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Michael Tellinger Appeal Dismissed By Same Judge!               Plans to Approach Constitutional Court

Some of you might know about this case and it's heated debate.

If not read the peace underneath:

Michael Tellinger had promised his followers “a true David-versus-Goliath case” that

could shake the very foundations of the banking system. And as he laid out his case -

- that banks are manipulative, dishonest, law-breaking profiteers sucking the life out of

honest people — that’s exactly what many of his two dozen or so supporters packing

the benches of court 2B in the South Gauteng High Court in Johannesburg on Tuesday

thought they were witnessing. Right until the little guy was, metaphorically, beaten

senseless by Goliath, then kicked in the face by the court. 

 

The New ERA are considering joining the case in the Constitutional Court.
 
It took Judge Jackson Mabesele only minutes to deliver his judgment, dismissing with costs Tellinger’s attempt to force Standard Bank into a protracted trial, and noting that his conduct “amounts to abuse of court”. This leaves Tellinger not only with a substantial legal bill to pay, plus the possibility of being sued for defamation if he continues his crusade, but also raises the prospect of him being declared a vexatious litigant and barred from the courts.

There the matter might have ended, if this were just another case of an unpaid home loan and an ordinary banking client. But this is Tellinger -- “scientist, explorer and internationally renowned author”, as he is billed by a United States conference on the paranormal he is due to headline later this year -- and he believes he is an agent in a just war against an evil system.

“We’re looking at the Constitutional Court and we have some plans to make sure they can’t foreclose on the property,” Tellinger said after the hearing. “We’re not going to give up right now. I may have to be the sacrificial lamb in the search for greater justice, but I think we’re being guided to do this work. I believe it comes from a higher source, as strange as that may sound.”

Simple matter for Standard Bank
For Standard Bank (and, so far, the courts), the matter is a simple one. In 2007 the bank gave Tellinger a loan of R828 015 to buy into a new property development
 in

 

 Midrand as an investment. For the first couple of years he made his payments, then he suddenly stopped. Attempts to retrieve the overdue payments from him failed and the bank obtained a summary judgment to seize the property, which will be sold to recover the money.


Tellinger’s perspective is somewhat different. 

Between organising conferences about UFOs, writing hugely successful books explaining how humanity was created as slaves by aliens and researching the perpetual energy devices constructed by the highly advanced civilisation he believes used to inhabit Southern Africa, Tellinger found the time to educate himself about the fractional reserve banking system and the securitisation of debt. What he discovered shocked and horrified him.

Banks create money out of thin air, Tellinger contends, and intentionally deceive borrowers about their methods and intentions. The details are torturously complex, but the implications are clear -- to him, at least. 

“These actions are no more than a breeding colony for an infestation designed on profiteering and engineered to push social-economical platforms to higher peaks of misery among South Africans, wherein the very borrower ends up paying the ultimate price: deprivation of their right to own property,” he told the court on Tuesday.

Tellinger wants to imitate the banks
Which, in part, is why he sent Standard Bank a piece of paper he holds to be a negotiable instrument, in full and final payment of the loan. If a bank can create money by shuffling paper, he reasons, then he can do the same thing under the same rules. 

By that logic not only does he no longer owe Standard Bank any money for the property he is now letting out, but by hanging on to that document with his signature the bank actually owes him something in the region of R900 000.

To say Standard Bank is unamused by this argument would be an understatement.

“What does he take us for?” fumed the bank’s senior counsel, Shem Symon, a man colleagues say is not in the habit of losing his cool in court. “It is not he who has been violated; it is us … We are the innocent party here, having given him money in good faith and having received nothing but contempt and insults.”

Symon and the lawyers representing Standard Bank are not even tempted to give Tellinger credit for sheer chutzpah. They believe him to be an opportunistic deadbeat, using a “fanciful generalised attack on the banking system” to delay paying what he owes. 

They also consider his arguments to be “a loose cluster of legal principles that are either wrong, quoted out of context or completely irrelevant”.

There is one area of agreement between Tellinger and the bank in the latter’s accusation that he is using the court for grandstanding. Tellinger does not like the word much, but he is very eager indeed to bring the matter to some kind of trial. He believes the cross-examination of bankers would reveal the ugly truth in no time. 

“I’m standing up for my rights and trying to share them with the rest of the world so they can stand up too,” he said. “The wool is being pulled over South Africans’ eyes; they are being used as little slaves, extorted by the banks. That is what we have to stop.” 

Article curtacy of Mail & Guardian

Paul Nieuwoudt - Administrator

Forum Debt Concern

PDA Survey

We are holding an informal survey to determine if Debt Counsellor's are satisfied with the PDA

 they are using.


Please cast your vote on the Poll on the right hand side of the screen.

Regards

Paul Nieuwoudt - Administrator

Forum Debt Concern 

 

 

Credit Provider Scam!

SEVERAL South Africans have been caught in an alleged loan scam operation that has a restaurant in Hungary listed on its website as its head office.

So far 10 complaints have been submitted to the Hawks and the National Credit Regulator (NCR).

But the company – Euro Aid Financial Services – insists it is running a legitimate business.

The man who brought it to the authorities’ attention is a Western Cape businessman who is fighting to recoup his losses.

Hawks spokesman McIntosh Polela said the complaint was made in December. Since then, the Hawks have received complaints from across the country.

The “victims” were all unable to get loans from banks or registered lenders and turned to Euro Aid Financial Services, which offers an interest rate of 7.5 percent a year and no capital repayment.

Applicants are told that they have to deposit one percent of the loan amount into the account of Euro Aid Financial Services before the loan can be transferred into their bank accounts.

They are also billed for administration fees, the amount of which varies depending on the loan requested.

Complainants claim that despite paying the deposit and the admin fee, they did not see a cent of the loan the company had agreed to give them. Instead, they said, they were met with excuses and stalling tactics.

Polela said that, on average, the complainants lost R20 000 each.

He confirmed that at least four agents from Euro Aid Financial Services were under investigation. There have been no arrests yet.

A Dr Ricardo Sabotti, based in Hungary, e-mailed the Cape Argus saying that he had instructed the company lawyer in Joburg to comment last week.

The lawyer’s brother, who answered his cellphone today, said the reason his brother had not commented was that he had flown to Dubai last week “on urgent business”.

The Cape Argus has a list of 10 people who were promised loans but ended up losing money instead.

Polela said it appeared that the problem could be more widespread because “more people were coming forward”.

On its website, the company says it was founded in Budapest in Hungary 1985.

