Debtfree DIGI July 2016

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Rijkheer V NCR and others Bloemfontein High Court ruling on Debt Review matters Ealier this year honourable Justice NM Mbhele heard a matter regarding the debt review process (in particular in regard to how matters are dealt with at court) and made several important rulings. The rulings are very similar in nature to the court matter referred to as the Van De Hoven Declaratory order (Gauteng). Some of the matters addressed are things like: Does the DC have to attend court? Does the DC need to supply a copy of his renewed certificate from the NCR? Does the DC need to attach the original Form16 to the court documents? Several interested parties were involved in what is being called the declaratory order namely the NCR, Department of justice, the banking association of South Africa and the Debt Counsellors
Association of South Africa. We run through some of the highlights of the ruling to give a quick overview so that you know when to refer to this ruling as a precident. First off the ruling indicated that since a debt review matter is heard at Magistrates court in terms of rule 55 the DC who is the applicant does not have to appear personally but can like all applicants pay someone to do so on their behalf. The DC does not have to attach their registration and annual renewal certificate as long as they swear they have these in their founding affidavit. Next it was declared that since a consumer can submit all the info needed to be apply without submitting a form 16 the court does not require a forms 16 to be attached to the court order. Service by electronic means or by hand (not necessarily by a Sheriff) is ok as long as email or fax is allowed for by both parties. Most Credit Providers prefer email these days and say so in their CoBs and other documents. The ruling said that courts can hear these matters even when the original application for help was done long ago as long as they check the updated info. Where the original documents have been lost the DC can swear an affidavit about why and provide copies. In point 7 of the ruling it is said that if two parties (ie. the consumer and the credit provider) agree to a reduced interest rate this info can be included in the court order. The NCA itself doesn’t make allowance for this in Section 86, 87 and so many courts hesitate to include a change in interest rates - even if everyone wants it and other laws allow for it. Rather than leave it off the court order and just write the amount to be paid and how long this ruling says: go ahead, add the interest rate in (after all lower rates mean consumers save lots of money and all parties are happy). The Rijkheer ruling also says that the use of the NCCRDEBTHELP system is fine for notifying all credit bureaus when someone applies for debt counselling advice. All in all the ruling is very similar to the Van Der Hoven Declaratory order. Sure the name is harder to pronounce but the message is pretty consistent. While some in the industry have a bit of concern that the NCR were not the applicant (which would be more in line with the NCA) this ruling does bring further clarity to what the courts are prepared to do to help consumers. The ruling sets another important precedent for lower courts and will make things run somewhat smoother in courts where hiccups have delayed consumers getting the full protection of the law. For a download of the ruling click HERE.
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Page 35: All professionals have professional
Page 39 and 40: Alan Manshon (The Money Clinic) Dis
Page 41 and 42: Maximus, the leading debt counselli
Page 43 and 44: South Africa’s leading Debt Couns
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Page 48 and 49: Debt Counsellors Associations Annou
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Page 68 and 69: Support services Akani Solutions In
Page 70 and 71: LEGAL Liddles & Associates “It al
Page 72 and 73: PAYMENT DISTRIBUTION AGENCIES DC Pa
Page 74 and 75: CAPITEC CONTACT DETAILS Form 17’s
Page 76: ABSA TASK SPECIFIC DEBT ABSA TASK S
Page 79: AFRICAN BANK CONTACT DETAILS 011 25

Debtfree DIGI July 2016

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