Debtfree Magazine Issue #5 of 2021 by Debtfree Magazine

THE DEBT

REARRANGEMENT BILL

Issue 5 of 2021

EXCELLENCE IS DOING ORDINARY THINGS EXTRAORDINARILY WELL – John W. Gardner

WHAT MAKES US EXCELLENT? / Unimpaired and automated PDA systems / Integration with top-ranked Debt Counsellor systems / Enhancing Debt Counsellor efficiency and sustainability / Best customer support in the country – queries are resolved within 24 hours / Strong compliance and best-industry-practice implementation is at our centre

Call Chris van der Straaten Head of Hyphen PDA | 082 557 0437 Or call our friendly support centre on 011 303 0060 - Option 2 or visit our website www.hyphenpda.co.za

CREDIT

CREDIT PROTECTION

PROTECTION CREDIT

Have you applied to go under debt review? Are you restructuring your monthly expenses? Would you like to insure your debt?

PROTECTION

Why outstanding accounts a single ONE Protection Policy? Have not you insure appliedall to your go under debt review? Are youinrestructuring yourCredit monthly expenses? Would you like to insure your debt? Why not insure all your outstanding accounts in a single ONE Credit Protection Policy? BENEFITS OFFERED: Have you applied to go under debt review? Are you restructuring your monthly expenses? Would you like to insure your debt?

• Death – we settle the account

BENEFITS OFFERED:

Why– not all your outstandingfor accounts in a single ONE Credit Protection Policy? • Temporary Disability weinsure pay your installment 12 months

• Death – we settle the account

• Permanent Disability – we settle the account

• Temporary Disability BENEFITS – we pay your installment for 12 months OFFERED:

• Critical Illness – we pay your installments for 3 months

• Death we account settle the account • Permanent Disability – we settle–the

Retrenchment – we your installments • Temporary Disability we12 paymonths your installment for 12 months •• Critical Illness – we paypay your installments for 3 –for months • Permanent Disability we settle the account • Retrenchment – we pay your installments for 12– months

Illness – we pay your installments for 3 per months At a rate of R2.95 per R1000• Critical unsecured/short-term credit and R2.00 R1000 on mortgages and you can now insure your debt • Retrenchment – we pay your installments for 12 months

At aless. rate of R2.95 per R1000 unsecured/short-term credit and R2.00 per R1000 on mortgages and you can now insure your debt for for less.

At a rate of R2.95 per R1000 unsecured/short-term credit and R2.00 per R1000 on mortgages and you can now insure your debt

The following financial obligations for less. or debt can be covered on the ONE Credit Protection Policy: The following financial obligations or debt can be covered on the ONE Credit Protection Policy:

• Credit Cards

• Overdrafts

The following financial obligations or debt can be covered on the ONE Credit Protection Policy: • Credit Cards

• Personal Loans

• Overdrafts

• Home Loans

• Personal Loans

RentalAgreement Agreement •• Rental

• Retail Accounts

• Home Loans

RetailAccounts Accounts •• Retail

• Home Loans

MaintenanceOrders Orders •• Maintenance

• Rental Agreement • Maintenance Orders

For further please speak to your Broker, Debt Counsellor or alternatively contact your regional ONE office.ONE office. For furtherinformation information please speak to your Broker, Debt Counsellor or alternatively contact your regional For further information please speak to your Broker, Debt Counsellor or alternatively contact your regional ONE office. 0861 266 562

0861 266 562

admin.debt@one.za.com admin.debt@one.za.com

admin.debt@one.za.com Terms and Conditions Apply

Terms and Conditions Apply

Terms and Conditions Apply ONE Insurance Underwriting Managers (Pty) Ltd Reg No. 1996/008987/07.

