Debtfree Magazine September 2019

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ARE YOU TRAPPED IN DEBT REVIEW? CAN THE COURTS GET ME OUT OF DEBT REVIEW? Consumers in different provinces have headed to court to ask the courts to rule that they are no longer over indebted and do not need debt review. Different courts across the country have given many different rulings. Some courts, like in the Western Cape and KZN, have told consumers they are not able to help because the National Credit Act only says a court can call a person over indebted so they can qualify for debt counselling and it does not say they can declare someone “not” over indebted. Other courts have said it was fine and made orders to say the person doesn’t need debt counselling anymore. Many courts have simply said they cannot make a ruling. Now a new important High Court case has given clarity on the subject which has been the topic of much industry debate over the years.
The court case was heard, in Gauteng, by a full bench of several judges and involved, among others, the National Credit Regulator (NCR), Mr Neil Roets of Debt Rescue (the Debt Counsellor), RCS, Edcon, Standard Bank, the Law Society of SA, the Banking Association. Two different consumers’ matters were considered at the same time and expert witnesses (like Debt Counsellor Michelle Barnard) called in to present additional information. The Ruling After hearing from all the experts and after considering the arguments the court was asked to answer a number of important questions about leaving debt review. The ruling, in effect, says that the High Court cannot say that someone is not over indebted once they have been declared over indebted by a Magistrates Court. Due to the way the National Credit Act never mentions such a situation, no High Court can rule that someone in debt review is no longer over indebted. It may be that the law was written specifically that way to create the situation where once a consumer starts debt review they have to finish the process. Obviously this traps many consumers out of the credit market. The ruling also says that unless someone questions the constitutionality of a person being trapped in debt review (at court) the situation will just have to continue as is. The ruling also says that if people want to change things then the lawmakers will have to change the National Credit Act. The courts cannot just work around the Act. One other interesting part of the ruling says that if a matter has not yet been heard by the Magistrates Court and if the consumer’s situation changes a lot then the Magistrates Court could be given new information that proves they are not over indebted. The ruling did not however mention the credit bureaus and if they would have to remove the flag.
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Page 5 and 6: discuss some of their proposals in
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Page 26 and 27: emorse and fail to follow through w
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Page 31 and 32: ADVERTISING TIPS Are you spending a
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Page 45 and 46: sent to Parliament. It simply highl
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Contact Function C A L L C E N T E
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First National Bank - a division of
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17.1, 17.2, Proposals, General corr
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Debtfree Magazine September 2019

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