other legislation or any provision of an agreement to the contrary, a court [ (a) the credit agreement is void as from the date the agreement was entered into; (b) the credit provider must refund to the consumer any money paid by the consumer under that agreement to the credit provider, with interest calculated— (i) at the rate set out in that agreement; and (ii) for the period from the date on which the consumer paid the money to the credit provider, until the date the money is refunded to the consumer; and (c) all the purported rights of the credit provider under that credit agreement to recover any money paid or goods delivered to, or on behalf of, the consumer in terms of that agreement are either— (i) cancelled, unless [ (ii) forfeit to the State, if [ |
CLAUSE 90
1. On page 54, in line 52, after "provider" to insert "in respect of any matter related to the granting of credit in terms of this Act"
2. On page 55, in line 9, to omit "person" and to substitute "credit provider".
3. On page 55, in line 20, to omit "the Tribunal or".
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90. (2)(k) it expresses, on behalf of the consumer—(i) an authorisation for any person acting on behalf of the credit provider to enter any premises for the purposes of taking possession of goods to which the credit agreement relates; or (ii) a grant of a power of attorney in advance to the credit provider in respect of any matter related to the granting of credit in terms of this Act; (iii) an undertaking to sign in advance any documentation relating to enforcement of the agreement, irrespective of whether such documentation is complete or incomplete at the time it is signed; (iv) a consent to a pre-determined value of costs relating to enforcement of the agreement except to the extent that is consistent with Chapter 6; or (v) a limitation of the credit provider’s liability for an action contemplated in subparagraph (iv);
90. (2)(m) it purports to direct or authorise any person engaged in processing payments to give priority to payments for the credit provider over any other [
90. (4) In any matter before it respecting a credit agreement that contains a provision contemplated in subsection (2), [ (a) sever that unlawful provision from the agreement, or alter it to the extent required to render it lawful, if it is reasonable to do so having regard to the agreement as a whole; or (b) declare the entire agreement unlawful as from the date that the agreement, or amended agreement, took effect, and make any further order that is just and reasonable in the circumstances to give effect to the principles of section 89(5) with respect to that unlawful provision, or entire agreement, as the case may be. |
CLAUSE 92
1. On page 56, in line 5, before "For" to insert "Subject only to subsection (4), sections 81 and 101(1)(d)(ii)."
2. On page 56, to omit line 17.
3. On page 56 after line 17 to omit subsection (4) and to substitute::
"(4) If credit is extended for the purchase of an item with limited availability, the credit provider may state that the quotation provided in terms of this section is subject to the continued availability of the item during the period contemplated in subsection (3)."
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92. (3) Subject only to subsection (4), sections 81 and 101(1)(d)(ii) for a period of five business days after the date on which a quotation is presentedin terms of subsection (2)(b)— (a) with respect to a small agreement, the credit provider must, at the request of the consumer, enter into the contemplated credit agreement at or below theinterest rate or credit cost quoted, subject only to sections 81 and 101(1)(d)(ii); (b) with respect to an intermediate or large agreement, the credit provider must, at the request of the consumer, enter into the contemplated credit agreement at an interest rate or credit cost that— (i) is at or below the interest rate or credit cost quoted; or (ii) is higher than the interest rate or credit cost quoted by a margin no greater than the difference between the respective prevailing bank rates on the date of the quote, and the date the agreement is made, [ (4) If credit is extended for the purchase of an item with limited availability, the credit provider may state that the quotation provided in terms of this section is subject to the continued availability of the item during the period contemplated in subsection (3). |
CLAUSE 93
1. On page 56, to omit line 51.
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93. (1) The credit provider must deliver to the consumer, without charge, a copy of adocument that records their credit agreement, transmitted to the consumer in a paper form, or in a printable electronic form. (2) A document that records a small credit agreement must be in the prescribed form. (3) A document that records an intermediate or large agreement— (a) must be in the prescribed form, if any, for the category or type of credit agreement concerned; or (b) if there is no applicable prescribed form, may be in any form that— (i) is determined by the credit provider; and (ii) complies with any prescribed requirements for the category or type of credit agreement concerned. (4) The National Credit Regulator may publish guidelines for methods of assessing whether a statement satisfies any prescribed requirements contemplated in subsection (3). (5) The Minister may prescribe different forms to be used in terms of subsection (2) in respect of— (a) developmental credit agreements; and (b) other credit agreements. [(6) This section does not apply to an outstanding account.] |
CLAUSE 94
1. On page 57, from line 1, to omit paragraph (b).
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94. (1) If a credit facility provides for access to that facility by use of a card, personalidentification code or number or similar identification device, the document that records that credit agreement must set out— (a) a contact telephone number at which the consumer may report the loss or theft of that card, personal identification code or number or other device; and [(b) the extent of the consumer’s liability for purchases charged to that facility after the card, personal identification code or number or other device has been lost or stolen.] |
