Abstract
Die omstandighede waaronder artikel 85(a) van die Nasionale Kredietwet 34 van 2005 as roete gebruik kan word om toegang of her-toegang tot die skuldverligtingsmaatreëls ingevolge die Wet te bekom
Highlights
Much has been written on the various debt relief measures available in law to South African debtors.[1]
A core aim of the NCA is to protect consumers by providing mechanisms for resolving over-indebtedness[3] and for the first time in the history of South African consumer credit legislation it provides for the debt relief of over-indebted credit consumers.[4]
The main debt relief measures in terms of the Act are provided for in sections 83(3) and 86(7)(c)(ii) read with section 87(1)(b)[5] and naturally are applicable only if the particular credit agreement concluded by the consumer falls within the ambit of the Act.[6]
Summary
We agree with Van Heerden’s interpretation of the Act that the court should employ the provisions of section 130(4)(c) where a consumer has applied for debt review in terms of section 86(1) but where the credit provider did not duly terminate the debt review prior to commencing debt enforcement. Section 86(11) empowers the court hearing the matter[85] to order that debt review resume under circumstances where a credit provider who has given notice in terms of section 86(10) to terminate a review proceeds to enforce that particular credit agreement. 101 As defined in s 8(3) of the Act. review to the court in terms of section 86(9) within the prescribed time limit.[102] If the credit provider continues to enforce, the consumer should be permitted to avail him- or herself of the provisions of section 85 to allege over-indebtedness and to explain to the court why the section 86(9) application for debt review was not filed in time. S 86(7)(c)(i) provides that a debt counsellor may issue a proposal recommending that the Magistrate’s Court inter alia makes an order that one or more of the consumer’s credit agreements be declared to be reckless credit
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