Aspects of debt enforcement under the National Credit Act 34 of 2005.

Abstract

This dissertation investigates the procedural aspects of debt enforcement under the National Credit Act 34 of 2005 (the “NCA”). It identifies some problematic areas that existed in the debt enforcement process which were clarified by the recent court decisions and the proposed National Credit Amendment Act 19 of 2014. It further identifies certain aspects relating to enforcement procedures that still needs the legislature’s attention and proposes potential solutions thereto. As discussed in this research, the NCA introduced compulsory debt enforcement procedures. It must be pointed out that although the repealed Credit Agreements Act 75 of 1980 had similar provisions, the enforcement provisions contained in the NCA are more extensive and differ significantly from those in the repealed credit legislation. These enforcement procedures are in line with the main purpose of the NCA which is to protect consumers. A balanced interpretation of the provisions of the NCA must, however, be maintained in order to protect the interests of both the consumer and the credit provider. It is clear from the provisions of the NCA that the legislature considered the protection of consumers as a priority. However, some ambiguities in the NCA provisions have allowed this intention to protect consumers to be subjected to legal scrutiny by means of legal proceedings and in the result, disadvantaging the same consumers it seeks to protect. This research further illustrates that although the NCA is designed to protect consumers, it is not one of the well drafted legislations. There are still some areas of concern regarding the interpretation of its provisions. In conclusion, it has been recommended that certain provisions of the NCA should be considered for amendment in order to clear ambiguities that may have been created by poor draftsmanship.