Euro Aid describes itself as an independent investment firm that has “pioneered private equity and venture capital in south-eastern Europe”.

No landline numbers are provided on the website. A physical address for its head office is listed, and an internet search on the address led to a restaurant called Pastramit.

It specialises in Hungarian cuisine.

The website says Euro Aid Financial Services is one of the European industry’s most experienced firms, having completed investments in more than 70 companies in 11 countries.

Even though it trades internationally, it uses only the rand symbol in its masthead on both the local domain-registered website, as well as the international dotcom site.

Both sites lead to the same home page. “Loans from R4 million investing in the future”, reads its slogan.

An associate of the firm’s accountant said he recently came to SA from Budapest. He deals with the payments.

The associate was adamant that the business was not a scam. He said all the loans would be deposited last Friday. The money would reflect in bank accounts by tomorrow, he said.

He said the whistle-blower’s deposit would be refunded but he would not get his loan.

“He gave us the wrong physical address.

“We won’t tolerate nonsense,” said the associate.

He admitted taking money from clients, but explained these were administration fees and to cover bank charges.

According to loan agreements in possession of the Cape Argus, clients are expected to pay 1 percent of their loan amount upfront. This serves as a deposit. Non-refundable admin fees are also charged.

The NCR had received 10 complaints against the company, said spokeswoman Lebogang Selibi.

The complainants were providing the regulator with information about their cases. Once all the information and evidence had been assessed, the NCR would decide whether a full investigation was warranted, said Selibi.

Selibi explained that the regulator first needed to assess the role of the parties involved in the provision of credit, and whether or not any of them should be registered.

Paul Nieuwoudt- Administrator 

Forum Debt Concern

ABSA GROUP COMPLAINT UPDATE 3

81 Members have voted and it has been agreed that a formal complaint will be filed for members of this Forum.

A complaint form will be drafted and posted on this Forum for completion by interested members.

You will be called upon to submit the required information on the Complaint Form with accompanying proof.

Note that the Complaint Form submission will have a deadline.  Once the deadline has been reached, the bulk file will be submitted to ABSA for resolve.

ABSA will also be given a deadline to resolve all complaints. If ABSA does not adhere to the deadline, this Forum will divert the bulk file to the NDMA and NCR. 

Paul Nieuwoudt - Administrator

Forum Debt Concern

Breaking news!! NCR recocnise ALL PRO DC

Finally the NCR has  This was the response of the public relations officer of the National Credit Regulator after a direct question was posed to them regarding All Pro DC

The Question:" Your response and the letter that AllProDC have says " we will" recognise... them as an industry association
will implies a future time : When will that be?  (date)
or have they already been recognised?

The letter goes on to talk about all sorts of other things but we are just curious if they have already been recognised or if they will at some future point be recognised when that might be?"

The Answer:"They are recognised as at date of letter.   As the NCR we cannot choose not to recognise an industry association that has been formed by our registrants.  However, the association will only have a say in any industry agreements / negotiations provided their members subscribe to the Code of Conduct as all other parties be it Credit Providers, Debt Counsellor and PDAs, have subscribed to a Code of Conduct. "

NCR Mess

The National Credit Regulator has been thrown into turmoil with the suspension of its chief financial officer in connection with allegations of nepotism and tender fraud.

Sivo Pather was suspended on February 15 - a week after board chairman Trevor Bailey called in auditors Ernst & Young to investigate staff complaints about tender irregularities.

Pather has been accused by his own staff of unilaterally altering an IT contract, contrary to the instructions of the regulator's board.

After being authorised to renew a tender with IT company Praxis for a year, for R1.6-million, Pather allegedly extended it to four years for R4.6-million.

Praxis is owned by Yugasen Naidoo, who is believed to be the cousin of Pather's wife.

Pather was suspended with his nephew, Denver Naidoo, who joined the regulator as an IT officer and is now head of facilities.

The regulator was set up in terms of the 2006 National Credit Act to monitor credit providers.

According to an insider at the regulator, Ernest & Young investigators are also looking at the relationship between Pather and the regulator's management accountant Khesini Pillay, who is also believed to be a relative.

Pillay is also on suspension.

Pather has been accused of abusing company resources and of taking his family of more than 20 on a holiday to Spain at the regulator's expense.

Employees have accused acting CEO Nomsa Motshegare of protecting him.

Pather's staff accuse him of victimising them shortly after the Ernst & Young investigation started.

Some allege that he had threatened them on the day of his suspension, saying he would deal with them if they cooperated with investigators.

When contacted yesterday, Pather asked to be called back in 30 minutes but then failed to answer his phone.

The regulator's spokesman, Lebohang Selibi, said no further information would be released pending further investigations.

Bailey said yesterday that the regulator viewed the allegations against Pather in a serious light.

"We are dealing with this matter expeditiously and as professionally as we can and, without sounding difficult, it is highly inappropriate for me to put all these allegations into the public domain," he said.

He refused to comment on allegations that Motshegare had failed to address staff grievances against Pather.

About the Spain trip, he said: "Allegations were made and within days, investigators were appointed and they are busy with investigations."

Article wrote by Times Live: KHETHIWE CHELEMU

Paul Nieuwoudt - Administrator

Forum -Debt Concern

Great News For Consumers                                        - Court Must Be Satisfied that S129/S86(10) Notice Was Competently Delivered 

A High Court Judgment(ABSA vs Brown & Brown/ABSA vs Deventer & Human) was delivered 07 February 2012 in regards to the delivery of Section 129 and Section 86(10) notices that must be satisfactory to the Court.

Under Section 130(3)(a) of the National Credit Act 34 of 2005 provides as follows:

“(3) Despite any provision of law or contract to the contrary, in any proceedings commenced in a court in respect of a credit agreement to which this Act applies, the court may determine the matter only if the court is satisfied that-

(a) in the case of proceedings to which sections 127, 129 or 131 apply, the procedures required by those sections have been complied with”

The Court held that the Credit provider(plaintiff) instituting legal action in Court must satisfy the Court that the Section 129 or Section 86(10) notice was indeed delivered in accordance with the NCA

The Judgment has contains the following points:

1. There is no prescribed method for the delivery of a notice in terms of Section 129 or a notice in term of Section 86(10) of the NCA

2. For a Section 129 or Section 86(10) to be competently delivered, the procedures of Section 65(2) apply.

3. What emerges from the aforegoing and from the language of section 65(2) is that the consumer is entitled, as of right, to choose the manner of delivery and the credit provider is compelled to give this choice to the credit consumer.