CLAUSE 102
1. On page 59, in line 39, after "mortgage" to insert "agreement".
2. On page 59, after line 42, to insert the following paragraph:
"(a) an initiation fee as contemplated in section 101(1)(b), if the consumer has been offered and declined the option of paying that fee separately;"
3. On page 59, in line 45, to omit "or"
4. On page 59, in line 46, after "fees" to insert "or"
5. On page 59, after line 46, to insert the following paragraph:
"(f) subject to section 106, the premiums of any credit insurance payable in respect of that credit agreement"
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102. (1) If a credit agreement is an instalment agreement, a mortgage agreement, a secured loan or a lease, the credit provider may include in the principal debt deferred under the agreement any of the following items to the extent that they are applicable in respect of any goods that are the subject of the agreement:(a) an initiation fee as contemplated in section 101(1)(d), if the consumer has been offered and declined the option of paying that fee separately; (a) The cost of an extended warranty agreement; (b) delivery, installation and initial fuelling charges; (c) connection fees, levies or charges; [ (d) taxes, licence or registration fees; or (f) subject to section 106, the premiums of any credit insurance payable in respect of that credit agreement. |
CLAUSE 103
1. On page 60, from line 7, to omit subsection (1) and to substitute:
"(1) Subject to subsection (5), the interest rate applicable to an amount in default or an overdue payment under a credit agreement may not exceed the highest interest rate applicable to any part of the principal debt under that agreement."
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103.[ (a) any part of the unpaid principal debt; and (b) any amount in default, or any overdue payments under that agreement, subject only to subsection (5) (1) Subject to subsection (5), the interest rate applicable to an amount in default or an overdue payment under a credit agreement may not exceed the highest interest rate applicable to any part of the principal debt under that agreement. (2) A credit agreement may provide for an interest charge to become payable or be debited at any time after the day to which it applies. |
CLAUSE 104
1. On page 60, in line 31, to omit "or a credit facility"
2. On page 60, in line 39, after "than" to insert "30 business days after"
3. On page 60, in line 41, after "rate" to insert "and any further prescribed information"
4. On page 60, in line 42, after the first "rate" to insert "as contemplated in section 103(4)"
5. On page 60, from line 43, to omit subsections (4) and (5)
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104. (1) A credit provider must not unilaterally increase—(a) the periodic or incidental service fees, or the method of calculating such fees, that may be charged under the credit agreement; or (b) the rate of interest applicable to a credit agreement, except with respect to a credit agreement with a variable interest rate (2) Except as otherwise provided for in this section, a credit provider must give written notice of at least five business days to the consumer setting out particulars of a change concerning— (a) the rate of interest; (b) the amount of a credit fee or charge; or (c) a change in the frequency or time for payment of a credit fee or charge. (3) In respect of a credit agreement that has a variable interest rate, the credit provider must give written notice to the consumer, no later than20 business days after the day on which a change in the variable interest rate takes effect, setting out— (a) the new rate and any further prescribed information; or (b) if a rate as contemplated in section 103(4) is determined by referring to a reference rate, the new reference rate. [(4) If a credit facility provides that the credit provider may unilaterally change the interest rate under that agreement, and the credit provider gives the consumer notice in accordance with subsection (2) to increase the interest rate— (a) such notice to the consumer must include a statement in the prescribed form informing the consumer of the provisions of this subsection; (b) the consumer, by notice in writing to the credit provider within the prescribed time, may require the credit provider to immediately close the credit facility to further charges; and (c) if the consumer delivers a notice in accordance with paragraph (b), the interest rate applicable to any outstanding obligation under the credit facility, as from the date of that notice, may not exceed the interest rate applicable immediately before the credit provider gave notice of the proposed increase in the interest rate. (5) If a consumer incurs a charge against a credit facility after a notice of an interest rate increase contemplated in subsection (4)(a) takes effect, that charge is subject to interest at the increased rate, irrespective of whether the consumer has given notice to the credit provider in terms of subsection (4)(b).] |
CLAUSE 106
NEW CLAUSE
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Credit insurance 106. (1) A credit provider may require a consumer to maintain during the term of their credit agreement –(i) in the case of a mortgage agreement, insurance cover in respect of the immovable property that is subject to the mortgage, not exceeding the full asset value of that property; or (ii) in any other case, insurance cover against damage or loss of any property other than property referred to in sub-paragraph (i), not exceeding, at any time during the life of the credit agreement, the total of the consumer’s outstanding obligations to the credit provider in terms of their agreement. (2) Despite subsection (1), a credit provider must not offer or demand that the consumer purchase or maintain insurance that is— (a) unreasonable; or (b) at an unreasonable cost to the consumer, having regard to the actual risk and liabilities involved in the credit agreement. (3) In addition to insurance that may be required in terms of subsection (1), a credit provider may offer a consumer optional insurance in relation to the obligations of the consumer under the credit agreement or relating to the possession, use, ownership or benefits of the goods or services supplied in terms of the credit agreement. (4) If the credit provider proposes to the consumer the purchase of a particular policy of credit insurance as contemplated in subsection (1) or (3)—
(i) on a monthly basis in the case of small and intermediate agreements; or (ii) on a monthly or annual basis in the case of large agreements, for the duration of the credit agreement; and (c) in the case of an annual premium the premium must be recovered from the consumer within the applicable year . (5) With respect to any policy of insurance arranged by a credit provider as contemplated in subsection (4), the credit provider must— (a) not add any surcharge, fee or additional premium above the actual cost of insurance arranged by that credit provider; (b) disclose to the consumer in the prescribed manner and form— (i) the cost to the consumer of any insurance supplied; and (ii) the amount of any fee, commission, remuneration or benefit receivable by the credit provider, in relation to that insurance; (c) explain the terms and conditions of the insurance policy to the consumer and provide the consumer with a copy of that policy; and (d) be a loss payee under the policy up to the settlement value at the occurrence of an insured contingency only and that any remaining proceeds of the policy must be paid to the consumer. (6) If the consumer exercises the right under subsection 4(a) to substitute an insurance policy of the consumer’s own choice, the credit provider may require the consumer to provide the credit provider with the following written directions— (a) a valid direction in the prescribed manner and form requiring and permitting the credit provider to pay any premiums due under that policy during the term of the credit agreement on behalf of the consumer as they fall due, and to bill the consumer for the amount of such premiums (i) on a monthly basis for small and intermediate agreements; and (ii) on a monthly or annual basis for large agreements; and (b) a valid direction to the insurer in the prescribed manner and form, naming the credit provider as a loss payee under the policy up to the settlement value at the happening of an insured contingency, and requiring the insurer, if an insured event occurs, to settle the consumer’s obligation under the credit agreement as a first charge against the proceeds of that policy at any time during the term of the credit agreement. (7) If the premiums under an insurance policy contemplated in this section are paid annually, the consumer is entitled, upon settlement of the credit agreement, to a refund of the unused portion of the final year’s premium. |
