Professional Documents
Culture Documents
SECTION 1
THE CONSUMER'S RIGHT TO REDRESS 2
SECTION 2
CONSUMER PROTECTION LEGISLATION IN SOUTH AFRICA 5
SECTION 3
BUDGETING 12
SECTION 5
REPAYING YOUR DEBTS 22
5.1 Legal consequences of defaulting on debt obligations..................…... 22
5.2 First steps – telephone calls and letters of demand…........................... 22
5.3 Second steps – signing s57 or s58 documents or receiving a
summons...................................................................................... 23
5.4 Judgements and other court orders…………....……....……............... 24
5.5 The painful costs of repaying your debts in terms of a judgement........... 25
SECTION 6
CONSUMER RIGHTS AND REMEDIES IN LEGAL DEBT ACTION 28
6.1 General guidelines…………………………………………………...... 28
6.2 Defences – Prescription and In Duplum…………….………………….. 29
6.3 Debt Collectors' Rules……………………………….………………….. 29
6.4 When and how to have a judgement rescinded…….………………….. 30
6.5 Applying to court to have an emolument (salary) attachment
order rescinded or amended…………………………………………… 30
6.6. Applying to the sheriff to stop the sale of your goods………………….... 31
6.7 Unhappy with attorneys' fees and charges?
Have the account taxed………….................................................... 31
6.8 Under administration and not getting out of debt?.............................. 32
6.9 Too much debt? Find a debt counsellor who can help you…......…….... 33
6.10 Surrendering goods bought on credit........……………………………. 34
SECTION 7
UNDERSTANDING THE CREDIT BUREAUX 35
7.1 Recording credit information on the bureaux…...…………………… 35
7.2 Consumer rights…………………………………..…………………..... 35
7.3 What to do if you are incorrectly listed…………....……………………. 36
It is not only luck or inheritance, or advanced degrees or even intelligence that helps
people to build fortunes. Financial independence and wealth are more often the
result of a lifestyle of hard work, perseverance, planning and self-discipline.
Personal budgeting and money management are valuable tools for achieving
financial independence. Many people fail to make ends meet because they do not
budget and plan.
This book will equip you with knowledge to do just that – plan properly.
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SECTION 1
THE CONSUMER'S RIGHT TO REDRESS
CONSUMER RIGHTS
Consumers have the following rights - based on the United Nations Guidelines for
Consumer Protection, 1985:
? The right to be heard
? The right to be informed
? The right to safety
? The right to choose
? The right to redress
? The right to consumer education
? The right to the satisfaction of their basic needs
? The right to a healthy environment
It is the responsibility of individual consumers to make sure that their rights are not
violated.
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For instance, as a consumer, you have the right to know the exact ingredients of
every type of processed food you buy, and the right to know all the details on a
contract. If you do not understand certain points, insist on having them explained to
you.
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1.6 THE RIGHT TO CONSUMER EDUCATION
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SECTION 2
CONSUMER PROTECTION LEGISLATION IN
SOUTH AFRICA
The National Credit Act came into effect in June 2007, replacing the Usury Act and
the Credit Agreements Act.
The new Act provides one framework for all aspects of credit and all credit providers
have to comply with the new Act.
-5-
All credit providers, credit bureaux and debt counsellors are required to register
with the NCR. All credit agreements must also be registered with the NCR.
Different categories of credit have different maximum interest rates and fee
?
caps, as set out below:
MAXIMUM Example -
CATEGORY INTEREST if the Repo Rate
FORMULA is 11.5%
1 Mortgage agreements [(RR x 2.2)+5%] p.a. 30.3% p.a.
2 Credit cards/facilities [(RR x 2.2)+10%] p.a. 35.3% p.a.
3 Unsecured credit transactions [(RR x 2.2)+20%] p.a. 45.3% p.a.
4 Short-term credit transactions 5% per month
(loans of not more than (60% p.a.)
R8 000.00, and repayable in 6
months or less)
-6-
MAXIMUM Example -
CATEGORY INTEREST if the Repo Rate
FORMULA is 11.5%
5 Developmental credit [(RR x 2.2)+20%] p.a. 45.3% p.a.
agreements
6 Other credit agreements [(RR x 2.2)+10%] p.a. 35.3% p.a.
7 Incidental 2% per month
credit agreements (24% p.a.)