4. In order for a court to be satisfied, as required by Section 130(3)(a) that the notices required to be provided in terms of Section 129(1)(b) and Section 86(10) of the NCA have been delivered, it is necessary to allege in the summons, at least what manner of delivery, from those set out in Section 65(2), the consumer has chosen and that the notice was delivered in that manner.

5. It must accordingly be accepted that the despatch of notice or the sending thereof in the manner chosen by a consumer set out in Section 65(2) would constitute proper “delivery” in terms of Section 65(2)(b).

6. Where a consumer has chosen delivery by post then the notice should be delivered at the address determined in accordance with section 96 of the NCA.

7. Section 3 of the NCA states that the purpose of the NCA is, inter alia, “to promote a fair, transparent, … credit market industry, and to protect consumers” by pursuing various objectives set out in subsections 3(a) to (i). Broadly, I think, the purpose is twofold, firstly to create a credit market industry which will have the listed characteristics and secondly, to protect credit consumers who are, more often than not, in a grossly inferior negotiating position.

Summary

1. A credit provider must in his contract with the consumer obtain written confirmation of the chosen method of delivery of the notices in terms of Section 129 and Section 86(10) of the NCA.

2. The consumer has a choice of delivery in terms of Section Section 65(2) of the NCA by any of the following methods:

(a) in person at the business premises of the credit provider, or at any other or at any other location designated by the consumer but at the consumers expense, or by ordinary mail.

(b) by fax

(c) by email or

(d) by printable web page

(e) or at the consumer designated address chosen in term of Section 96 of the NCA.

3. If the credit provider did not delivery the notices in terms of Section 65 or Section 96 of the NCA, the notices will be regarded as not competently delivered and the Court will not be satisfied that the                                                                                                                           provision of the NCA have                                                                                                             been met.

THE COURT HELD THAT THAT ABSA DID NOT COMPETENTLY DELIVER THE SECTION 129 NOTICE AND DISMISSED THE APPLICATION FOR DEFAULT JUDGMENT.

A Forum Topic has been created for comment or questions.

Download Case Judgment 

Paul Nieuwoudt- Administrator

Forum Debt Concern

Feb 2012 Issue of Debt Free Magazine Out!

We proudly offer the latest issue of Debt Free Magazine to our members compliments of Mr. Zak King.

Members are free to read the Magazine on the Debt Free Magazine tab or copy this link into your browser.

http://debtconcern.webs.com/debtfreemagazine.htm 

Paul Nieuwoudt - Administrator

Forum-Debt Concern

Debt Counsellor Form 41 and Form 42 Due Today         -15 Feb 2012

Debt Counsellors you are reminded to submit your:

1. Form 41 -Report of Compliance/Non Compliance for the period of 1 January 2011 to 31             December 2011

2. Form 42 - Statistical Report for the period of 1 October 2011 to 31 December 2011 

Today will be the last day to submit the above. Failure to submit these reports could lead to a Compliance Notice by the NCR

Paul Nieuwoudt - Administrator

Forum- Debt Concern 

 

ABSA Meeting 07 February 2012                                     -Group Complaint Update 2

 A official meeting was held with ABSA to discuss problems in the debt review industry.

The representing member of AllProDC(Alliance of Professional Debt Counsellors ) and Administrator of this Forum was Mr. Paul Nieuwoudt, assisted by Mrs. A Pretorius, a new member of this Forum.

The meeting was also attended by the new Manager of Business Partner Relations, Grace Nkomo, who seemed to be on top of her game and very well informed.

The meeting played out to be very fruitful and ABSA was informed of the more than 60 debt counsellors in this Forum that would like to join a group complaint in regards to the plague of termination notices that have been sent, that greatly tend to be unlawful or unfounded terminations according to members who voted on t poll. 

It turns out that more than 500 complaints will originate from the 60 debt counsellors who voted.

ABSA was shocked to hear this and it was decided that all complaints will be collected through this forum and handed to ABSA, with a clear set deadline.

Should ABSA fail to meet the deadline and resolve each complaint, the NDMA and NCR will be receive a group complaint for further investigation.

Some Good News!!

ABSA was formally invited to be a member of this Forum and provisionally accepted the invitation.

ABSA will now be able to communicate publically with debt counsellors on this Forum and liaise through Mr. Paul Nieuwoudt to keep all members updated and to resolve further or future problems Forum members may have with ABSA.

Debt Counsellors will also be able to communicate through the Forum to ABSA management.

This was a ground breaking meeting and a triumph for the debt counselling industry.

Read more about the ABSA meeting in the next issue Debt Free Magazine coming out soon

 Forum - Debt Concern

ABSA Group Complaint Update 1

There seems to me sufficient interest in the ABSA group complaint from members of this forum that voted on the poll.

A meeting has been schedule with ABSA head office for 07 January 2012 to discuss the matter.

ABSA has requested that the matter be dealt with internally before the NDMA and NCR is approached.

We however feel that ABSA has had enough time to resolve service delivery issued and feel that the NDMA and NCR should be the port of call to finally resolve the problem.

ABSA will be given a chance to a fair meeting on Tuesday. Members will be given a feedback once a resolution or agreement has been reached.

Paul Nieuwoudt- Administrator

Forum Debt Concern

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HOF BESIN OOR WOORD ‘ONTVANG’ In beeld 1/2/2012

HOF BESIN OOR WOORD ‘ONTVANG’

Phillip de Bruyn

Wat presies beteken die woord “ontvang”?

Dit is die ietwat vreemde vraag waaroor die 11 regters van die konstitusionele hof die maand moet besin.

Die regters se besluit daaroor kan verreikende gevolge vir skuldeisers en skuldenaars inhou omdat ‘n bepaling van die Nasionale Kredietwet ter sprake is.

In art. 129(1) van die wet word bepaal dat ‘n kredietverskaffer (en die howe) wat ‘n kennisgewing van agterstallige skuld aan ‘n skuldenaar se adres gestuur het wat vir doeleindes van die skuldooreenkoms verskaf is, mag aanvaar dat die skuldenaar daardie kennisgewing by daardie adres ontvang het.

In die geding waaroor die regters uitspraak moet lewer, het ‘n Johannesburgse egpaar, mnr. Shadrack en mev. Daphne Sebola, nie die agterstallige kennisgewing oor agterstallige skuld op ‘n huisverband van Standard Bank ontvang nie omdat hulle getrek het nadat die verbanddokumente geteken is.

Toe hulle hul oë uitvee, het die bank vonnis by verstek teen hulle gekry en ‘n beslagleggingsbevel op die huis verkry.