CLAUSE 107
1. On page 63, to omit line 8.
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107. (1) This Part does not apply in respect of—[(a) a prepaid transaction; or] (b) a credit guarantee, until the time that the credit provider first calls on the guarantor to satisfy an obligation in respect of that guarantee. |
CLAUSE 108
1. On page 63, in line 35 after "mortgage" to insert "agreement".
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108. (1) A credit provider must offer to deliver to each consumer periodic statementsof account in accordance with this section. (2) The maximum period between issuing statements of account is— (a) one month, except as otherwise provided for in this subsection; (b) two months, in respect of an instalment agreement, lease or secured loan; or (c) six months in respect of a mortgage agreement. |
CLAUSE 111
1. On page 64, from line 33, to omit all the words from "within" up to and including "shown" in line 35.
2. On page 64, in line 43, to omit "at least 20 business days after complying" and to substitute "the credit provider has complied".
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111. (1) A consumer may dispute all or part of any particular credit or debit enteredunder a credit agreement, by delivering a written notice to the credit provider [ shown.] (2) A credit provider who receives a notice of dispute in terms of subsection (1)— (a) must give the consumer a written notice either— (i) explaining the entry in reasonable detail; or (ii) confirming that the statement was in error either in whole or in part, and setting out the revised entry; and (b) must not begin enforcement proceedings on the basis of a default arising from the disputed entry— (i) until [ (ii) at any time that the matter is under alternative dispute resolution procedures, or before the Tribunal in terms of section 115. |
CLAUSE 116
1. On page 65, in line 42, to omit "or"
"(c) the change is recorded in writing and signed by the parties; or
(d) any oral change is recorded electromagnetically and subsequently reduced to writing."
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116. Any change to a document recording a credit agreement or an amended creditagreement, after it is signed by the consumer, if applicable, or delivered to the consumer, is void unless— (a) the change reduces the consumer’s liabilities under the agreement; [ (b) after the change is made, unless the change is effected in terms of section 119(1)(c), the consumer signs or initials in the margin opposite the change. (c) the change is recorded in writing and signed by the parties; or (d) any oral change is recorded electromagnetically and subsequently reduced to writing. |
CLAUSE 121
"(1) This section applies only in respect of a lease or an instalment agreement entered into at any location other than the registered business premises of the credit provider"
4. On page 67, in line 50, to omit "the Tribunal" and to substitute " a court"
5. On page 67, in line 51, to omit "the Tribunal" and to substitute "a court"
6. On page 67, in line 53, to omit "the Tribunal" and to substitute "a court"
7. On page 67, in line 55, to omit "Tribunal" and to substitute "court"
8. On page 68, from line 3, to omit subsection (6).
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121. (a) applies only in respect of a lease or an instalment account; but (b) does not apply in respect of non-returnable goods.] (1) This section applies only in respect of a lease or an instalment agreement entered into at any location other than the registered business premises of the credit provider. (2) A consumer may terminate a credit agreement within five business days after the date on which the agreement was signed by the consumer, by— (a) delivering a notice in the prescribed manner to the credit provider; and (b) tendering the return of any money or goods, or paying in full for any services, received by the consumer in respect of the agreement. (3) When a credit agreement is terminated in terms of this section, the credit provider— (a) must refund any money the consumer has paid under the agreement within seven business days after the delivery of the notice to terminate; and (b)[ (i) the reasonable cost of having any goods returned to the credit provider and restored to saleable condition; and (ii) a reasonable rent for the use of those goods for the time that the goods were in the consumer’s possession, unless those goods are in their original packaging and it is apparent that they have remained unused. (4) A credit provider to whom property has been returned in terms of this section, and who has unsuccessfully attempted to resolve any dispute over depreciation of that property directly with the consumer and through alternative dispute resolution under Part A of Chapter 7, may apply to [ (5) If, on an application in terms of subsection (4), [ (a) the depreciation in actual fair market value, as determined by the [ (b) the amount that the credit provider is entitled to charge the consumer in terms of subsection (3)(b). [(6)Adecision by the Tribunal in terms of this section is subject to appeal to, or review by, the High Court to the extent permitted by section 148.] |
CLAUSE 122
1. On page 68, from line 9, to omit "other than an agreement with respect to non-returnable goods"
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122. (1) A consumer may terminate a credit agreement at any time by paying thesettlement amount to the credit provider, in accordance with section 125. (2) In addition to subsection (1), a consumer may terminate an instalment agreement, secured loan or lease of movable property, [ non-returnable goods,] by— (a) surrendering to the credit provider the goods that are the subject of that agreement in accordance with section 127; and (b) paying to the credit provider any remaining amount demanded in accordance with section 127(8). |
CLAUSE 123
1. On page 68, from line 18, to omit subsection (2) and to substitute :
"(2) If a consumer is in default under a credit agreement, the credit provider may take the steps set out in Part C of this Chapter to enforce and terminate that agreement."