(eg cash transactions that go
into arrears, such as doctors’
bills/clothing accounts etc)
PLEASE NOTE: THE REPO RATE AS AT 1ST APRIL 2008
WAS USED IN THE ABOVE TABLE.
CONSUMERS NEED TO ENQUIRE WHAT THE REPO RATE IS AT THE
TIME THEY APPLY FOR CREDIT
In addition to the above interest rates, other charges are also allowed, although
?
they are regulated, eg initiation fees, service fees, default fees and collection
costs.
Insurance cover on loans is permitted but the charge must be reasonable and
?
the consumer can use an existing policy as cover instead of taking out special
cover for the loan. Interest must be charged monthly (unless it is a large credit
agreement, in excess of R250 000.00).
Contracts which are signed must be written in plain language, available in at
?
least two languages and the consumer must receive a copy.
Consumers are entitled to a reason for credit being refused.
?
All credit providers must assess whether a consumer can afford the loan, and all
?
loans will be recorded on a register. This aims to ensure that a consumer will not
become over-indebted.
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his/her debts and expenses. In such cases the credit provider will not be guilty of
reckless lending.
When consumers cannot pay their debts, they will have the right to go to a debt
?
counsellor.
The counsellor will help the consumer to solve his/her problem by, for example,
?
restructuring/rearranging his/her debt repayments. This arrangement can be
made an order of the court.
A credit provider must give notice to a consumer when he/she defaults advising
?
him/her of the right to consult a debt counsellor. If there has been no response to
a notice after 10 days, or the credit provider does not accept a proposal from
the consumer or counsellor, the credit
provider can then proceed to court for a
judgement.
Consumers must remember that once they
?
have signed up for a debt counselling
programme, they will not be able to apply
for credit until their debt has been paid off.
The time that a default listing will remain on record is also limited as follows:
-8-
PERIOD INFORMATION
CATEGORIES DESCRIPTION IS RETAINED ON THE
BUREAU
1 Enquiries Enquiries made on a 2 years
consumer’s record
2 Payment profile Factual information about 5 years
the payment record/profile
of a consumer
3 Adverse Negative information 1 year
information about a consumer’s
default on payments
4 Debt restructuring An agreement where all Until a clearance
debts are restructured certificate is issued
(once all payments have
been settled as agreed
to)
5 Judgements The earlier of 5 years or
when the judgement is
rescinded/the creditor
abandons the
judgement under
special circumstances
6 Administration The earlier of 10 years
orders or when the order is
rescinded by court
7 Sequestrations The earlier of 10 years
or when a rehabilitation
order is granted by
court
-9-
Remember that there are also many other ombuds offices and organisations
?
that consumers can go to, to have their complaints addressed. (See contact
numbers in section 8.)
Always make sure that you are up to date with your credit
?
payments or have made some arrangement with your
creditor.
Businesses subscribe to credit bureaux, which supply
?
them with all credit account information, whether positive or negative. When
you apply for new credit your application may be refused if your credit record is
negative. (It could be that you have too much existing debt.)
You are allowed to query your credit report issued by such a bureau. Each
?
person is entitled to receive one free copy of his/her credit record per year. No
information will be given telephonically and you will be required to supply proof
of identity.
To get the information, contact TransUnion: Tel 0861 482 482 or Experian
?
Bureau: Tel 0861 105 665.
If you would like to know how long a listing remains on the credit bureaux, eg
?
administration, sequestration, debt restructuring or a negative/adverse
judgements listing, please refer to page 9.
2.1.10 MICROLENDING
Be sure that you only deal with businesses that display their registration with the
NCR in their offices. In the case of microlenders, compare interest rates and be sure
that the microlender is registered with the National Credit Regulator, Tel: 011 554
2600; ShareCall: 0860 627 627; Fax: 011 805 4835; or email info@ncr.org.za.
Keep a list of your credit card numbers, expiry dates and the
?
telephone number of each card issuer, in a secure place.
When selecting a card, compare the terms offered by
?
several card issuers to find the card that best suits your
needs.
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Watch your card after giving it to a clerk. Take your card back promptly after the
?
clerk has finished with it and make sure it is yours.