‘n Regter in die Hooggeregshof in Johannesburg en later ‘n volbank van drie regters op appel in dieselfde hof het die egpaar se versoek geweier dat die verstekvonnis tersyde gestel word al het die egpaar aangevoer dat hulle nooit die bank se kennisgewing gekry het nie.

Albei howe het aanvaar dat die bank ingevolge art. 129(1) kon aanvaar dat die egpaar die kennisgewing gekry het.

Die egpaar voer nou in hofstukke in die konstitusionele hof aan dat art. 129(1) ongrondwetlik is omdat dit indruis teen die “algemene gees van die Handves van Regte in die Grondwet”.

Hul aansoek om die verstekvonnis tersyde te stel, moet toegestaan word omdat hulle nooit die bank se kennisgewing ontvang het nie, voer die egpaar aan. 

NCT Deregister Debt Counsellors van Dyk

On 18 January 2012 the National Consumer Tribunal deregistered debt counsellors van Dyk.
After numerous hearing the NCT found that van Dyk repeatedly contravened the National Credit Act and her terms and conditions of registration as debt counsellor.
van Dyk was found guilty on the following counts:
 
1. Not sending Form 17.1's to credit providers within the 5 days period prescribed by Regulations
2. Not sending out Form 17.2's within 5 days of over -indebtedness evaluation or within 35 days of
     application
3. Contravening terms and conditions of registration as debt counsellor by
- Not keeping adequate records of debt review documents
- Collecting funds from consumers when not registered as a PDA and for acting in contravention of her
    specific terms and conditions of registration that strictly prohibits a debt counsellor from collecting
    and distributing funds that relate to debt re-arrangements.
 
The debt counsellor was found guilty of many other counts of misconduct.
 
The result of the Van Dyk's contravention was a order for:
- immediate deregistration as debt counsellor
- Refunds of all PDA fees charges
- to surrender all debt review files to the NCR within 10 days....
 
ALL MEMBERS ON THIS FORUM SHOULD REMEMBER THAT EVERY DEBT COUNSELLOR HAS DIFFERENT TERM AND CONDITIONS OF REGISTRATION!
 
Not all debt counsellors are bound by the same terms and conditions of registration and as a result can not be brought before the NCT for the same charges if found guilty.
 
We have created a NCR Registration Topic for all members to discuss their terms and conditions of registration together with view, opinions and statements on the van Dyk's deregistration.
 
We have added the Judgments and Order of the NCT on the Documents Tab for reading.
 
 
Regards
Paul Nieuwoudt - Administrator
Forum- Debt Concern

ABSA - Group Complaint

Dear Members

As one of your new Administrators on the forum, but a long standing member that many of you rely on for advise, I would like to do a enquiry into your problems with ABSA.

As many of you may know ABSA was been sending out S86(10) Termination Notices that are greatly void, ranging in the thousands

Consumers are paying in accordance with their court orders, but ABSA has proceeded to terminate debt reviews without cause. This obviously leads to huge burden on debt counsellors as they have to deal with invalid termination notices(greater work flow).

Some reports have also been made that ABSA has been informing consumers that they have never received payments in the debt review, when the facts clearly show otherwise. This could also be seen as crimin injurium(defamation of character). Many debt counsellors lose clients as the clients blame the debt counsellor, when the debt counsellor is not at fault.

We at Munnik & Associates-Munnik Debt Counselling have in the past put pressure on ABSA in regards to unethical S129 Letters of Demand. The battle was won against ABSA and a national change of the S129 was done.PLEASE REFER OT THE DOCUMENT TAB FOR MORE INFO, UNDER ABSA BATTLE

We call upon all members who enjoy the great benefit of this forum to submit their views on the ABSA matter. A ABA Group Complaint topic has been created.

If enough interest is show, we will be collecting complaints from all debt counsellors that will be submitted to ABSA,

ABSA will be given a reasonable time to respond, failing they will be reported to the the Banking Association,NCR, NDMA and Banking Ombudsman.

Should this fail, we will consider going to court.

Please post your views and suggestion on the 'ABSA Enquiry' topic.

Paul Nieuwoudt -Administrator

PAIA MANUAL

The minister granted exemption for the compiling of PAIA MANUAL on 30 December 2011 to certain private bodies, until 2015. See Government Gazette no 34914 @    http://www.sahrc.org.za/home/21/files/EXTENSION%20GRANTED%2030122011.pdf 

You can also download the “PAIA ACT” @ http://www.dhs.gov.za/Content/PAIA/paia_manual.htm

Constitutional Court (Sebola & Sebola vs Standard Bank)

Many of you may know of the case, but here is some background and updates:

The applicants being Sebola & Sebola applied to the Court to have Judgment Rescinded against them as they were of the meaning that a notice in terms of S129 of the National Credit Act 34 of 2005 must no only be sent, but delivered to the consumer in person.

The Applicants did not find favourable Judgment in the High Court and appealed to the Supreme Court of Appeal. Again they did not reach success

The Constitutional Court has now been called upon to clarify on the meaning of delivery(service) of a notice in terms of S129 of the National Credit Act 34 of 2005.

The Socio-Economic Rights Institute (SERI) have joined the case and feel that if a consumer does not get the notice they should be able to ask a court (when they do find out) to give them time to consider the options presented in the notice.

 

To download the Successful Application by SERI to join the proceedings Amicus Curiae follow the link.

Constitutional Court Application(SERI)

Paul Nieuwoudt - Administrator

Forum -Debt Concern 

 

 

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Booze, parties scandal at regulator

Strippers among gifts a registered debt counsellor offered staff at National Credit Regulator in correspondence seen by Business Day. SeeLink for full report.

 http://www.businessday.co.za/articles/Content.aspx?id=148020

WESTERN CAPE - MEETING 3 AUGUST 2011

13H00

BELLVILLE LIBRARY

LOCATION: Bellville

STREET ADDRESS: Carel van Aswegen Street, Bellville, 7530

Thank you to Henri Schultz of DC Consulting for sponsoring the Venue Fee.

 

Please RSVP if you have not yet responded. adri@sfadebtrelief.co.za

 

NATIONAL CREDIT AMENDMENT BILL  (Courtesy Ron)

TRADE AND INDUSTRY

The trade and industry department has updated the portfolio committee on trade and industry in Parliament on the timetable for expected legislation.

 Speaking to the committee last week, the department’s director-general, Lionel October, outlined the way forward for key pieces of legislation in the pipeline.

 The bills mentioned include:

 •             National Credit Amendment Bill-to place before cabinet in February 2012. Expect to table in Parliament in April 2012.