ONE Insurance Underwriting Managers (Pty) Ltd Reg No. 1996/008987/07. Authorised Financial Services Provider FSP8783 VAT No. 4370160501 Authorised Financial Services Provider FSP8783 VAT No. 4370160501

ONE Insurance Underwriting Managers (Pty) Ltd Reg No. 1996/008987/07. Authorised Financial Services Provider FSP8783 VAT No. 4370160501

FROM THE EDITOR This month we made the decision to adopt a pet from the Animal Anti Cruelty League. As anyone who brings home a new pet (especially a young one) will tell you, it is a combination of both excitement and stress. It means having to be super vigilant that no harm comes to the little one, and also that they don’t eat or break everything. It means no lazy mornings, and often a few midnight checkup sessions. At first, it is stressful but after just a few days you get used to your new pet, and they get used to their new environment. From then on out, it is plain sailing and lots of fun. Little animals are just very cute and can be a source of immense joy and entertainment! It is also rewarding to be offered such trust by another living creature. They look to you (with big eyes) for warmth, food and comfort and you are more than willing to give it. If you have the means to do so, I recommend adding a little puppy or kitten to your life (bearing in mind the time and costs involved). This month, we look at something else in its infancy, a discussion about a Bill that may one day become an Act, which combines debt review with administration. We delve deep into the discussion paper (which is a whopping 400 pages) and look at the highlights. It is a longer article but it is well worth knowing what is being discussed, as it has the potential to make or break the entire debt review process in the future.

We also catch up on news, find out the latest about the Debt Review Awards, have links to free downloads and interview an experienced Debt Counsellor about how his clients are coping with the lockdown. We are sure you will enjoy and be informed by all these articles. It is vital to be well informed when it comes to debt review. It also has to be acknowledged that while dealing with debt is stressful, entering debt review (to deal with that debt) is also stressful. Anything new can be like that. At first, you worry about the smallest things (rightly so), because everything is so unfamiliar to you, you end up worrying if the process is working and how things are going. It may result in a few late nights or extra work to make changes and track progress. Then, once you grow familiar with the process, learn to trust your Debt Counsellor and look to them for support and advice, you naturally begin to feel more relaxed. Having made the necessary big changes to reduce expenses, things become easier. You can even let go of your stress about your debt situation and just focus on having some fun and living your life while on your journey to become debt free.

E N I NL

14 June 2021 National Credit Regulator Debt Counselling Training Course CLICK HERE TO ENROL Contact us for more info: 012 434 2500 www.enterprises.up.ac.za

DEBT REVIEW LESSON #1

Leaving debt review to try to get credit will probably not work as you may not qualify. Beware of sales people or collections agents telling you to leave debt review before you have paid off your debt. Download this booklet to find out more about leaving debt review. DOWNLOAD BOOKLET

PROFESSIONAL DEBT COUNSELLING ATTORNEYS Assisting With Debt Review Matters Nationwide WESSEL SYMINGTON TEL: 021 872 1968 w e s s e l @ s t e y n c o e t z e e . c o . z a w w w. s t e y n c o e t z e e . c o . z a

South Africa’s Leading Debt Solutions Provider

Wessel Symington Steyn Coetzee Attorneys ‘‘The reason Zero Debt are industry leaders is that they get 80% acceptances on their initial proposals to credit providers, right away. They also make excellent use of the DCRS proposal system in negotiations with credit providers. Zero Debt regularly succeeds in convincing credit providers to reduce their high interest rates down to less than 5% on their client’s debts. This means that Zero Debt clients obtain their court orders and can pay off their debts quickly. They ensure dedicated clients get their clearance certificates and are soon able to start their debt free life. Zero Debt’s team are very experienced and highly professional. They work hard to ensure clients are totally debt free at the end of the debt review process.’’ 087 701 9665 help@zerodebt.co.za www.zerodebt.co.za

CONTENTS THE DEBT REARRANGEMENT BILL

DEBT REVIEW AN ATTORNEY’S PERSPECTIVE

DEBT COUNSELLOR INTERVIEW

COURT MATTERS: SECTION 129 FINAL DEMAND

SERVICE DIRECTORY

DISCLAIMER Debtfree Magazine considers its sources reliable and verifies as much information as possible. However, reporting inaccuracies can occur, consequently readers using this information do so at their own risk. Debtfree Magazine makes content available with the understanding that the publisher is not rendering legal services or financial advice. Although persons and companies mentioned herein are believed to be reputable, neither Debtfree Magazine nor any of its employees, sales executives or contributors accept any responsibility whatsoever for their

activities. Debtfree Magazine contains material supplied to us by advertisers which does not necessarily reflect the views and opinions of the Debtfree Magazine team. No person, organization or party can copy or re-produce the content on this site and/or magazine or any part of this publication without a written consent from the editors’ panel and the author of the content, as applicable. Debtfree Magazine, authors and contributors reserve their rights with regards to copyright of their work.

