The impact of the National Credit Act on civil procedural aspects relating to debt enforcement

Abstract

This dissertation considers the possible impact of certain requirements of the National Credit Act 34 of 2005 (hereafter “NCA”) on ordinary civil procedural rules relating specifically to debt enforcement procedures. It further identifies problem areas created by some of the provisions of the NCA in this regard, and ultimately proposes potential solutions thereto. However, as indicated in various sections of the dissertation, it is not always clear what the legislature had in mind with certain provisions. This uncertainty calls for interpretation, which gives rise to further confusion in certain instances. In view of the aims of the NCA as stated in section 3 thereof, as well as various procedural provisions discussed in this dissertation, it is clear that the NCA mainly has the protection of the consumer at heart when devising procedures relating to, or ancillary to debt enforcement procedures utilised by credit providers to collect outstanding debt sounding in money. Since the NCA must operate within an existing legal system and procedural regime where certain terms have become entrenched, a broad background on some legal concepts and relevant civil procedures are provided where after the impact of the NCA thereon is considered and analysed. As the NCA will only affect general civil procedure where a credit provider attempts to enforce obligations to which the NCA applies, the exact application of the NCA and the general enforcement procedures contained therein are determined. Against this background the impact of specific procedures prescribed by the NCA on existing rules of civil procedure are critically analysed. This dissertation illustrates that although the NCA improves the position of the consumer in many ways, also with regard to debt enforcement procedures, the legislature should have drafted some provisions more carefully which would have resulted in some vital issues being clearer. Although practice and precedent will eventually even out many of the practical difficulties currently experienced it will take time and money to do so. It is therefore submitted that some areas should be reconsidered for amendment by the legislature in order to allow this significant piece of legislation to operate smoothly. Ultimately, two sets of conclusions are drawn together in this dissertation. Firstly, the general conclusions relating to the impact of the NCA on general civil debt enforcement procedures are stipulated and, secondly, specific areas that should be reconsidered by the legislature in order to allow the NCA to function optimally are identified. Copyright