 The National Credit Amendment Bill aims to improve implementation of the principal act.

In particular, it seeks to enhance the effectiveness of the debt review, debt counselling and restructuring process.

 According to the department, the proposed legislation is intended to “unlock the blockage that is caused largely by resistance of stakeholders to comply with the provisions relating to debt review and counselling and delays in adjudicating on debt restructuring matters by magistrates”.

 Sabinet Cape Town Office

TERMINATIONS

Concerned Debt Counsellors endeavour to be pro-active in their approach to Debt Counselling. We will keep you posted on the latest developments in the Debt Counselling milieu.

Following is a letter to be used for terminations in terms of the COLLET case by courtesy of Brett Carnegie Attorneys:-

Dear Sirs

Re_[insert client matter]

I refer to your termination letter dated [insert date].

The termination letter is premature. It is hereby brought to your attention that Notice for leave to Appeal the Sally Ann Collet v Firstrand Bank Ltd and National Credit Regulator  Supreme Court of Appeal matter was lodged with the Constitutional Court of South Africa under case number 58/11.

Should you elect to proceed with legal action then we shall oppose such action on the consumers behalf on the basis that the legal issues are not yet settled and request that any action be postponed pending the outcome of the Constitutional Court Challenge. Should the Constitutional Court find that the terminations are indeed invalid (as we allege) then we shall be seeking an adverse cost award against yourselves on an attorney and own client scale.

Please be advised accordingly.   

Concerned Debt Counsellors in Parliament!

Concerned Debt Counsellors met with Three Members of Parliament on Tuesday 28 June 2011.

The high powered delegation from Concerned Debt Counsellors consisted of Adv. Anton Barkenhuizen, Adv. Beatrice de Beer and Simon Barkenhuizen (former Chairperson DCASA Western Cape).

The meeting took place at Parliament and discussions were held in a relaxed but urgent atmosphere.

Discussions centered on the current deadlock within the Debt Counselling milieu and possible solutions. Future meetings with government including the Minister are imminent.

Concerned Debt Counsellors will keep you updated on this exciting new developments.

Never doubt that a small group of thoughtful, committed, citizens can change the world. Indeed, it is the only thing that ever has."
Margaret Mead

We met with the vanguard of the next Credit Regulator and current CEO of the NDMA. The meeting with Magauta Mphahlele was straight forward and various contentious issues were raised. She was adamant that she will engage in discussions with representatives of any interest group. This leads to the question to be or not to be an association.

It is paramount that this issue be discussed in depth on the forum, culminating in an eventual vote for or against the formalisation of the forum. We must however not lose sight of our eventual goal and we request our members to embark in participation of our search for a vision and a mission statement.

"Everything you can imagine is real."
Pablo Picasso 

Interesting Letter From DCASA

24 June 2011 Notice to all DCASA Members and Payment Distribution Agencies
Debt Counsellor Fees
The purpose of this letter is to update all DCASA Members and Payment Distribution Agencies (PDA’S) on the current situation regarding the revision of Debt Counselling fees as well as the way forward.
Debt Counselling Fees have not been reviewed since 2009 and DCASA has engaged with the NCR and DTI on an ongoing basis with the aim to finalise the fee review process. The need for a fee review was confirmed by an independent study conducted by the NCR in 2010 which concluded that Debt Counselling is not profitable based on the current fee structure.
The ongoing engagement with the NCR on the Debt Counselling Fee issue was based on the premise that Consumers should be protected from possible exploitation and/or overcharging by Debt Counsellors and that the fee should allow for the provision of a professional service based on acceptable standards by Debt Counsellors.
The proposed fee structure was referred to the NCR Board for approval and the Board requested the publication of the fees as well as consultation with the Competition Commission. The proposed fee structure was published in the Government Gazette and the NCR met with the Competition Commission. The NCR has received a formal reply from the Competition Commission and has subsequently informed DCASA that the matter will be referred to the next NCR Board meeting.
DCASA has not received a copy of the letter from the Competition Commission addressed to the NCR but instead DCASA made contact with the Competition Commission to obtain clarity on this crucial matter.
2
The position is as follows:
In terms of the Competition Act of 1998 restrictive horizontal practices are prohibited. Section 4(1) of the Competition Act states the following:
“Any agreement between or concerted practice by, firms, or a decision by an association of firms is prohibited if:
(a) It is between parties in an horizontal relationship and it has the effect of substantially preventing or lessening competition in the market, unless a party to the agreement, concerted practice, or decision can prove that any technological, efficiency or other pro-competitive, gain resulting from it outweighs that effect”.
From the abovementioned it is clear that DCASA cannot issue any Debt Counselling Guideline nor can anybody control the fee structure unless enabling legislation allows for this practice. For this reason DCASA withdraws the current Debt Counselling Fee Guidelines with immediate effect. DCASA has informed the NCR accordingly on 22 June 2011.
The NCR can issue Debt Counselling Fee Guidelines and control the implementation of the Fee Structure via the PDA’s and other mechanisms if enabling provisions are in place in the National Credit Act.
DCASA urges all Debt Counsellors to note that the provisions of the National Credit Act as well as the voluntary measures that are complementary to the provisions of the National Credit Act as amplified in the Code of Conduct for Debt Counsellors remain in force.
Tony Richards
DCASA Presidentt

Debt advisers take taxi owners for ride

Wesbank says "thousands" of taxi operators have been involved in "clear abuse" of the debt-review process as laid out under the National Credit Act, using the process as a payment holiday
Published: 2011/09/02 07:08:03 AM

LITERALLY "thousands" of taxi operators had been involved in "clear abuse" of the debt-review process as laid out under the National Credit Act, using the process as a payment holiday, senior WesBank executives said this week.

This would indicate the extent to which banks initially struggled to implement the act when it was introduced in 2007.

Chris de Kock, head of sales and marketing at WesBank, said taxi owners qualified for the debt-review process as "sole entities", but this was "quite ridiculous". He said thousands of taxi owners had sought debt relief under the scheme.

Under the National Credit Act indebted individuals struggling with repayments are allowed to approach their creditors through a debt counsellor with a proposal for reduced repayments or extended terms. This "locks" the account for 60 days while the creditor studies the proposal.

"It was clearly just abuse. We saw a lot of it. You could see the debt counsellors at the taxi ranks, where they would approach drivers and try to persuade them to get into the process. The way we saw it, if they were in genuine difficulties then they should have closed their businesses," Mr de Kock said.