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123. (1) A credit provider may terminate a credit agreement before the time providedin that agreement only in accordance with this section. [(2) If a consumer is in default under— (a) an instalment agreement, secured loan or lease, the credit provider may take any steps set out in sections 129 and 131 to enforce and terminate that agreement; or (b) any other credit agreement, the credit provider may take any steps set out in section 131 to enforce and terminate that agreement.] (2) If a consumer is in default under a credit agreement, the credit provider may take the steps set out in Part C of this Chapter to enforce and terminate that agreement. |
CLAUSE 124
1. On page 69, in line 3, to omit the third "the" and to substitute "that".
2. On page 69, in line 4, to omit "a" and to substitute "that"
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124. (1) It is lawful for a consumer to provide, a credit provider to request or a creditagreement to include a written direction authorising the credit provider to make a charge or series of charges contemplated in section 90(2)(n), if such direction meets all the following conditions: (a) The charge or series of charges may be made only against an asset, account, or amount that has been— (i) deposited by or for the benefit of the consumer and held by [ (ii) specifically named by the consumer in writing in the authorisation; |
CLAUSE 125
1. On page 69, in line 34, to omit "and"
2. On page 69, from line 35, to omit paragraph (c) and to substitute:
"(c) in the case of a large agreement–
(aa) three months; and
(bb) the period of notice of settlement if any, given by the consumer."
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125. (1)Aconsumer or guarantor is entitled to settle the credit agreement at any time,with or without advance notice to the credit provider. (2) The amount required to settle a credit agreement is the total of the following amounts: (a) The unpaid balance of the principal debt at that time; (b) the unpaid interest charges and all other fees and charges payable by the consumer to the credit provider up to the settlement date; [ [(c) in the case of a large agreement, an early termination charge equal to no more than the interest that would have been payable under the agreement for a period equal to the difference between— (i) three months; and (ii) the period of notice of settlement, if any, given by the consumer.] (c) in the case of a large agreement– (i) at a fixed rate of interest, an early termination charge no more than a prescribed charge or, if no charge has been prescribed, a charge calculated in accordance with sub-paragraph (ii); or (ii) other than at a fixed rate of interest, an early termination charge equal to no more than the interest that would have been payable under the agreement for a period equal to the difference between – (aa) three months; and (bb) the period of notice of settlement if any, given by the consumer. |
CLAUSE 127
1. On page 69, in line 53, to omit subsection (1)
2. On page 70, from line 17, to omit all the words after "agreement" up to and including "value" in line 19.
3. On page 70, from line 24, to omit paragraph (b).
4. On page 70, in line 23, after "agreement;" to insert "or"
5. On page 70, from line 30, to omit "or if no nominated buyer purchases the goods when they are offered,"
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127. (2) A consumer under an instalment agreement, secured loan or lease— (a) may give written notice to the credit provider to terminate the agreement; and (b) if— (4) Within 10 business days after receiving a notice under subsection (3), the consumer may— (a) unconditionally withdraw the notice to terminate the agreement in terms of subsection (2)(a), and resume possession of any goods that are in the credit provider’s possession, unless the consumer is in default under the credit agreement; [ (b) nominate in writing a person who is prepared to purchase the goods from the credit provider at the estimated value.] (5) If the consumer— (a) responds to a notice as contemplated in subsection (4)(a), the credit provider must return the goods to the consumer unless the consumer is in default under the credit agreement; or [(b) responds to a notice as contemplated in subsection (4)(b), the credit provider— (i) must offer to sell the goods to the person nominated in terms of subsection (4)(b) for the estimated value; and (ii) may, but is not required to, enter into a further credit agreement with that nominated person in connection with such a sale of the goods; or] (c) does not respond to a notice as contemplated in subsection (4),[ nominated buyer purchases the goods when they are offered], the credit provider must sell the goods as soon as practicable for the best price reasonably obtainable. |
CLAUSE 129
"(c) the termination thereof in accordance with section 123"
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129. (1) If the consumer is in default under a credit agreement, the credit provider—(a) may draw the default to the notice of the consumer in writing and propose [ (b) subject to section 130(2), may not commence any legal proceedings to enforce the agreement before— (i) first providing notice to the consumer, as contemplated in paragraph (a), or in section 86 (ii) meeting any further requirements set out in section 130. (2) Subsection (1) does not apply to a credit agreement that is subject to a debt restructuring order, or to proceedings in a court that could result in such an order. (3) Subject to subsection (4), a consumer may— (a) at any time before the credit provider has cancelled the agreement re-instate a credit agreement that is in default by paying to the credit provider all amounts that are overdue, together with the credit provider’s permitted default charges and reasonable costs of enforcing the agreement up to the time of re-instatement; and — (b) after complying with paragraph (a), may resume possession of any property that had been repossessed by the credit provider pursuant to an attachment order. (4) A consumer may not re-instate a credit agreement after— (a) the sale of any property pursuant to— (i) an attachment order; or (ii) surrender of property in terms of section 127; [ (b) the execution of any other court order enforcing that agreement; or (c) the termination thereof in accordance with section 123. |