CONSUMER FRIEND USES SOFTWARE TO ENSURE

POPIA COMPLIANCE! - Secure system-to-system data transfer (no human contact) - Elimination of data exposure from the use of email - Data specification is fit for purpose

POPIA COMPLIANCE IS CRUCIAL THIS YEAR!

BREAKING NEWS

REPO RATE REMAINS UNCHANGED In May 2021, the SA Reserve Bank Monetary Policy Committee unanimously decided to leave the interest rates unchanged (much to consumers’ relief). REPO RATE: 3.5% Due to increased inflation, the repo rate will increase in the near future, unless positive factors improve the situation. Fortunately, the Rand has been doing well vs major currencies, like the US Dollar (and SA buys oil and imports other items in Dollars)

We are the champion in your corner!

DebtBusters provides a remedy for financially stressed consumers through effective debt relief solutions. Over 1 million South Africans who are facing tight budgets and are struggling with debt, have come to DebtBusters looking for a financial solution.

086 999 0606 info@debtbusters.co.za www.debtbusters.co.za

STANDARD BANK DEBIT ORDER CANCELLATION EMAIL ADDRESS Standard Bank Debt Review department have a fancy email system that can automatically send incoming email to the right department by checking the titles. They have reminded Debt Counsellors not to attach too many different things to their emails, as sometimes a debit order cancellation can get missed, if it is lumped together with other documents in the same email. Standard Bank Debt Review are trying to make things as easy as possible for Consumers to get debit order cancellations done. This is why they have a dedicated email address just for cancellations. The email address is: DebtReviewDebitOrder@standardbank.co.za

CONSUMER FRIEND NOW HANDLING UBANK DEBT REVIEW As of 14 May 2021, Consumer Friend will be managing the UBANK debt review portfolio. This modification will apply to all new debt review matters (after 14 May 2021). Debt review matters, that UBANK were already dealing with before this date, will stay with UBANK for the moment and the previous communication channels can continue to be used.

South Africa’s

leading Debt Counsellors since 2007

Start getting out of debt today! www.creditmatters.co.za

Just got out our national of Call debt! call centre on

086 111 6197

Call our national call centre on

086 111 6197

www.creditmatters.co.za

WILL WE EVER SEE A STATE BANK? You may think that South Africa already has enough banks (there are actually more than you realize with over 20 banks active). Well, the National Treasury says they are rolling out plans to introduce a state bank. A progress report was presented to Parliament during May 2021. It seems that not much is happening other than minor behind the scenes stuff, but during the presentation it was claimed that significant progress is being made. The State Bank is aimed at providing financial assistance to the most vulnerable South Africans who cannot get credit elsewhere. The formation of the bank has been discussed for over 10 years, leading many people to wonder if it will ever be launched. If it ever does come to fruition, the new bank may herald the end of Postbank, as some in Government have called for Postbank to be either incorporated (in the new bank) or scrapped totally.

POPI-PROOF your PROCESSES WITH DREX Secure system-to-system data transfer (no human contact) Elimination of data exposure from the use of email Data specification is fit for purpose

DID YOU KNOW? ^^

The President of South Africa has proclaimed the POPIA commencement date to be 1 July 2021. POPIA applies to any company or organization processing personal information in South Africa. Fines for non-compliance with POPIA can range up to 10 million ZAR (South African rands). POPIA defines personal information broadly as any information relating to not only a living person, but also a company or legal entity.

^ ^

DEBT REVIEW AN ATTORNEY’S PERSPECTIVE

INTRODUCTION It comes as no surprise that in our current economic climate, more and more people are facing challenges with meeting their monthly debt obligations. Debt review was introduced by the National Credit Act to provide relief and assistance to those suffering the consequences of being over-indebted. The debt review process is a legal one, and legal practitioners, as officers of the court, have the responsibility to ensure that the legal process is correctly followed whilst protecting the interests of Debt Counsellors, consumers, and credit providers alike. However, the reality of the court system often poses challenges when it comes to finalising applications and obtaining granted debt restructuring orders.