Imtiaz Cassim, head of taxi finance at WesBank, confirmed the extent of the problem. "Debt counsellors saw an opportunity to make some money. They lured taxi operators, who are often semiliterate and therefore very vulnerable, into a process they didn’t understand," Mr Cassim said yesterday.

He said that when the act came into being, WesBank saw "an influx" of taxi operators applying for debt review. More savvy taxi operators were also using the 60-day lock- down as a "payment holiday".

According to Mr de Kock, sometimes when WesBank turned down a proposal the debt counsellor involved would enrol the matter at court, which would, until a recent judgment, mean the debtor would continue to keep the asset until the court had heard the matter. Using delays in the courts, "people were driving about in vehicles for 18 months without paying a cent".

However, a recent judgment means creditors can now repossess the asset whether the matter is before a court or not. This was central to the recent decline in taxi operators applying for debt review.

"The situation has tamed itself. We were very unhappy in the past," he said. "We made numerous interventions. We’ve run educational campaigns with the taxi associations, and people now understand there are consequences for going into debt review," Mr Cassim said.

The National Credit Regulator’s Ismail Kharwa, who is acting manager for debt counselling, said in a written response yesterday that the regulator had "heard allegations about debt counsellors who tout for business and make unrealistic promises to consumers which cannot be kept. However, these allegations are difficult to prove.

"Following allegations of consumers who abuse the system … it is pertinent to emphasise the debt- review process and the role of the judicial process."

Mr Kharwa said there had been 263601 debt counselling applications by the end of July this year.

South African National Taxi Council president Arthur Mthembu said yesterday that "as a result of the new legislation, and the nature of the people in the taxi industry, unscrupulous people took advantage and created an environment where they could make money".

"Most people had high instalments and thought it was a way to save money," Mr Mthembu said.

parkera@bdfm.co.za

DEADLINE MAY BRING CLARITY FOR CREDIT WATCHDOG

Deadline maybring clarity for credit watchdog

NationalCredit Regulator has until the end of this month to tell suspended officialPeter Setou what the accusations against him are and whether he faces further disciplinaryaction, or to reinstate him.

MICHAEL BLEBY

Published: 2011/08/23 07:02:13 AM

THE NationalCredit Regulator (NCR) has until the end of this month to tell suspendedofficial Peter Setou what the accusations against him are and whether he facesfurther disciplinary action, or to reinstate him.

Mr Setou, theregulator’s senior manager for education and strategy, secured the deadline ina Commission for Conciliation, Mediation and Arbitration ruling last month.

He was suspendedin May. The regulator gave no reason.

"Failure bythe (regulator to meet these conditions), the applicant will be entitled toresume his duties on September 1," the ruling says.

The deadline maybring some clarity to a mess of accusation and counter-accusation that haspitted Mr Setou and former NCR CEO Gabriel Davel against debt counsellorReginald Matjokana, who accused Mr Setou of an improper relationship with aconsultancy and who has reportedly laid a complaint against both men with thepublic protector.

The ongoinguncertainty around the regulator, led by acting CEO Nomsa Motshegare sinceJanuary, hinders its ability to regulate the consumer credit marketeffectively, at a time when unsecured lending has risen to higher than ever .

Mr Setou and MrDavel say Mr Matjokana — who is facing disciplinary action for failing to dohis job as required by the National Credit Act, and who has offered regulatorstaff alcohol-fuelled parties and women for sex — is seeking to intimidate theregulator into not taking action against him.

"ReginaldMatjokana has found that by throwing attacks at NCR, the NCR doesn’t take himon, so he’s carrying on doing that," Mr Davel said yesterday.

"The momentyou try to do your job, you get attacked. That’s why it’s unpleasant to work atregulators and work in the public sector."

Mr Matjokanadeclined to comment yesterday. He was served with a compliance notice by theregulator last year for not following the rules of the National Credit Act, butoverturned it on largely technical grounds. The regulator served him withanother notice last month. Failure to fix his shortcomings could lead to hisderegistration.

The publicprotector’s office could not yesterday confirm a Sunday Independent report thatMr Matjokana had laid a complaint against Mr Setou, Mr Davel and NationalCredit Ombudsman Manie van Schalkwyk.

It is unclearwhether Mr Setou’s suspension is related to the vacant CEO’s post, open sinceMr Davel retired in December.

Department ofTrade and Industry director-general Lionel October yesterday said it"seems like four to six weeks" will be needed to get Cabinet approvalfor a new head. Prior to his suspension, Mr Setou was seen as a strongcandidate for the post.

The Hawksinvestigating unit yesterday said it was investigating Mr Setou and Mr Davel.

"We areabout to conclude the investigation. I am not sure when, but very soon,"police spokesman McIntosh Polela said yesterday.

The regulatorsaid it had not laid the complaint that led to the Hawks’ involvement. Mr Davelsaid he was unaware of the police probe.

Separately, theregulator has commissioned an investigation by consultancy Landmar &Associates that is due to conclude next month. Investigator Charles Landmandeclined to comment yesterday.

NCR COLLUSION

This tender was issued by the NCR on 24 August and the deadline for submission is 6 September.

That leaves 8 working days for submission. The question is what advertising has been done, when and how. Guess who will be the successful l tenderpreneur?

http://www.ncr.org.za/Tenders/call_center/CALL_CENTRE_EVALUATION.pdf

ABSA new strategy (see documents tab for full section 129 letter)

“       Notice in terms of section 129(1) (a) of the national credit act, 34 of 2005 (“NCA”)

 

1.       In terms of section 129(1)(a) of the NCA, your attention is drawn to the fact that you are in                     default with your obligation under the credit agreement (Account Number ???????) that you                   entered into with us in the amount of R ?????.?? (or specify if default does not relate to arrears)           (“the credit agreement”).

2.       We propose that you refer the above credit agreement to:

           2.1   a debt counsellor (however if you have not yet applied for debt review you will not be able                      to include this credit agreement under any future debt review proceedings).

           2.2   An alternative dispute resolution agent

           2.3   The consumer court; or ... “

1 OCTOBER 2011

 

 

Dear Debt Counsellor/DC Trainer/Attorney or Interested Party

 

INVITATION FOR MEMBERSHIP OF ALL PRO DC

 

You are hereby formally invited to become a member of our association ALL PRO DC.

Our association consists of men and women:

·                who are registered with the NCR as Debt Counsellors &

·                individuals with a vested interest in the Debt Counselling industry.