Never sign a blank receipt. Draw a line through any blank spaces above the
?
total when you sign receipts.
Open credit card bills promptly and compare them with your receipts to check
?
for unauthorised charges and errors.
Report any questionable charges to the Bank which issued your card and do this
?
promptly telephonically and then in writing.
Never give out your credit card number over the telephone unless you have
?
initiated the call.
Never put your card number on a postcard or on the outside of an envelope.
?
Sign new cards as soon as they arrive. Cut up expired cards and dispose of them
?
promptly. Cut up unwanted cards and return them to the issuer.
Leave infrequently-used cards in a secure place.
?
If any of your credit cards are missing or stolen, report the loss to your card issuer
?
as soon as possible. For your own protection, follow up your telephone calls
with a letter to each issuer. The letter should contain your card number, the date
on which the card went missing, and the date on which you reported the loss
telephonically. You may be required to go to a police station to report the loss
and to obtain a case number.
Arrange for credit card misuse and loss insurance with the issuer of the credit
?
card.
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SECTION 3
BUDGETING
Many people have money problems in one form or another, eg their income does
not keep up with increasing prices, someone in the family may be retrenched,
unexpected events occur like illness or hospitalisation; and some of us simply
overspend.
At the same time, it is so easy to get credit that we can be at risk of falling into the
trap of being over-indebted.
Many people are too scared to sit down and prepare their own budget – just like
some people are frightened of medical check-ups. They fear what it will tell them.
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Self-discipline is the first step towards financial
independence.
Step 1
Your income
Work out the total net income that comes into your household each month.
“Net income” means the amount of money that you take home after all
deductions from your gross income have been made.
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Step 2
Fixed Payments
- 14 -
Step 3
Day-to-day expenses
Fixed payments are when you know exactly how much you
need to set aside each month. However, with certain
payments you do have some control over how much or how little you pay. For
example, you have to eat and drink, but you do not have to eat expensive meat and
drink expensive wine
Exercise 3 every day. You may need
Day-to-day expenses to make telephone calls,
but you can take steps to
Groceries R control the number of
Meat R calls that you make
Electricity R each month. You may
also need water and
Telephone R
electricity, but you can
Repairs to home and appliances R control how much you
Chemist R use.
Doctor/Dentist R
You may not know
exactly how much you
TOTAL DAY -TO-DAY EXPENSES R
spend on these items. If
========= that is the case, keep a
detailed record for a
month or two until you know exactly what it is that you are spending your hard-
earned money on.
Step 4
Non-essential/luxury payments
Discretionary payments are payments for items that you would like to spend money
on but that you DO NOT HAVE TO spend money on. Usually, this area has the best
opportunities for getting out of problems or saving some money. Many smokers, for
example, would be amazed if they sat down and calculated just how much money
they spend on their smoking habit. We all like to dress nicely, but what is the point of
having smart clothes and shoes if we do not have a home to live in?
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Non-essential/luxury payments
Hairdresser/Hair products R
Skin products R
Alcohol R
Cigarettes R
Entertainment R
Holidays R
Birthday parties R
Presents R
Newspapers/books/magazines R
Pets R
Hobbies/sport R
Other R
Step 5
Your personal budget
Think about this document very carefully after you have completed it. If your total
payments exceed your total income, it tells you that you HAVE TO TAKE ACTION
NOW to regain control over your financial affairs.
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PERSONAL BUDGET SHEET
TOTAL INCOME a R
FIXED PAYMENTS
Details Amount
1.
2.
3.
4.
b R
DAY-TO-DAY EXPENSES
Details Amount
1.
2.
3.
4.
c R
NON-ESSENTIAL/LUXURY PAYMENTS
Details Amount
1.
2.
3.
4.
d R
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SECTION 4
BORROWING WISELY
Everyone would agree that living with debt is a lot more stressful than living within
your budget.
It can be frustrating if you cannot do or buy everything you would like to because
?
you do not have the money. However, living with the threat of losing your
furniture or your home or having no food on the table is much more frustrating
and stressful and is the beginning of a constant uphill battle.
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This can cause many unnecessary problems in a relationship which can affect your
daily life.
