The NCA Credit Agreement requires confirmation of Affordability Assessment

Sui generics nature of the National Credit Act Credit Agreement 

The credit agreements under the NCA requires the the credit provider conducts a detailed AFFORDABILITY ASSESSMENT and that the assessment by implication becomes part of the NCA credit agreement. Since 2005 the consumer credit industry is required to adhere to the NCA Act, amendments, regulations and ministerial Proclamations strictly under the statutory enabled Regulator NCR and Tribunal NCT

The NCA requires that industry players register with the NCR, who may exercise jurisdiction or power over these registrants and their activities under tge NCR. 

The NCA Act has been effected by shoddy implementation and the NCR tasked with the duties apparently ignored the Rule of Law rules, which may be simply put that if any administrative arrangement is not part of the NCA Act, regulations, amandment said or Ministerial Proclamations it is VOID and unenforceable and may be ignored without fear of prosecution 

The credit industry is dominated by powerful commercial banks, these banks are credit providers and registered under the NCA  and granted a unique NCRDC registration number

Granting credit when unregistered has the effect of masquerading and is a criminal office. 

The uniques requirement for a valid an lawful,credit agreement is that the registered credit provider must conduct a Affordability Assessment before formally propositioning a consumer with a pre agreement proposal to enter into a valid and lawful credit agreement which at the time of granting credit would be valid 

The NCA indicates that the Minister may  instruct the NCR to keep a register contains all lawful, active credit agreements. The requirement in section 69 NCA has not been implemented and became the subject of a discussion in recent years  

Tge position of the Sui genesis NCA credit agreement has been undermined by the NCR since the inception of the NCA Act in 2005 and we are of the opinion that the flaunting of the Rule Of Law by the NCR has caused the NCA and debt counselling being a massive failure 

The NCR and NCT have misinterpreted their administrative powers and in so doing made themselves guilty of serious offences under specifically section 33 NCA and PAJA 2000 which regulates the actions of ADMINISTRATIVE BODIES  

We will continue this blog with further publications in the Public Interest of Consumers and Citizens of South Africa who maybe directly or indirectly affected. 

GSA Attorneys also claim immunity against wilful and vexatious actions designed to discredit our good name and actions in public interest under Whistleblower status  

We advise readers to communicate in private communications and interactions by WhatsApp0726237118 message or recording 

This content is copyrighted to GSA Attorneys 

Our objections to theCIF and DCRS rules is recorded below the content of the circulation 

The content has been submitted to the NCR and NCT 

Number 07 | October 2019

Updates from the Credit Industry Forum / DCRS

Circular 07 of 2019

The purpose of this circular is to provide the industry with an update regarding the implemented changes and upcoming change to be implemented on the 8

The DCRS sub-committee was established to comprehensively investigate the reasons for low usage of DCRS which is a system designed to give effect to the concession rules embodied in the Task Team Agreement (TTA). Furthermore, to identify areas of improvements to make DCRS function more efficiently and user friendly. The industry collectively deliberated, identified and agreed on seven (7) changes that would improve the current functionalities of DCRS.

In April 2019, the following changes were implemented (refer to circular 01 of 2019):

• The creation of a “Z” file for use by Debt counsellors - This file allows a debt counsellor to input the client’s information in order to establish whether the matter will solve without having to create an actual proposal on the system. Furthermore, if the case does not solve, the system will advise how much extra affordability is required to reach a solve. This will mean that clients will not be denied the concession offered by DCRS as a result of relatively negligible amounts and Debt Counsellors will have certainty with regards to what is required.

• VAF Balloon / residual balance change – This change was implemented to address the “solve” challenge experienced where the Vehicle and Asset Finance (VAF) had a balloon/residual balance. A longer term-extension has now been implemented on VAF accounts where there is a balloon/residual balance.

Upcoming change to be implemented by November 2019 – exact date to be announced later

• Calculation of interest from date of Certificate of Balance (COB) – This change is in the final stages of testing and provides the functionality that will allow DCRS to calculate interest from the date of COB until proposal start date. The purpose of this functionality is to minimize the end-balance differences and is an attempt to bring a closer match between the final and the provisional proposals unless there is a change to the inputs.

Disclaimer:

While the NCR has taken reasonable care to ensure the factual accuracy of this circular, it cannot guarantee such accuracy especially with regards to future events. Accordingly, NCR does not accept any liability for damages incurred by any party as a result of decisions or actions taken on the basis of information supplied in this Circular.

 

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Number 07 | October 2019

• Both the COB date and the proposal start date will remain static on the system provided that the dates in the inputs are unchanged. This will allow any subsequent proposals to remain the same, irrespective of the date on which the proposal is generated.