CLAUSE 130
1. On page 71, in line 51, to omit "Magistrate’s" and to substitute "a".
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Debt procedures in [ 130. (1) Subject to subsection (2), a credit provider may approach the court for anorder to enforce a credit agreement only if, at that time, the consumer is in default and has been in default under that credit agreement for at least 20 business days and— |
2. On page 72, in line 20, to omit "terms of Chapter VIII or IX of the Magistrates’ Courts Act" and to substitute "a court".
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(3) Despite any provision of law or contract to the contrary, in any proceedings commenced in [ a credit agreement to which this Act applies, the court may determine the matter only if the court is satisfied that— |
3. On page 72, from line 57, to omit "or the Tribunal, as the case may be,".
4. On page 72, from line 60, to omit paragraph (d) and to substitute :
"(d) there is a matter pending before the Tribunal, as contemplated in subsection (3)(b), the court may –
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130. (4) In any proceedings contemplated in this section, if the court determines that—(a) the credit agreement was reckless as described in section 80, the court must make an order contemplated in section 83; (b) the credit provider has not complied with the relevant provisions of this Act, as contemplated in subsection (3)(a), or has approached the court in circumstances contemplated in subsection (3)(c) the court must— (i) adjourn the matter before it; and (ii) make an appropriate order setting out the steps the credit provider must complete before the matter may be resumed; (c) the credit agreement is subject to a pending debt review in terms of Part D of Chapter 4, the court may— (i) adjourn the matter, pending a final determination of the debt review proceedings; (ii) order the debt counsellor to report directly to the court, and thereafter make an order contemplated in section 85(b); or (iii) if the credit agreement is the only credit agreement to which the consumer is a party, order the debt counsellor [ [(d) there is a matter pending before the Tribunal, as contemplated in subsection (3)(b), the court must adjourn the matter, pending a determination of the proceedings before the Tribunal; or] (d) there is a matter pending before the Tribunal, as contemplated in subsection (3)(b), the court may – (e) the credit agreement is either suspended or subject to a debt re-arrangement order or agreement, and the consumer has complied with that order or agreement, the court must dismiss the matter. |
CLAUSE 134
1. On page 73, in line 45, after "referred" to insert "only"
2. On page 73, in line 50, to omit "if there is no ombud with jurisdiction as contemplated in paragraph (a), or"
3. On page 74, in line 37, after (4), to insert "(b)"
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134. (1) As an alternative to filing a complaint with the National Credit Regulator interms of section 136, a person may refer a matter that could be the subject of such a complaint as follows: (a) If the credit provider concerned is a financial institution as defined in the Financial Services Ombud Schemes Act, 2004 (Act No. 37 of 2004), the matter— (i) may be referred only to the ombud with jurisdiction to resolve a complaint or settle a matter involving that credit provider, as determined in accordance with sections 13 and 14 of that Act; and (ii) must be procedurally resolved as if it were a complaint in terms of that Act; or (b) [ Services Ombud Schemes Act, 2004 (Act No. 37 of 2004), the matter may be referred to either— (i) a consumer court, for resolution in accordance with this Act and the provincial legislation establishing that consumer court; or (ii) an alternative dispute resolution agent, for resolution by conciliation, mediation or arbitration.
(5) If an alternative dispute resolution agent concludes that either party to conciliation, mediation or arbitration in terms of subsection (4)(b)(ii)(bb) is not participating in that process in good faith, or that there is no reasonable probability of the parties resolving their dispute through that process, the alternative dispute resolution agent must issue a certificate in the prescribed form stating that the process has failed. |
CLAUSE 136
1. Clause rejected.
NEW CLAUSE
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Initiating a complaint to National Credit Regulator 136. (1) Any person may submit a complaint concerning an alleged contravention of this Act to the National Credit Regulator in the prescribed manner and form. (2) The National Credit Regulator may initiate a complaint in its own name." |
CLAUSE 137
1. On page 75, from line 15, to omit paragraph (b)
2. On page 75, in line 19, to omit "or 131".
3. On page 75, in line 21, to omit "or a debt re-arrangement application"
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137. (1) The National Credit Regulator may apply to the Tribunal in the prescribedmanner and form— (a) for an order resolving a dispute over information held by a credit bureau, in terms of Part B of Chapter 4; [(b) for a declaration that all or part of a credit agreement is unlawful in terms of section 89 or 90;] (c) for an order compelling the delivery of a statement of account or a review of a statement in terms of Part D of Chapter 5; (d) to review the conduct of a sale of goods in terms of section 127 [ (e) for leave to bring a complaint [ (f) for an order condoning late filing. |
CLAUSE 140
1. On page 76, in line 38, omit "or"
2. On page 76, in line 40, after "that" to insert "a person has engaged in prohibited conduct;"
3. On page 76, from line 41, to omit subparagraphs (i),(ii) and (iii) and to substitute:
"(c) make an application to the Tribunal if the complaint concerns a matter that the Tribunal may consider on application in terms of any provision of this Act; or
(d) refer the matter to the National Prosecuting Authority, if the complaint concerns an offence in terms of this Act."