DEBT REVIEW AN ATTORNEY’S PERSPECTIVE

DIFFERENT REQUIREMENTS AT DIFFERENT COURTS In Gauteng alone, there are approximately 35 district courts where debt review applications are heard. Lack of uniformity across the courts is a significant obstacle that attorneys face when it comes to presiding officers interpreting the Act and relevant case law when hearing debt review applications. This inconsistency places attorneys, as well as Debt Counsellors, under an unnecessary administrative burden as potential court queries need to be anticipated according to each court’s specific prerequisites and solved before the court appearance. For example, magistrates often require updated documentation such as payslips and proof of residence (the age of such documentation varies from court to court), information regarding spousal contribution to the household, justification for items listed in the Debt Counsellor’s revised budget, justification for allowing consumers to keep certain assets such as motor vehicles, and even specific averments to be addressed in the debt counsellor’s founding affidavit.

DEBT REVIEW AN ATTORNEY’S PERSPECTIVE

CHANGES & DIFFERENT INTERPRETATIONS Debt review has an extremely complex relationship with the courts because the National Credit Act is still relatively new, and interpretation of the process is ever-changing. In the past, consumers and Debt Counsellors were sometimes requested to appear personally in certain courts to give evidence. This was not only inconvenient but also unnecessary. Fortunately, declaratory orders have been sought in the High Court to give more guidance and uniformity to the process, and this practice has for the most part been phased out in most courts, albeit not all. Although declaratory orders have been of great assistance to those practising in the debt review sphere of law, the directives given therein are often subject to different interpretations between the courts and this results in the lack of standardisation of the process across the board remaining a problem.

DEBT REVIEW AN ATTORNEY’S PERSPECTIVE

CHALLENGES Amongst others, additional common problems include attorneys not receiving necessary documentation on time - this could be due to a number of reasons, but results in documentation not being filed within the specified time periods as required by the court rules. It also happens that even if documentation is received in time, unfortunately, due to the courts often being understaffed, files are frequently misplaced, and original documents are lost, resulting in unnecessary postponements. In addition, court dates are often only available months in advance due to the court rolls being too full to accommodate the applications sooner, whereas in the past a great deal more applications could be placed on the roll. This leads to documentation again becoming outdated by the time the next court date arrives, resulting in endless postponements and wasted costs.

DEBT REVIEW AN ATTORNEY’S PERSPECTIVE

SORRY, NOT TODAY Furthermore, it is becoming more and more prevalent that matters do not appear on the court roll on the specified appearance date due to court files getting lost, which causes frustration and time wasted due to having to look for the files at court. Nowadays, many courts impose a limit on how many applications may be placed on the roll per firm, per day, to alleviate the burden of the roll on the courts that are often overextended. This adds further pressure on attorneys and debt counsellors to ensure that the debt review applications conform to each court’s requirements to guarantee that restructuring orders are granted at the first court appearance so as not to clog the court rolls even further. The situation is further exasperated if one or more of the credit providers decide to oppose an application for whatever reason, because the matter will have to be postponed for settlement negotiations if the matter cannot be settled before the first court appearance (although it often happens that matters are settled the day before, or on the morning of the court appearance at the latest).

DEBT REVIEW AN ATTORNEY’S PERSPECTIVE

CONSUMERS CAN DO THEIR PART With the threat of postponements and extra costs in mind, it is vital to always provide your Debt Counsellor with all requested documentation as soon as possible. This may mean that you are asked to depose a number of affidavits and give a great deal of extra information to your Debt Counsellor than you expected. Even though this may be extremely inconvenient and time consuming, your Debt Counsellor is acting in your best interests and this information will be needed to answer queries raised by the court. If these documents are filed in time, unnecessary postponements and costs will be prevented, resulting in your matter being finalised sooner. It is also very important to read through all affidavits and documentation sent to you that you are required to sign. A reputable Debt Counsellor will ensure that you understand the process and will make sure you have peace of mind, so definitely do your research before choosing a Debt Counsellor to assist you.

DEBT REVIEW AN ATTORNEY’S PERSPECTIVE

DON’T GIVE UP Court orders restructuring consumer’s debts are vital to the success of debt review. Consumers desperately need these court orders for peace of mind and to legally adjust their obligations. With all these ongoing challenges and the differences found at all the various courts across the country, how can attorneys and Debt Counsellors get debt review applications granted? Patience is key in debt review, so persevere, bearing in mind that the process is designed to result in a workable solution... if you don’t give up!

Debtfree want to thank VHT INC for their insightful thoughts about the challenges facing attorneys working with debt review matters. ABOUT VHT INC. We are a young and vibrant law firm who pride ourselves in being specialists in debt review and all related matters. We personally appear in more than 35 courts scattered across Gauteng and manage an extensive correspondent network countrywide.

