Abstract:
The main purpose of this dissertation is to identify and address a certain procedural flaw encountered with the prescribed process of notification required in terms of the National Credit Act (hereafter the NCA), prior to the commencement of legal steps. At first glance it would seem that the legislature has succeeded in creating a flawless process but in practice it has come to light that said process is the cause of havoc, disarray and ultimately result in the loss of time and money. On numerous occasions over the years has the legislature aimed for a specific goal when creating legislation, and though its intent may have been pure, in some instances it has failed in the execution thereof. The NCA is no stranger to such failure, controversy and ambiguities. It is evident that the NCA was drafted with a definite intent to protect consumers. The main problem that the legislature had to face was the balance between the rights of credit providers and consumers. Poor drafting in certain instances resulted in uncertainty as to what the legislature’s intent was and subsequently the courts are tasked with interpretation of legislation that is unclear. In order to fully assess the flaw and the practical predicament that it creates, the researcher had to reverse engineer the research problem and subsequently the dissertation starts off with an introduction and overview of the South African Credit industry. Building on this general platform the research is further confined by addressing the debt enforcement processes in terms of the common law and NCA with specific reference to the interrelation between debt enforcement and debt review. The procedural flaw pertaining to the method of delivery against the backdrop of the requirements for delivery (or lack thereof) as found in sections 129 and 130 of the NCA is investigated with special reference to the section 65 requirements for general delivery of documents and notices in terms of the Act. An in depth investigation into previous and current case law shed some light as to the train of thought followed by the courts. In conclusion, this dissertation illustrates the importance of clarity when drafting tedious and complex legislation that impacts directly on the public. It exposes a procedural flaw encountered in the NCA and provides certain recommendations as to how the flaw may be remedied.
