Consumer Protection in South Africa
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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