Debt Counsellors are encouraged to ensure that their debt restructuring system providers have these changes in place on DCRS to ensure that consumers benefit in full from the concession rules embodied in the TTA.

Any related queries may be directed to the following contact details:

• DCRS call centre on 0861 502 027 or via the helpdesk email address dcrshelpdesk@busdoc. co.za.

• Please note that the DCRS Call centre / Help desk is available 08:00 to 18:00 Monday to Friday.

FURTHER INFORMATION

Please contact Timmy Van Der Grijp on 011 554 2802, tvandergrijp@ncr.org.za should you have any queries.

FORM A PAJA Code of good Conduct - Administration 

We refer to the content of the PAJA form A  and request for reasons and indication within the section 33 Constitution and the Rule of Law

The DCRS so-called Rules engine and the empowering Act. Further the CIF status under the NCA where there is no reference to this body

The NCA act gives limited empowerment for the NCR may obtain industry input and create agreements inter- registrants in the industry. The findings and agreement and reference must be delivered to the Minister and the legislator through the standing committee. The effect is that the NCR and NCT are creatures of the statutute and has no discretion to exceed the powers granted in terms of the NCA Act and regulations 

Further to the above the rules provide for the credit provider to decrease interest on a case by case agreement

The desrease of interest may be in conflict with public interest and it is accepted juris prudence that public interest cannot be served where certain consumer receive benefits or a beneficial status,  such as lowered interest rates while the consumers who pay their debt on time and fully. 

The treatment of delinquent consumers receive unjustified preferential treatment.

Further to this we refer to the so-called task team findings and agreements, including the contentious Certificate of Balance COB. The Form is not refered to in the Act. 

The Form 17.1 NCA does not require the issuing  of a COB and this process is referred to in the so-called Task Team 2009/2015 and other publications under the jurisdiction of the NCR and NCT 

Consumer Rights to receive information under section 65 NCA

It is suggested that the correct interpretation of the Act would be correct and that the consumer is entitled to request information in terms of section 65 NCA and a detailed statement of account in section 110 must be delivered in the interest of transparency.

Further to this Affordability Assessments must be done before granting credit. When the Debt Counselor indicates that the consumer is under financial strain through Form 17.1 the matter is ONLY referred to the credit providers and the consumer may request information where they fail to keep their documents correctly.

The issuing of Form 17.1 places a burden of proof onto all the credit providers to supply documentation held in terms of section 170 NCA and listed in Regulation 55 NCA to give rebuttal to the implied fact that reckless lending may have caused the over-indebtedness of the consumer.

We refer to the 2018 NCA Amendment section 82A NCA supplies a indication that the Regulation is important in determining why the consumer may be over-indebted. The amandment has persuasive power, although it has not been proclomated. 

We are of the opinion that the task team investigation, recommendations and agreements is VOID and unlawful. The perpetuation of the rules is designed to discover the root of most credit over-indebtedness. 

The NCR and employees with the co-operation of credit providers and DCSA members are continuously to institutionalise BIAS IN FAVOUR OF COMMERCIAL BANKS detrimental to all consumers and the Public Interest of South Africa.

We require the names of all participants in the scheme in conflict with Rule of Law and the constitutional rights of all.

The NCR must supply and interpret the empowering law and why they persist in demanding debt counselors and other registrants under the NCA to act in conflict of the Act.

Disclaimer:

While the NCR has taken reasonable care to ensure the factual accuracy of this circular, it cannot guarantee such accuracy especially with regards to future events. Accordingly, NCR does not accept any liability for damages incurred by any party as a result of decisions or actions taken on the basis of information supplied in this Circular.

We request  explanation    for the above contradiction in terms 

Further to this 

• VAF Balloon / residual balance change – This change was implemented to address the “solve” challenge experienced where the Vehicle and Asset Finance (VAF) had a balloon/residual balance. A longer term-extension has now been implemented on VAF accounts where there is a balloon/residual balance.

The offering of a residual balance ( Balloon ) agreement in conflict of the requirements that tge credit provider may be promoting reckless lending practices. The act requires that the Affordability Assessment must give consideration to future financial prospects 

The practice of residual finance financing to consumer in general is a unlawful, prohibited under the NCA as the consumer cannot guarantee payment of a 30percent balloon. There may be no evidences of his understanding of the risk of this type of credit offered and will be struck down as being reckless 

The NCR and employees are therefor under indictment of flaunting the rules of good practice administration by failing to act against the patently prohibited and harmful  practices developed by tge credit providers

We require that the NCR executive responds to these matters in detail under PAJA Code and Form A, by identifying individuals or accepting full liability for damages caused to the patrimony and estates of affected consumers since 2005 when the Act commenced 

The explanation will be used to refer the individual matters to the High Court with jurisdiction by George Smith Attornet as a officer of the High Court and mandated by consumers to process in the Public Interest.