CONSUMER TIPS
GET THE MOST FOR YOUR MONEY
Compare brands and prices and shop around. If you borrow money, compare
?
interest rates. Ask your friends for recommendations and look for formal
comparison reports. Find out why friends are dealing with a particular company,
what they are paying, and use that information to make up your mind where you
want to go for a loan.
Compare stores. Look for a store with a good reputation and plan ahead to take
?
advantage of sales. Find out whether the company is reputable.
Check for any extra charges such as delivery fees, installation and service
?
charges. In the case of microloans it is important to check the interest rate and to
beware of hidden costs.
Make sure the microlender is registered with the NCR – see contact details in
?
section 8.
Read warranties/guarantees to understand what you and the manufacturer
?
have to do if you have a problem.
Read the terms of contracts carefully. Make sure all the blank spaces are filled in
?
before you sign a contract and make sure that you understand the agreement.
Ask the salesperson to explain the store's return or exchange policy.
?
Read and follow the instructions on how to use the product or service or when
?
instalments should be paid in terms of your loan agreement.
- 19 -
Keep copies of advertisements, brochures and manuals given to you when you
?
made the purchase. Inspect the product carefully at delivery.
Use the product only as recommended by the manufacturer in the instruction
?
booklet/pamphlet.
Read and understand the warranty/guarantee.
?
REMEMBER
If that does not resolve your problem, contact the company's head office.
?
If your problem is still unsolved, refer to the South African National Consumer
?
Union (SANCU) (see contact details in section 8) for the relevant organisations
that can help you take up your issue with the company, free of charge.
Taking legal action should be the last resort.
?
CONTRACTS
- 20 -
Be sure that all verbal promises are included in the written contract. You will not
?
be able to rely on what the salesperson said if this has not been written into the
contract.
Never sign a contract that has blank spaces. Draw lines through them first.
?
Be sure to ask for a copy of the contract that you have signed and keep it in a
?
safe place.
Only take out contracts with organisations that have a good reputation. In the
?
case of microlenders, compare interest rates and make sure the microlender is
registered with the National Credit Regulator.
The Financial Advisory and Intermediary Services (FAIS) Act protects consumers
?
who buy or invest in financial products.
The furnishing of advice by a product supplier (for example an insurer), an
?
insurance broker or an investment manager, and the rendering of intermediary
services by a financial intermediary, are covered by the above Act.
Provided they qualify, persons involved in these activities have to be licensed by
?
the Financial Services Board and their market conduct (that means the way in
which they must deal with consumers) is regulated by the Act.
Consumers must in future make sure that they do business only with licensed
?
financial services providers or their representatives.
The Act also provides for an ombud's office (the FAIS Ombud) (see contact details in
section 8) to handle consumer complaints against financial services providers or
their representatives. The FAIS Ombud aims to resolve complaints in a quick and
informal manner at no cost to the consumer.
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SECTION 5
REPAYING YOUR DEBTS
If you have any problems repaying your debts, the first thing to do is to contact your
creditors immediately. If you do not make an alternative payment arrangement with
your creditor, it can hand the matter over to a debt collector or a lawyer who will
take legal action against you to recover the money that you owe. If this happens,
you will end up paying much more for the debt – in extra interest and in legal
charges – and you will definitely be worse off than before.
For many consumers the experience of receiving legal letters and documents and
visits from sheriffs and debt collectors is frightening, confusing and humiliating. So,
below we set out the process that is usually followed when a consumer fails to pay a
debt or to make an arrangement with a creditor. We hope this will empower you to
understand your obligations in this situation, and your rights if you are not treated
fairly.
Some companies will phone you when you default. Take advantage of this and
?
offer to pay as much as you can. Confirm any telephonic agreement in writing
and keep copies, with fax coversheets, as proof. Also make sure that you pay
what you promise – this will avoid your account being collected via the legal
court process.
You may, instead, or also in addition, receive a letter demanding payment. The
?
National Credit Act now makes this letter (known as a section 129 letter)
compulsory before a creditor can take any legal action against you. The letter
also has to advise you that you have the right to approach a debt counsellor for
help if you are over-indebted.
When you receive a letter of demand you should then either -
?
- 22 -
if you cannot cope with all the debt you have, contact a debt counsellor.
¢
If you disagree with the claim or the amount that they say you owe, you must act
?
immediately:
Contact the creditor, confirm your disagreement in writing and ask for proof
¢
of the debt/balance of the debt.