 

 

The objectives of ALL PRO DC are;

 

·             to be a professional body for Debt Counsellors in South Africa as a non profit organization for the purpose of promoting the interests of members of the ALL PRO DC and a professional Debt Counselling industry;

·             to keep members informed with the law and practice of Debt Counselling;

·             to insist upon a high and ethical standard of behavior on the part of members and to preserve and maintain the integrity and status of the ALL PRO DC;

·             to facilitate the consideration and discussion of matters of interest to Debt Counselling, NCR & DTI and persons associated with the provisions of  the National credit act;

 

The aims of the ALL PRO DC are:

 

·         to promote fair credit practice within South Africa and to promote the objectives and aims of the ALL PRO DC;

·         uphold, protect and develop the Debt Counselling profession;

·         challenge all discriminatory practices relating to the credit in the Credit industry;

·         be the national voice for its members;

·         co-operate with bodies that have similar objectives;

·         to liaise and represent Debt Counsellors with the NCR, DTI and credit provider forums or any other interested party; and

·         to promote fair credit practice within South Africa and to promote the objectives and aims of the ALL PRO DC.

 

Membership fees will be R100.00 per month until members decides otherwise. Banking details to be provided.

Our association will be in the following city/town for meetings on proposals for amendments to the National Credit Act:

27 OCTOBER 2011 – PORT ELIZABETH

28 OCTOBER 2011 – GEORGE

17 & 18 NOVEMBER 2011 - JOHANNESBURG

If you require more information please go to http://debtconcern.webs.com/apps/auth/login?next=apps%2Fprofile%2FfriendRequests%2F for access to our Forum.

Please send your application form to secretary@allprodc.org

Yours in Debt Counselling

 

Adri de Bruyn (NCRDC998)

Secretary

Consumer Debt Survey

A survey of consumer debt has come to the shock conclusion that South Africans are trapped in the worst debt crisis yet, with more than 6000 new debt counselling applications a month.

" 'We are in the midst of a debt tsunami ... and now it's simply sink or swim'


Debt counselling agencies are swamped with 276601 applications for debt reviews - a last-ditch intervention to allow consumers to restructure debt to avoid blacklisting or repossession. The applications have increased from 27573 in September 2008.

The Consumer Debt report, compiled by debt counselling agency Credit Matters, said more than 8.9million people are trapped in a debt nightmare.

Debt counsellors estimated that more than 50% of them could rid themselves of their financial woes - in about 20 years.

The report, to be released next month, is based on interviews with financial industry experts, debt counsellors, media reports and information from Statistics SA and the National Credit Regulator (NCR).

Seven fuel hikes since January and soaring food, electricity and water prices are taking their toll on consumers - from the poorest to middle-class property owners and even businesses.

The survey also found:

  • South Africans pay about 75% of their salaries to service debt.
  • Economists think 400000 to 500000 jobs could be lost in what remains of this year.
  • Since last year, 5947 companies and close corporations sought voluntary liquidation.
  • More than 8.9million people have bad credit records - accounts three or more months in arrears - and an average of 174000 are added to the list each quarter;
  • More than 16.4million accounts, from electricity to retail store accounts, are impaired and more than 6million are more than a month or two in arrears;
  • Household debt, which was R952-billion in 2008, tops R1.2-trillion. This is money owed to financial institutions for mortgages (more than half the total), overdrafts, leases, instalment sales and credit cards.

"We are in the midst of a debt tsunami. The sirens have rung, the wave has come and now it's simply sink or swim," said Roger Brown, chief executive of Credit Matters.

"Life has become a lot less affordable. It's become extremely difficult for many South Africans to get themselves out of debt," he said.

SA Petroleum Association executive director Avhapfani Tshifularo expects that on November 2 fuel prices will rise again - petrol by 30c a litre and diesel by 35c - affecting food prices and consumers' disposable income.

Pick n Pay's acting merchandise director Peter Arnold said his group has tried to absorb price rises.

The four major banks have taken steps such as restructuring repayments in a bid to spare people the loss of homes and vehicles.

Absa executive Kim Royds said: "Recently we have begun seeing a steady increase in the number of foreclosures, which shows that even though the economy is beginning to show signs of recovery customers are still struggling to recover."

Royds said foreclosures were up 14% on last year. The banking sector had also noted an increase in the number of people applying for debt counselling and insolvencies.

Standard Bank said it regarded foreclosure as a last resort as "it is not in the interests of the customer or the bank to follow that particular route".

Heads not above water

Case studies in the Consumer Debt report, showing how consumers registered with authorised credit counsellors are drowning in debt, include that of a Johannesburg couple with a net joint income of R50200 and monthly debt repayments of R57000.

The couple have a combined debt of R3.8-million, which includes six credit cards in arrears to the tune of R240000, a R1.2-million home loan, R85000 worth of personal loans, three retail store accounts totalling R70000 and a R14000 bank overdraft.

A 54-year old professional based in Johannesburg, with a net salary of R25300 and monthly debt repayments of R36084, has a combined debt of R1.9-million. It includes a R1.5-million home loan, three credit cards owing R129000, three overdrafts worth R127500 and a R15000 personal loan.

PAIA Example

Dear fellow Debt Counsellors, following is a Pro-Forma PAIA manual. The idea of this forum is to save you money and ultimately to help each other. Don’t spend unnecessary on the compilation of a manual, let’s rather compile our own.  According to my knowledge, the manual below is sufficient but any contribution or input will be appreciated.

Business …………
(Registration Number …………..)
This manual has been prepared in terms of the section 51 of the Promotion of Access to Information Act 2/2000.

Section 51(1)(a)

Business Name: ………………………
Registered Office: ………………………
Postal Address: ………………………..
Directors:…………………………………
Contact Person: ……………………….
Tel # of Contact Person: ……………
Fax # of Contact Person:……………
E-Mail Address of Contact Person: ………………………


Section 51(1)(b)

To gain access to the Human Rights Commission's website which provides a guide to the Act, browse using an Internet web browser to http://www.sahrc.org.za/

Alternatively Call the Human Rights Advice Line on: 086-012-0120

Section 51(1)(c)
At this stage no Notice(s) has / have been published.