4. On page 76, from line 44, to omit subsection (2) and to substitute:
"(2) In the circumstances contemplated in subsection (1)(b), the National Credit Regulator may refer the matter –
5. On page 76, in line 58, omit "(b)".
6. On page 77, in line 5, omit "(b)".
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140. (1) After completing an investigation into a complaint, the National CreditRegulator may— (a) issue a notice of non-referral to the complainant in the prescribed form; [ (b) make a referral in accordance with subsection (2), if the National Credit Regulator believes that a person has engaged in prohibited conduct;- [(i) a person has contravened this Act; (ii) a registrant has breached a condition of its registration; or (iii) a registrant has failed to comply with a requirement of this Act.] (c) make an application to the Tribunal if the complaint concerns a matter that the Tribunal may consider on application in terms of any provision of this Act; or (d) refer the matter to the National Prosecuting Authority, if the complaint concerns an offence in terms of this Act. [(2) In the circumstances contemplated in subsection (1)(b), the National Credit Regulator may refer the matter— (a) to the Tribunal if, in the opinion of the National Credit Regulator, the matter— (i) concerns one or more questions of law or interpretation or application of this Act that have not previously been adjudicated by the Tribunal or a court; (ii) concerns an alleged contravention of section 61; (iii) concerns the operation of a registrant in more than one province; or (iv) concerns a matter of general public interest throughout the Republic; or (b) in any other case, to the consumer court of either— (i) the province within which the consumer resides; or (ii) the province in which the credit provider has its principal place of business in the Republic, as determined by the National Credit Regulator.] (2) In the circumstances contemplated in subsection (1)(b), the National Credit Regulator may refer the matter – (a) to the consumer court of the province in which the consumer resides, or the consumer court of the province in which the credit provider has its principal place of business in the Republic, if there is a consumer court in such a province, if the National Credit Regulator believes that the issues raised by the complaint can be dealt with expeditiously and fully by such a referral; or (b) to the Tribunal. (3) If, in respect of a matter contemplated in subsection (2) court within either applicable province, the National Credit Regulator may refer the matter to either— (a) a consumer court in another province, if the balance of convenience or interests of justice so permit; or (b) the Tribunal. (4) If the National Credit Regulator refers a matter to a consumer court in terms of subsection (2) (a) a different consumer court, or (b) the Tribunal. |
CLAUSE 141
1. On page 77, in line 27, after "61" to insert "or an offence in terms of this Act"
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141. (1) If the National Credit Regulator issues a notice of non-referral in response toa complaint other than a complaint concerning section 61 or an offence in terms of this Act, the complainant concerned may refer the matter directly to— (a) the consumer court of the province within which the complainant resides, or in which the respondent has its principal place of business in the Republic, subject to the provincial legislation governing the operation of that consumer court; or (b) the Tribunal, with the leave of the Tribunal. |
CLAUSE 143
1. On page 78, from line 37, to omit subsection (2)
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143. (1) The following persons may participate in a hearing contemplated in this Part,in person or through a representative, and may put questions to witnesses and inspect any books, documents or items presented at the hearing: (a) The National Credit Regulator; (b) the applicant or complainant, and in the case of a complaint concerning an alleged contravention of section 61, the consumer or prospective consumer, if that person is not the complainant; (c) the respondent; and (d) any other person who has a material interest in the hearing, unless, in the opinion of the presiding member of the Tribunal, that interest is adequately represented by another participant. [(2) If an application is made to the Tribunal for a declaratory order as contemplated in section 24(c)— (a) the Tribunal must publish a notice of that application in the Gazette; and(b) any person who has a material interest in the application may apply to the Chairperson of the Tribunal for leave to participate in the hearing of that application.] |
CLAUSE 148
1. On page 79, in line 22, to omit "subsection (3) and"
2. On page 79, from line 28, to omit all the words from "(i)" up to and including "(ii)" in line 30.
3. On page 79, from line 31, to omit subsection (3).
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148. (1)A participant in a hearing before a single member of the Tribunal may appeala decision by that member to a full panel of the Tribunal. (2) Subject to [ (a) apply to the High Court to review the decision of the Tribunal in that matter; or (b) appeal to the High Court against the decision of the Tribunal in that matter, other than a decision— [(i) of a full panel on a review or appeal of a decision by a single member of the Tribunal; or (ii)] in terms of section 138. [(3) An appeal from, or application to review, a decision of a full panel of the Tribunal concerning an alleged contravention of section 61 is subject to the provisions of section 23 of the Promotion of Equality and Prevention of Unfair Discrimination Act.] |
CLAUSE 150
1. Clause rejected.
NEW CLAUSE
CLAUSE 151
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151. (1) The Tribunal may impose an administrative [penalty] fine only in the circumstances expressly provided for in this Act.(2) An administrative fine imposed in terms of (a) 10 per cent of the respondent’s annual turnover during the preceding financial year; (b) R1 000 000. |
CLAUSE 152
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152. (1) Any decision, judgment or order of the Tribunal may be served, executed andenforced as if it were an order of the High Court, and is binding on— (a) the National Credit Regulator; (b) provincial credit regulators; (c) a consumer court; (d) an alternative dispute resolution agent or the ombud with jurisdiction; (e) a debt counsellor; and (f) a Magistrate’s Court. (2) The National Credit Regulator may institute proceedings in the High Court on its own behalf for recovery of an administrative [ (3)Aproceeding under subsection (2) may not be initiated more than three years after the imposition of the administrative [ |
CLAUSE 156
1. On page 83, in line 48, to omit "firm" and to substitute "juristic person"
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156. (1) It is an offence to disclose any confidential information concerning the affairsof any person or [ (a) in carrying out any function in terms of this Act; or (b) as a result of initiating a complaint or participating in any proceedings in terms of this Act. |