If you are still unhappy after negotiating with the creditor, find a FREE
¢
SERVICE PROVIDER to assist you, eg if it is a bank, contact the
Ombudsman for Banking Services and if it is any other credit, contact the
National Credit Regulator (see Section 8).
You must act immediately! It becomes very costly if the debt lands up being
¢
collected via the legal process.
The creditor must wait 10 working days from the date on which it sent you a
¢
letter of demand, before it can take the legal process further.
If you do not respond to the letter of demand, the creditor will usually send an agent
to your home or workplace to ask you to sign either:
a section 57 Acknowledgement of Debt – here you will sign that you know that
?
you owe the money (the amount will be stated), and that you promise to pay
monthly instalments in a certain amount. You will also sign that if you default
again (do not pay) on any instalment as agreed, the creditor can take the
documents you signed to court, have a judgement taken against you, and get
an emolument attachment order against your salary (see below); or
a section 58 Consent to Judgement that you agree that judgement can be taken
?
in court and that a deduction can be effected against your salary.
- 23 -
The debt collector/lawyer can also, after sending you a letter of demand, and
instead of sending an agent to visit you or getting you to sign a section 57/58, get
the sheriff of the court to serve a summons on you. This is usually done at home or at
work or at the address you provided in the contract when you signed the agreement
(this is known as the “domicilium” address). If you receive a summons:
You have 5 working days to advise in writing that you want to defend the case.
?
If you owe the money there is no point in defending the case. Your best response
?
would be to call the attorney and make an arrangement to pay off the debt in
monthly instalments. Suggest that they do not take judgement as you will not
default again – and keep to this agreement. Also put what you have agreed to in
writing and send them a copy. (Keep proof of this agreement.)
If you do not owe the money, or do not agree with the amount that they say you
?
owe, you should immediately contact the attorney and advise the creditor in
writing that you dispute the claim or the amount.
Try to get this dispute resolved without going to court, but if the attorney is not
?
cooperative, you need to give notice that you want to defend the case. For this, a
Notice of Intention to Defend is attached to the back of the summons. You must
complete the Notice, serve it at (take it to) the address provided and then, once
they have signed for the receipt of the Notice, take the original and a copy,
signed by the creditor, to the Clerk of the Court.
At this stage you may need an attorney to assist you. This can be costly and the
?
best solution is always to negotiate a settlement or an agreement first.
If you sign a section 57 and then default, or sign a section 58, or if you do not
respond to a summons, the court will order judgement against you in a given
amount as stated, plus interest and costs. The court can also award any of the
following orders relating to how the creditor will recover the money from you:
A sheriff will be sent to your house to list all the goods that you own (eg your
¢
furniture, kitchen equipment, motor car etc). These goods – up to the
amount that you owe plus costs – will then be sold on auction unless you
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have the money demanded, and can pay it all. The sheriff may not attach
(take away) your beds, bedding and clothes and you may keep these.
After the items have been sold, and the sheriff has been paid, the balance is
¢
forwarded to the creditor. If the sale does not yield enough to cover the debt,
and you own your home, your house can also then be sold in execution. If
there is a balance after the sale, the creditor can ask the court for an
emolument attachment order as well.
? A garnishee order
Here, the court orders someone (usually your bank) who owes you money to pay the
creditor instead of paying you. So, for example, if you had R5 000.00 savings in
your bank account, and you owed the creditor R3 000.00, the court would order
the bank to pay the R3 000.00 from your bank account to the creditor.
interest is charged each day), extra charges to lawyers, to debt collectors, to sheriffs
and even to your employer if it is involved in paying money to your creditors.
- 25 -
Here is an example of the costs and interest charged on a debt where the judgement
taken was for R7 200.00 and where the court ordered interest at 15.5% per year,
and a monthly deduction via emolument attachment order of R600.00 per month:
When a warrant of execution is issued, the sheriff's auction will usually result in
?
the goods being sold for much less than they are worth. After the sheriff has
taken his/her fees, you could still end up owing quite a lot of money – and be
without your furniture and other items.
So it is in your own interest to contact the creditor or lawyer as soon as you
?
receive notice of anything and make arrangements to pay.