CollectNet

collect / review / disburse

Welcome to our world of

efciency and

automation

Why choose us? New generation technology Fully automated and integrated Dedicated support for DC business growth Knowledgeable staff with extended support hours CollectNet

collect / review / disburse

Tel: +27 12 140 0602 | Email: info@collectnetpda.co.za | Web: www.collectnetpda.co.za

DEBT REVIEW AWARDS 2021

Plans are progressing well for the annual Debt Review Awards. A lot of behind the scenes work has been underway with regard to both the Awards event and the ongoing industry peer reviews.

Peer Reviews Over the last few months peer reviews have been happening and the organizers want to thank all those how have been able to make time to participate in the two previous rounds of reviews. The reviews now enter a new even more detailed stage as credit providers and Debt Counsellors will be asked to review very specific functions being performed by their counterparts in the industry. Soon, associations and PDAs will be sharing additional links to any Debt Counsellors and credit providers who have not yet had a chance to participate (this can happen since the NCR database is used for contact info and details may change or the details given there may be more generic inboxes). If you have not yet had a chance to participate and would like to be proactive then please feel free to mail:

DebtReviewAwardsPeerReview2021@debtfreedigi.co.za

10 September 2021 Everyone will be able to tune in on social media and streaming platforms like Youtube to enjoy the live stream and find out who has received the highest ratings in the various categories this year. The event will stream from mid morning (the build up events) and the Award announcements will be made in the afternoon (after 2pm but before 5pm). Why not plan now to watch the event on Friday 10th September as an office either remotely or in a Covid cautious office set up?

THE DEBT REARRANGEMENT BILL

PLANS TO COMBINE DEBT REVIEW & ADMINISTRATION At present, the SA Land Reform Commission are discussing how the Magistrates Court Act administration process and National Credit Act debt counselling process could be lumped together into one. They are also looking at short term changes to the Magistrates Court Act to enhance administration in the meantime. The proposed Debt Rearrangement Bill would dramatically alter the way debt review is done and reduce access to clients.

THE DEBT REARRANGEMENT BILL

AMENDING THE NCA AGAIN The National Credit Act has been amended several times over the years. In many cases major industry issues have not been addressed in these amendments, but instead, new processes, registrants and procedures have been added. For example, in the last amendment the new debt intervention process (a type of debt review done by the NCR) was introduced. These amendments also make it possible for courts to adjust credit provider’s interest rates without their approval. Though signed into law, these amendments have not come into effect yet. Now the National Credit Act may be amended, one day in the not too distant future, by a new Act called the Debt Rearrangement Act.

THE DEBT REARRANGEMENT BILL

WHY? It is well known that Administration (or “Admin” as it is called) has a poor reputation for consumer exploitation. Many consumers under admin over-pay on their debts for years, either due to greed by practitioners or administrators incompetence in monitoring payments vs. obligations. The process is also well known to be limited to very small debt amounts (less than R50 000) and ends up costing credit providers and consumers a lot in fees. It is an old and antiquated process, but a much better option, debt review, now exists. It is, however, still a part of the law and there are many practitioners who earn a living from it. This is why the SA Land Reform Commission has been consulting with the National Credit Regulator (NCR) and major credit providers, looking at how the Admin process can possibly be rescued.

THE DEBT REARRANGEMENT BILL

DISCUSSION PAPERS At present the process of introducing a new Act is still in its infancy. Discussion papers have been distributed to a few parties who are commenting about the suggestions made for the Debt Rearrangement Bill. At first these changes really centered around changing Admin and not on debt review so much. This is clearly evident by the problematic statements and misconceptions made in the discussion paper. The discussion paper also refers to matters discussed in the recent, but not yet in force, NCA amendment (like debt intervention) but does not take into account other aspects of that amendment (like courts being able to change interest rates willy nilly without credit provider consent. Don’t be surprised if you have not been asked to comment. Debt Counsellors were invited to join these discussions quite late, and will now have to undo many of the misconceptions about debt review mentioned in the discussion paper. There is a wish list of the NCR’s favorite gripes about problem Debt Counsellors included in the discussion paper.

