Debtfree DIGI July 2016

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.