If you cannot do this for yourself, get someone who can help you or contact a
?
debt counsellor or consumer advice office which provides assistance free of
charge.
It is important that you look for free advice as there are many people out there who
will offer to help you, charge a fee, and put you in a worse situation than you were in
before.
- 26 -
Example of a Judgement plus costs
- 27 -
SECTION 6
CONSUMER RIGHTS AND REMEDIES
IN LEGAL DEBT ACTION
There are many stories about consumers who have been treated badly by debt
collectors who threatened them if they did not pay, about deductions from salaries
which left a consumer with no money to live on, and about sheriffs selling goods
with consumers still having to pay most of the debt. Below, we provide you with
some general guidelines and tell you what remedies you have in these and other
situations.
If you owe money, always make some payment, no matter how small. Pay as
?
much as you can, ie never pay nothing – the more you pay, the less interest you
will pay in the long run.
Do not have the attitude of “…the balance is wrong so I won't pay anything”. If
?
you owe money you will be charged interest every day until the debt is settled in
full.
Never sign any documents that still have blank spaces. If you are asked to sign a
?
section 57 or 58 document, make sure that all the information is complete,
including the amount due, the interest rate to be charged, the amount of the
monthly instalment, when you must start paying and how you must pay.
Never sign a document that you do not agree with – what you sign is binding
?
and will have consequences for you.
Make sure that you get a copy of what you sign – this is proof and helps you to
?
know what your obligations are.
Always complain if you have a problem – and get help if you yourself cannot
?
negotiate with the parties involved.
Always contact the credit provider and lawyer before they take any legal action
?
(because of the costs) – and always keep a record of who you spoke to, at what
time you spoke to him/her and what was discussed. Most important, record
- 28 -
what was said in writing and send a letter or email to the person. (Keep proof of
this as you may need it in the future to solve the case.)
Consumers have two defences in common law that they can use, where relevant:
If the last time that you paid any money on the account was more than three
?
years ago, and you have not admitted that you owe the money, you can claim
that the debt has prescribed. If you raise this defence (and it is true), you will not
have to pay the debt at all. (Note: Prescription does not apply if judgement has
been taken for the debt.)
If the interest on an account is more than the capital balance at the time that you
?
default, you can claim that some interest must be written off in terms of the in
duplum principle that the interest may not be more than double the outstanding
capital charged. The in duplum principle is very complex and is a legal
requirement to be applied on all loans granted after 1 June 2007.
If a debt collector charges for his/her services, he/she must be registered with the
Debt Collectors Council and is not allowed to:
Use force or threaten to use force against you or your family
?
Give, or threaten to give, information to your employer that may affect your
?
opportunities as an employee
Serve you with any false legal documents
?
So, if you are unhappy with the way that a debt collector treats you, or you believe
that he/she is charging too much, complain to the Council for Debt Collectors on
012 804 808/8483.
- 29 -
6.4 WHEN AND HOW TO HAVE A JUDGEMENT RESCINDED
You can apply to the court to have a judgement rescinded (set aside), either if it
?
was granted in error, or if the debt has been settled.
The court will only rescind a judgement in error if -
?
the judgement was obtained without you being present at court (ie the
¢
judgement was by default);
you apply for the rescission within 20 days after you become aware that the
¢
judgement was taken; and
you want to defend the claim - and can set out in an affidavit why you did
¢
not defend the case originally and what your defence against the claim is.
If you have settled your debt, your application to the court must include a letter
?
from the creditor confirming that your debt has been settled and that it has no
objection to you having the judgement rescinded.
Usually applications to court are done for you by an attorney. If you want to save on
these costs, you can also do it by yourself.
You can then apply to the court to have the order set aside or amended (changed).
Your application will need to have a covering document, known as a Notice of
Motion, in which you state what you want. You will also need to submit an affidavit
which will set out the details of your case. If you cannot afford the payments, you will
state what you can afford to pay each month and you will have to give full details of
your income and expenditure and attach proof (eg account statements, rent
receipts, salary advice). The court will then consider your accounts and determine
what is reasonable for you to pay.
- 30 -
It is in your interest to pay as much as possible, as the lower your instalment is, the
more interest you will pay.