THE DEBT REARRANGEMENT BILL

HIGHLIGHTS The discussion paper and the proposed bill is a 400 page document, so we will stick to the highlights (or perhaps the lowlights) which will impact on how debt review is currently run. The discussion paper says that presently, consumers with smaller debts do not have access to debt review, so it’s not a good idea to simply scrap admin entirely. The discussion paper says that current legislation about administration (in the Magistrates Court Act) will be replaced and later repealed. This will be done twice: first, short term, to increase the amount that could be included in admin to R300 000, then again later to lump together properly with debt review.

THE DEBT REARRANGEMENT BILL

NCR HIGHLIGHTS The plan is for the NCR to take authority over Administrators. This will be accomplished by simply rebranding all current Administrators (who apply and qualify) as Debt Counsellors. This is because (many feel) Debt Counsellors have a better reputation than Administrators. So, hundreds (or thousands) of new “Debt Counsellors” will compete with the existing ones for clients. All Debt Counsellors are registered with and regulated by the NCR.

THE DEBT REARRANGEMENT BILL

PREVENTING PEOPLE WHO RECENTLY GOT CREDIT FROM GETTING HELP If a credit provider recently (perhaps recklessly) gave the consumer credit, the discussion paper suggests refusing the consumer an admin order. This is probably motivated by credit providers who have poor controls over evaluating credit granting. It also could help them avoid detection of reckless lending. If however Administrators become Debt Counsellors, they will (if current pending amendments come into effect ever) have to investigate every account for reckless credit. So, it seems a waste of time.

DEBT REVIEW LESSON #2

If you leave debt review before settling all your debts then you will have to go back to paying off your debts at the old installment amount, at the old interest rate and with all the old monthly fees. Credit providers may also ask you to suddenly catch up payments for the months that you were in debt review and paying less. Download this booklet to find out more about leaving debt review. DOWNLOAD BOOKLET

THE DEBT REARRANGEMENT BILL

2009 TASK TEAM AGREEMENTS The discussion paper acknowledges that the 2009 NCR Task Team Agreements were not signed by many credit providers and Debt Counsellors, and are therefore not enforceable (much to the disappointment of those involved at the time). It does say, however, that the DTI Minister should be given power to make these mandatory. This means that these 12 year old suggestions become defacto new regulations for debt review without the Minister having to go via the normal legislative process. Not abiding by those old task team rules could get debt counsellors deregistered. No mention is made to the glaring issues with those very old task team “rules”.

THE DEBT REARRANGEMENT BILL

MANDATORY CODES OF CONDUCT In the past, an attempt was made to (it was said) circumvent the requirements of the NCA, and to add all sorts of requirements to those working in the industry via an industry code of conduct. Though the NCR were happy to produce and enforce such a code, many in the industry were opposed to this ‘work around’, which ignored the NCA and created alternative rules beyond those in the Act. The fear was that such rules (created by a code of conduct) could be frequently changed, at the whim of the NCR. A code of conduct, of course, is not without merit, as it can help reduce the incidence of abuses by practitioners (which Administrators sadly have a reputation for). Many established industries have such codes of conduct. These are traditionally high level documents which avoid dictating the day-to-day of the industry. Whether the NCR would consult with the industry in a meaningful way about such a code, or would simply use it to create new rules for Debt Counselling, is an issue that needs to be addressed to prevent industry push back.

THE DEBT REARRANGEMENT BILL

LESS POSSIBLE CLIENTS FOR DEBT COUNSELLORS In an effort to ensure consumers have easy access to Administrators (something that has been an issue in the past) the discussion paper proposes that consumers are only able to seek help from Administrators and Debt Counsellors who are within 50Km of their home or work. It acknowledges that this will probably be an issue for those living in remote areas. It also mentions that currently, Debt Counsellors help consumers from all over, in an effort to remain profitable. It does not mention or discuss how many DC’s are now operating remotely, due to the pandemic, to actively avoid in-person contact.

It suggests that Debt Counsellors (including former administrators) simply open up multiple offices all over, if they want to reach more people. Which, of course, will mean more fees to the NCR for registration of offices. It also raises questions about who will work at these offices, and how a Debt Counsellor can be in multiple places at one time. This is something the NCR worry about, because at present (unlike PDAs, credit bureaus or credit providers) Debt Counsellors do not register as a company but rather as an individual. It is likely that this requirement will see the death of the small town Debt Counsellor, and will prevent people in remote areas from getting assistance.