CLAUSE 163
1. Clause rejected.
NEW CLAUSE
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Agents 163. (1) A credit provider must ensure that its employees or agents are trained in respect of the matters to which this Act applies. (2) If a credit provider makes use of agents for solicitation, completion or conclusion of credit agreements, -
(3) If a person who is not an employee or agent of a credit provider, solicits, completes or concludes a credit agreement for or on behalf of a credit provider or a consumer –
(i) must not exceed the prescribed amount; and (ii) may be paid to that person only if the agreement is concluded. |
CLAUSE 164
1. On page 85, from line 31, to omit "the Tribunal or"
2. On page 85, from line 33, to omit subsection (2) and to substitute:
"(2) In any action in a civil court, other than a review or appeal of a Tribunal decision, if a person raises an issue concerning this Act or a credit agreement which the Tribunal
(a) has previously considered and determined, that court
(i) must not consider the merits of that issue; and
(ii) must apply the determination of the Tribunal with respect to the issue; or
(b) has not previously determined, that court
(i) may consider the merits of that issue, or
(ii) refer the matter to the Tribunal for consideration and determination.
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164. (1) Nothing in this Act renders void a credit agreement or a provision of a creditagreement that, in terms of this Act, is prohibited or may be declared unlawful unless [ [(2) If, in any action in a civil court, a party raises an issue concerning conduct that is required or prohibited in terms of this Act, that court must not consider that issue on its merits, and— (a) if the issue raised is one in respect of which the Tribunal has made an order which has not been set aside by a court, the court must apply the determination of the Tribunal to the issue; or (b) otherwise, the court must refer that issue to the Tribunal to be considered on its merits, if the court is satisfied that— (i) the issue has not been raised in a frivolous or vexatious manner; and (ii) the resolution of that issue is required to determine the final outcome of the action.] (2) In any action in a civil court, other than a review or appeal of a Tribunal decision, if a person raises an issue concerning this Act or a credit agreement which the Tribunal (a) has previously considered and determined, that court (i) must not consider the merits of that issue; and (ii) must apply the determination of the Tribunal with respect to the issue; or (b) has not previously determined, that court (i) may consider the merits of that issue, or (ii) refer the matter to the Tribunal for consideration and determination. |
SCHEDULE 2
1. On page 93, from line 4, to omit all the words from "Act" up to and including "members" in line 18
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No. and year of Act |
Short Title |
Extent of amendment |
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Act No. 77 of 1968 |
Stamp Duties Act, 1968 |
The amendment of Item 6 of Schedule 1 by the substitution for paragraph (b) of the following paragraph: ‘‘ (b) an account in terms of a [credit card scheme as defined in section 1 of the Usury Act, 1968 (Act No. 73 of 1968)] credit facility as defined in section 1 of the National Credit Act, 2005, other than such a [scheme] credit facility [which] that is carried on by—(i) a building society; or (ii) a [scheme carried on by] buying association, in respect of which the Commissioner is satisfied that it is operated on co-operative principles for the benefit of its members;’’. |
2. On page 93, after line 64 to insert:
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Act No. 52 of 1998
Act No. 53 of 1998 |
Long –term Insurance Act,1998
Short –term Insurance Act,1998 |
The amendment of section 44 by the insertion of a new subsection 5: "This section does not apply if the long-term policy or its policy benefits as contemplated in subsection (1), is made available for the purpose of protecting the interests of a creditor under a credit agreement to which the National Credit Act, 2005 applies." The amendment of section 43 by the insertion of a new subsection (6): "This section does not apply if the short-term policy or its policy benefits as contemplated in subsection (1), is made available for the purpose of protecting the interests of a creditor under a credit agreement to which the National Credit Act, 2005 applies." "This sectionThe repeal of section 43 to the extent that the section applies to credit agreements to which this Act applies |
3. On page 94, in line 10, to omit "A" and to substitute with "As of 1 June 2006, a" .
4. On page 94, after line 15, to insert a new subparagraph: "(2) With regard to any credit agreement concluded on or before 30 June 2006, which is subject to a payment system that provides preferential treatment to a payment instruction over any other payment instruction in that system, other than preferential treatment prescribed by law, such preferential treatment must be terminated on or before 31 December 2007."