If a sheriff appears at your home after judgement and attaches your moveable
property with a view to selling it on auction (see page ), you can apply to the court to
have the sale in execution suspended.
There are many complaints from consumers that attorneys' fees are very high and
they do not know how to check what the attorneys can charge or how to challenge
them.
Attorneys can only charge fees according to the tariff set down in the
?
Magistrate's Court Rules.
There are two tariffs for the magistrate's court – a standard tariff and a higher
?
tariff. The latter only applies if the consumer agrees to it. When you sign your
contract, there will usually be a clause which says that if you default, the matter
will be handed over to an attorney and you will have to pay the attorney's fees
“on an attorney and client” scale. This allows the attorney to charge for more
items, but the amount that he/she charges is still controlled.
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If you think that you are being overcharged, ask for a full breakdown statement
?
and if you are not happy ask for the bill to be taxed at court (negotiate because
you pay for this).
The challenge with doing this is that it is difficult for a consumer to act on his/her
?
own, as it requires expert knowledge to challenge an amount if it is not clearly
wrong. You can report the matter to the Law Society, which is a society for
lawyers in the different provinces, but unlike the ombuds offices, it is not
independent. The best option is to find a free counsellor, advice office or law
clinic to take on your case.
One of the major problems with debt is the fact that there are many people out there
who advertise and offer consumers a remedy to get out of debt, but these remedies
often mean that you pay for these services and end up with more debt than you had
before.
Many consumers have been left worse off by going under administration and
paying an administrator an amount each month so that he/she can distribute the
money to their creditors:
Firstly the administrators charge for their services – over R1 000.00 to get the
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court order, sometimes much more than this. They also take at least 12.5% of
each instalment that you pay, as their fee. Some take double this amount.
Usually, the instalment you pay is much less than the total instalments you were
?
required to pay on your debts combined, so each creditor receives much less
than the instalment originally agreed to. However, you continue to pay interest
on each account. The administrator only distributes money once every three
months, so often the balance on your debts may even go up instead of going
down because the creditor is receiving less than the interest that is being
charged.
Some administrators do not pay over the money on time; others have not paid
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over the money received from you at all.
Administrators are supposed to prepare distribution accounts each quarter, but
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most often consumers do not receive copies, so they do not know what the
charges are, or how much each creditor is receiving.
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One case study showed that a consumer had to pay R49 050.00 on a debt that
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would have been R15 807.00 if the consumer had not paid the debt via the
administrator.
If you find yourself in a situation where you have relied on one of these for-profit
debt intermediaries, ask them for all the distribution accounts. Then contact your
creditors to see if you can make arrangements to pay them directly, and go to court
to have the administration order rescinded. If you need help, find a consumer
advice office or not-for-profit debt counsellor to help you.
When you are deciding who to ask for help, it is important that the person you
approach has a good reputation, tells you upfront what he/she charges, and that
the charges are reasonable. You may find some NGOs which do not charge or
which charge very little and are committed to helping consumers. There are also
creditors who are looking to help their clients in a similar way and will not charge for
their services. Be wary of debt counsellors who are in it for the money, who will not
give a full and caring service, and who will charge you a lot for their services. Rather
find a creditor or debt counselling NGO and make sure that you are in good hands.
The process with regard to debt counsellors is formal as set out in the National
Credit Act. You will complete forms which will include details and proof of all your
debts, your income and other expenses. They will look at whether any of your debts
were granted “recklessly”, ie whether at the time that you applied for credit, the
creditor properly assessed whether or not you could afford to repay the loan. (The
court can order a remedy if the loan was granted recklessly – but you would have to
have given full disclosure of all your debts and expenses or else no remedy would be
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available.) The counsellor will work out a plan for settling your debts and determine
your monthly repayment. If the repayment plan is accepted, it is made an order of
court. If the creditors do not accept the proposed plan, they can oppose the plan
and the court will then decide whether or not to grant the order. Once the order is
granted, your monthly payments are made either directly by yourself to your
creditors or to a payment distribution agency which also charges for its services and
which distributes the portions to the creditors. The arrangement will be listed on the
credit bureaux and you will not be allowed to obtain further credit until you have
paid off your debts.
To find a debt counsellor in your area, or if you have a debt counsellor that you are
not happy with and need to complain about, contact the National Credit Regulator
on 0860 627 627 or 0860 NCR NCR.