 

Disclaimer:

While the NCR has taken reasonable care to ensure the factual accuracy of this circular, it cannot guarantee such accuracy especially with regards to future events. Accordingly, NCR does not accept any liability for damages incurred by any party as a result of decisions or actions taken on the basis of information supplied in this Circular.

Please explain the contradiction in terms contained in the disclaimer generally used by the NCR

 

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Debt Review under the National Credit Act

Debt Review under the National Credit Act, Act has become extremely contentious for numerous reasons. 

 

Since 2006 the credit industry has been dominated by the National Credit Regulator NCR, the courts an numerous commentators have criticised the way the drafters wrote and put the Act together, leaving many issues up in the air. 

 

There have been numerous interventions by the NCR to correct and clarify, but unfortunately the end result has been a disappointment. Not least of all the consumers who the act was designed to assist. 

 

The NCA act is one of two consumer protection act introduced under the 1994. Consumers have been left out in the cold for many years as vulnerable economic partners who remain vulnerable to arbitrary treatment from credit providers, especially the commercial banks.

 

At the heart of the Act is the requirement for detailed AFFORDABILITY ASSESSMENT, where the assessment process provides protection for both credit providers and the underdog consumer.

 

Mitigation of risk is a guiding principal which credit providers must adhere to and apply consistently when offering credit. The requirements as set out in the NCA is based on these common law principals. 

 

The Act prescribes that the credit providers must adopt protocols and procedures to assess and ensure that the consumer is not one indebted in any way.

 

Section 81 NCA has three provisions which will be used by any person tasked to determine reckless lending 

 

The first question is whether a affordability assessment was done. 

 

The first issue which was created by the NCR at the time of implementing the Act in 2005 was the use of advisors. These so-called advisors can be identified as individuals who exercised undue influence over the first CEO Appointed at the NCR, by the government. 

 

By 2009 the NCR realized that there is a need to interpret the Act and Regulations. Unfortunately, the CEO at the time did not have sufficient legal and other knowledge to deal with a complex set of new industry regulations in an industry dominated by the major commercial banks and other money lenders who could exert power and other instruments of cohesion over a weak personality.

 

The NCA became clouded with contentious interventions, including a TASK TEAM, report which actually was deemed to be part of the Act and Regulations. The industry and courts lost perspective and lost sight of the fact that the RULE OF LAW, remained in force even under a CONSTITUTIONAL DISPENSATION 

 

The NCR decided apply for a so-called declaration from the High Court in 2009/10. The Pretoria High Court decided incorrectly to hear the application and grant relief by answering a list of predetermined questions from the NCR and argued by respondents, such as the banks and DTi.

 

The manor fault with the declaration of rights was that CONSUMERS were not represented and we must state that the High Court made a decision outside of their jurisdiction because the entities in who's favour the law was to operate was not represented. 

The matters should have been referred back to the legislator in the form of a amendment.

 

Amendments to the NCA and the Regulations has been considered on a number of occasions and we have also noted that even this has failed to correct.

 

George Smith has been a distractor for many years and reprimanded the NCR CEO and his cronies plus the powerful banking lobby not to continue tampering with the NCA.

 

In recent cases in general, including Zuma -cases the Constitutional Court warned and restated the the RULE OF LAW applies in South Africa and must be the guiding principals.

 

The Rule of Law has it's origin in the Common Law and is not a set of rules discovered in text books. The common law remains in place under the Constitutional Law until specifically recalled by a new law.

 

The basic principal stated is that every person, court or government agency is subject to the written laws and common law principals not recalled in a Act of Parliament. The courts are also bound by the rules and one of the most interesting common law principals indicate that even the judge's may not legislate from the bench and attempt to change basic rules.

 

The courts when deciding certain issues may only suspend a principal at law until the parliament has decoded and amended the issue. The set rules must be adhered to for change no matter how slow and labourious the process is. The parliament is sovereign and expresses the wishes of the people. 

 

The NCA has created the opportunity for masses of litigation in all the courts and the Tribunal. The cases are in the region of 1800 in the High Court alone. Billions of Rands have been lost by consumers.

 

In a nutshell the Rule of Law started id that is the Act, Regulations or Ministerial Proclomations do not refer to the matter it stands as in the Act until amended and proclaimed. 

 

 

In cases where consumers have been wronged these cases must be reviewed if the Act was not followed strictly 

 

Subjects will be discussed in detail and the WRING DONE TO CONSUMERS WILL BE CORRECTED 

 

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