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Act No. 78 of 1998 |
National Payment System Act, 1998 |
1. By the insertion after section 6 of the following: ‘‘ Effectiveness and efficiency of the NationalPayment System 6A. (1) As of 1 June 2006 a person may not change, manipulate, maintain or apply a payment system in any manner that provides preferential treatment to a payment instruction over any other payment instruction in that system, unless such preferential treatment is prescribed by law.(2) With regard to any credit agreement concluded on or before 30 June 2006, which is subject to a payment system that provides preferential treatment to a payment instruction over any other payment instruction in that system, other than preferential treatment prescribed by law, such preferential treatment must be terminated on or before 31 December 2007. (2) A person providing access to or allowing participation in a payment system may not deny any person access to or participation in that payment system if that second person meets the criteria set by the first mentioned person. (3) The criteria referred to in subsection (2) for access to or participation in a payment system must be fair, transparent and equitable. (4) A person who contravenes any provision of this section is guilty of an offence.’’. |
5. On page 94, from line 36, in the far right column, to omit all the words from "The" up to and including "rescind" in line 53 and to substitute:
(a) "Section 8 of the Value-Added Tax Act, 1991 is hereby amended by the substitution for subsection (3) of the following subsection:
"(3) For the purposes of this Act, a credit agreement to which section [13 of the Credit Agreements Act, 1980 (Act 75 of 1980),] 121 of the National Credit Act, 2005 (Act No. XX of 2005) applies, [shall] will be deemed not to be a supply of goods or services [unless the credit receiver] if the consumer has [failed to] exercised the right to rescind [under that section to terminate the] that agreement in the manner and within the time permitted [period available to him under] by that section.".
(b) Section 9 of the Value-Added Tax Act, 1991 is hereby amended by the substitution in subsection (2) for paragraph (b) of the following paragraph:
"(b) where that supply is a supply to which section 8(3) refers, on the day after the last day of the period during which the recipient may exercise the right under [section 13 of the Credit Agreements Act, 1980 (Act 75 of 1980)] section 121 of the National Credit Act, 2005 (Act No. xxx of 2005), to [terminate] rescind the agreement;".
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Act No. 89 of 1991 |
Value-added Tax Act, 1991 |
1.[ ‘‘(3) A supply of goods or services, in respect of which a consumer enters into a credit agreement to which section 121 of the National Credit Act, 2005 applies, is not a supply of goods or services for the purposes of this Act if the consumer has exercised the right to rescind that agreement in the manner and within the time permitted by that section.’’. 2. The amendment of subsection (2) of section 9 by the substitution, in paragraph (b), for the words ‘‘section 13 of the Credit Agreements Act, 1980 (Act No. 75 of 1980)’’ of the words ‘‘section 121 of the National Credit Act, 2005, to rescind’’.] (a) "Section 8 of the Value-Added Tax Act, 1991 is hereby amended by the substitution for subsection (3) of the following subsection: "(3) For the purposes of this Act, a credit agreement to which section [13 of the Credit Agreements Act, 1980 (Act 75 of 1980),] 121 of the National Credit Act, 2005 (Act No. XX of 2005) applies, [shall] will be deemed not to be a supply of goods or services [unless the credit receiver] if the consumer has [failed to] exercised the right to rescind [under that section to terminate the] that agreement in the manner and within the time permitted [period available to him under] by that section.". (b) Section 9 of the Value-Added Tax Act, 1991 is hereby amended by the substitution in subsection (2) for paragraph (b) of the following paragraph: "(b) where that supply is a supply to which section 8(3) refers, on the day after the last day of the period during which the recipient may exercise the right under [section 13 of the Credit Agreements Act, 1980 (Act 75 of 1980)] section 121 of the National Credit Act, 2005 (Act No. xxx of 2005), to [terminate] rescind the agreement; |
SCHEDULE 3
1. On page 97, in line 5, after "date" to insert "except that section 5(3) does not apply in respect of a pre-existing incidental credit agreement."
2. On page 97, in line 29, after agreements, to insert "subject to sub-item (3)".
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Provisions of the Act |
Extent to which the provisions apply to a pre-existing credit agreement |
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Chapter 1 Chapter 2 Chapter 3 Sections 67 and 68 Sections 70 through 72 Sections 95 through 98 Chapter 5 — Part E Sections 122 and 123 Chapters 6 through 9 Schedules 1 and 2 |
Apply fully to a pre-existing credit agreement from the effective date accept that section 5(3) does not apply in respect of a pre-existing incidental credit agreement. |
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Chapter 4 — Part C Sections 92, 94, 99 and 121. Chapter 5 — Part C |
Do not apply to pre-existing credit agreements subject to sub-item (3). |
3. On page 97, in line 38, to omit "and".
4. On page 97, after line 38, to insert the following: "to the extent that a document or statement contemplated in terms of subsections (i) or (ii) above has not already been provided to the consumer by the credit provider prior to the effective date; and"
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(3)With respect to any credit agreement, other than a pawn transaction, made within one year before the effective date, the credit provider must within six months after the effective date— (a) provide the consumer with— (i) a statement that meets the requirements of section 92; and (ii) a document that meets the requirements of section 93; to the extent that a document or statement contemplated in terms of subsections (i) or (ii) above has not already been provided to the consumer by the credit provider prior to the effective date; and (b) introduce a form of periodic statement that meets the requirements of section 108. |
5. On page 98, after line 28, to omit item 8 and to substitute with a new item 8: "(8) As of the effective date,
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8. [ (a) the assets and liabilities of a person contracted by an organ or the state to administer categories of exemptions contemplated in section 15Aof the Usury Act, 1968 (Act No. 73 of 1968), to the extent that those assets and liabilities relate to that purpose, are transferred to and are assets and liabilities, respectively, of the National Credit Regulator; and (b) an individual engaged by a person contemplated in paragraph (a) for the purpose contemplated in that paragraph is an employee of the National Credit Regulator.] (8) As of the effective date,
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