The National Credit Act also provides extra protection for consumers who have
purchased goods on credit, and who default on paying their instalments or who
want to cancel the agreement.
Since June 2007, you can return the goods to the credit provider within five days of
giving written notice that you are cancelling the agreement. The credit provider
must give you a written estimate of the value of the goods. You can then either keep
the goods and continue with the contract or allow the creditor to sell the goods for
the best possible price. Once the goods have been sold, you will receive a written
notification indicating the details of the sale and any amount that you may still be
owing, if there is a shortfall. This shortfall must be paid or the creditor can obtain a
judgement against you for the balance outstanding. If you are unhappy with the
sale, you should approach the creditor, get the help of a mediator, or approach
your provincial consumer court.
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SECTION 7
UNDERSTANDING THE CREDIT BUREAUX
One of the most important consequences of not paying your accounts, and the one
that most consumers do not like, is the fact that this information is recorded on the
credit bureaux and most consumers then find it difficult to get more credit. Here we
describe how bureaux work and what you need to do to keep a good credit record.
The new National Credit Act requires all creditors to record the details of all
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credit granted with one of the major credit bureaux/registers.
These details include your name, ID number, address and payment profile (how
?
you have paid your accounts each month), any default information, as well as
judgements, administration orders and sequestrations (bankruptcy).
All creditors are now required by law to check whether a consumer can afford to
?
take credit and to make sure that a consumer will not get over-indebted by the
new credit given. Therefore, they are all likely to consult a bureau to check your
record:
If your record is positive, ie you have been paying your debts each month
¢
and have money to spare, you are likely to get credit.
If you have negative information, either defaults or a judgement or an
¢
administration order, a creditor may refuse to give you more credit because
of this negative record.
Most people are recorded on the bureaux – some have positive records and
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others have negative records. It is when consumers have negative records that
people talk about them being “blacklisted”.
When you have a default or another negative listing on the bureau and you pay
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off the debt, there should be a “PAID IN FULL” status noted at the bureau – the
listing will only be deleted as shown on page 9 – so do not be fooled by promises
to “remove blacklistings”, as the above rules must be followed.
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If you are refused credit because of a negative listing by the Credit Bureau, you
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have the right -
to be informed which bureau has listed you; and
¢
to be given its contact details so that you can investigate the matter if you
¢
disagree with the listing.
The bureau must protect your privacy (not show your records to others without
?
your permission), keep accurate records (this is the responsibility of the credit
providers who give the information to the bureau), and be open and
transparent.
You are entitled to a copy of your bureau record at any time (a fee of not more
?
than R20.00 may be charged) and you can obtain one free copy of your credit
record each year during your birthday month.
The bureau will not give information over the telephone and you need to show
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your ID book – this is done to protect your privacy. Contact the TransUnion
Information Trust Corporation (ITC): Tel O1l 488 2911 or the Experian Bureau:
Tel O1l 463 3930 for further information.
When the set time period has expired – the negative information will be removed
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automatically
When a judgement has been reversed in court
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If the company that requested the listing instructs the bureau to delete or remove
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the information because the listing was a mistake
When one of the above applies to you, negative information against your name
should be removed free of charge.
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7.3 WHAT TO DO IF YOU ARE INCORRECTLY LISTED
Firstly, complain to the creditor that listed you and if you have no luck, then
complain to the bureau itself. If they do not assist you, refer your complaint to the
Credit Information Ombud on 086 166 2837. This Ombud's office offers a free
service to consumers who have issues with data on the bureau. So there is no need
to pay for a lawyer or a company that offers to help with delisting – unless you need
to go to court to have a judgement rescinded.
Many people have been blacklisted because they have not budgeted properly. If
you plan correctly and pay your creditors on time you will build up a good credit
record again. Be sure to follow carefully the budgeting principles set out in this book
and your financial situation will definitely improve.
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SECTION 8
CONTACT NUMBERS
OMBUDSMEN
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National Credit Regulator Tel: 011 554 2600
PO Box 2694, Houghton, 2041 Fax: 011 554 2860/2774
ShareCall: 0860 627 627
Email: info@ncr.org.za
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SECTION 9
LESSONS FROM MILLIONAIRES
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