Section 51(1)(d)
Information is available in terms of the following legislation, if and where applicable:
a. Basic Conditions of Employment Act No. 75 of 1997
b. Closed Corporation Act No. 69 of 1984
c. Companies Act No. 61 of 1973
d. Compensation of Occupational Injuries and Diseases Act No. 130 of 193
e. Customs and Excise Act No. 91 of 1964
f. Electronic Communications and Transactions Act No. 25 of 2002
g. Employment Equity Act No. 55 of 1998
h. Income Tax Act No. 58 of 1962
i. Insolvency Act No. 24 of 1936
j. Labour Relations Act No. 66 of 1995
k. Occupational Health and Safety Act No. 85 of 1993
l. Patents Act No. 57 of 1978
m. Promotion of Access to Information Act No. 2 of 2000
n. Skills development Levies Act No. 9 of 1999
o. Trademarks Act No. 194.of 1993
p. Unemployment Insurance Act No. 30 of 1966
q. Value – Added Tax Act No. 89 of 1991

Section 51(1)(e)
a. Employment Contracts : Availability to be determined upon receipt of request
b. Trade Secrets : Availability to be determined upon receipt of request
c. Domain Name Registrations: Availability to be determined upon receipt of request
d. Tradename Registrations : Availability to be determined upon receipt of request
e. Trademark Registrations : Availability to be determined upon receipt of request
f. Company Documentation : Availability to be determined upon receipt of request
g. Agreements With Suppliers : Availability to be determined upon receipt of request
h. Corporate Sales Agreements: Availability to be determined upon receipt of request
i. Membership Agreements : Availability to be determined upon receipt of request
j. Data Bases Of Members : Availability to be determined upon receipt of request
k. Website Information : Freely Available at http://www._________.co.za/

Section 51(1)(f)
Fees in Respect of Requests for Information
Fees in Respect of Private Bodies

1. The fee for a copy of the manual as contemplated in regulation 9(2)(c) is R1,10 for every photocopy of an A4-size page or part thereof.
2. The fees for reproduction referred to in regulation 11(1) are as follows:
(a) For every photocopy of an A4-sized page or part thereof: R1,10

(b) For every printed copy of an A4-sized page or part thereof held on a computer or in electronic or machine-readable form: R0,75

(c) For a copy in a computer-readable form on:
(i) stiffy disc R7,50
(ii) compact disc R70,00
(d) (i) For a transcription of visual images, for an A4-size page or part thereof R40,00
(ii) For a copy of visual images R60,00
(e) (i) For a transcription of an audio record, for an A4-size page or part thereof R20,00
(ii) For a copy on an audio record R30,00
3. The request fee payable by a requester, other than a personal requester, referred to in regulation 11(2) is R50,00.
4. The access fees payable by a requester referred to in regulation 11(3) are as follows:
(1) (a) For every photocopy of an A4-size page or part thereof R1,10
(b) For every printed copy of an A4-size page or part thereof held on a computer or in electronic or machine-readable form R0,75
(c) For a copy in a computer-readable form on
(i) stiffy disc R7,50
(ii) compact disc R70,00
(d) (i) For a transcription of visual images, for an A4-sized page or part thereof R40,00
(ii) For a copy of visual images R60,00
(e) (i) For a transcription of an audio record, for an A4-size page or part thereof R20,00
(ii) For a copy of an audio record R30,00
(f) To search for and prepare the record for disclosure, R30,00 for each hour or part of an hour reasonably required for such search and preparation.
(2) For purposes of section 54(2) of the Act, the following applies:
(a) Six hours as the hours to be exceeded before a deposit is payable; and
(b) one third of the access fee is payable as a deposit by the requester.
(3) The actual postage is payable when a copy of a record must be posted to a requester.

Section 53(1) of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000)
Form for Application of Information
Request for access to record of private body

Download the Application Form here.

If you do not have a copy of Adobe Acrobat Reader, get it here!

 

INSOLVENCY- Read More About This Matter On The Document Tab


Insolvency

Debt review does not preclude sequestration proceedings against the debtor: Section 8(g) of the Insolvency Act 24 of 1936 (the Act) provides that a debtor commits an act of insolvency if he gives a notice in writing to any of his creditors that he is unable to pay any of his debts. The significance of an act of insolvency is that once committed it gives a creditor a ground for applying for the sequestration of the estate of the debtor without having to prove that the estate is in fact insolvent. In FirstRand Bank Ltd v Evans 2011 (4) SA 597 (KZD) the respondent, Evans, wrote a letter to First National Bank (FNB), a division of the applicant, FirstRand Bank, informing it that a mortgage bond he had with the bank was being renegotiated and would be administered through the courts. The essence of the letter was that the respondent was under debt review, having obtained a declaration in terms of the National Credit Act 34 of 2005 (NCA) that he was over-indebted. The applicant, to whom the debtor was indebted for some R2,8 million relating to two mortgage bonds and a loan, treated the letter as an act of insolvency and applied for the sequestration of the respondent’s estate. The respondent opposed the application on a number of grounds, including that the letter did not amount to an act of insolvency and as he had applied for debt review, which was granted, sequestration of his estate was precluded. The court held that in such circumstances it had a discretion to grant the provisional sequestration application, which it did.

Wallis J held that a debtor who informed his creditor that he had applied for or was under debt review was necessarily informing the creditor that he was over-indebted and unable to pay his debts. The proper approach to adopt in determining whether a letter like the one under consideration constituted a notice of inability to pay in terms of s 8(g) of the Act was to consider how it would be understood by a reasonable person in the position of the creditor receiving the letter. The question was what the notice meant to the recipient at the time of its receipt. The notice of inability to pay debts did not cease to be an act of insolvency as a result of circumstances occuring subsequent to the giving thereof, since if the notice was unequivocal it could not be explained away by circumstances arising subsequently. A letter informing a creditor of the debtor’s inability to pay debts coupled with a request to pay the debts over a period of time in smaller instalments, was conveying an unequivocal message that, at the time of the letter, the debtor was unable to pay his existing debts and accordingly constituted an act of insolvency under the section. The debtor’s willingness to attempt to pay the debts in future was irrelevant.

The court also held that sequestration proceedings were not proceedings to enforce the credit provider’s rights under the credit agreement such that they would be barred by s 88(3) of the NCA. Their purpose was to set the machinery of the law in motion to have the debtor declared insolvent. If sequestration of a debtor’s estate while that debtor was under debt review was to be rendered impermissible, there appeared to be no sound reason for it to be available to creditors who were not credit providers under the NCA. Conversely, there was no obvious reason why credit providers should be a class of creditors excluded from invoking the mechanisms of the Insolvency Act.

  
 

Statement on cabinet meeting 25 Oct 2011

8. Appointments

Cabinet approved the following appointments:

8.8 National Credit Regulator (NCR): Mr Trevor Albert Bailey, Ms Mercy Kenosi Mongalo, Mr JD Pema, Ms Constance Glerah Nxumalo, Mr Mmatli Barnabas Ntlou and McDonald Netshitenzhe (DTI designate) were appointed members of the NCR Board for a period of five (5) years.

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