THE DEBT REARRANGEMENT BILL

RECKLESS LENDING FEES The NCR recently introduced a ridiculously small fee to supposedly incentivize Debt Counsellors to investigate reckless lending. When one or two large Debt Counselling firms began charging all their clients this new fee, and went to the press bragging about it, the NCR received complaints from credit providers to pull this fee. Credit providers are scared of these investigations and would like to avoid them. The NCR then tried to pull these fees, and asked Debt Counsellors not to charge people to investigate reckless credit.

As with everything else surrounding fees, this has been something of a disaster and caused a lot of debate. Currently there are no regulated fees for debt review despite many amendments to the Act and regulations. In something of a compromise, the new proposal regarding these fees is to only charge them, if the court finds that the matter is actually reckless. This effectively removes any incentive to possibly pursue reckless lending investigations (so a victory for the credit providers)*. These tiny incentive fees are pretty meaningless anyway, given that a court matter investigating reckless lending could cost consumers up to R40 000 in legal fees. *It is worth noting, however, that the 2009 task team report/guidelines require every single account to be investigated for reckless lending (as does the most recent pending amendments to the NCA).

THE DEBT REARRANGEMENT BILL

DTI TO EXPLAIN DEBT REVIEW TO CONSUMERS Consumers often do not fully understand the debt review process. It is one of the reasons why Debtfree Magazine has provided Debt Counsellors with a free booklet to share with new consumers explaining each step of the process in detail. This can help supplement counselling sessions with the Debt Counsellor. Feel free to ask your Debt Counsellor (or PDA) for a copy. One of the proposals in the discussion papers is that the DTI issue a standard letter to consumers (in their own language) explaining the entire debt review process.

THE DEBT REARRANGEMENT BILL

MEET AND CONDUCT THE PROPOSAL STAGE IN PERSON It is amusing that in the midst of a global pandemic, where a virus is transferred by time spent in person with one another, any new legal bill may try enforce such meetings. While the proposed bill and discussion paper does make provision for parties to log in via video conferencing (certainly what everyone would do) it is just a good laugh. Think of all the wasted time of such an archaic process, which is doomed to failure from the beginning. Imagine… thousands of daily meetings between bank representatives and Debt Counsellors, all over the country happening simultaneously. Hundreds of different matters been dealt with in ridiculously repetitive, and possibly hour-long chat sessions in person or over video conferencing. This is one of the biggest changes proposed for the current debt review process. The idea in question is that the discussion over which

credit provider gets what, and who agrees is done a group session rather than via email and software. The proposal is that this take place with the Debt Counsellor presiding over the hearing (charging a fee) and it would be done to try ease pressure off the courts. If all parties agree, then they sign and the matter is final. If someone disagrees then the matter goes to court as normal. It also sets out that the big credit providers’ rights would outweigh the small credit providers, allowing room for Bond providers to get preferential treatment. This is something of an echo of the naïve view held by past NCA legislators who thought voluntary debt review would be “a thing” and credit providers would agree without having to be forced by the courts. They were wrong back in 2007, and it is doubtful this will work to any significant degree in the future. Never mind the constitutional challenges, or one credit providers’ property rights outweighing another. There also seems to be a lack of understanding that if one party does not agree to a particular payment amount, it puts the entire calculation out of whack. It is an “old school” pipe dream. There is a lack of knowledge that, at present, this can all be done with the push of a button on systems like DCRS (which is a virtual version of this using calculation software) and happens nearly instantaneously. Obviously, this was designed with little or no realistic knowledge of the current process, and if this became ‘the norm’, then fees and timelines would need to skyrocket to cover the increased time factor. It does seem similar to the current push to mediate over problems outside of the court process. This is perhaps easier for Government than having more efficient courts with more staff etc.

THE DEBT REARRANGEMENT BILL

CONSUMERS & DC INTERROGATED AT COURT In the past many courts asked consumers and Debt Counsellors to appear in person, rather than have their legal representatives appear on their behalf. This has slowly declined at most courts. The proposed changes bring this back into play, with unhappy credit providers being offered the chance to cross examine (interrogate) consumers directly about any matter involved in their debt review. After this decade long issue was finally sorted out, there seems to be a return to taking consumers out of work, and making them go to wait at a court to testify (rather than submitting an affidavit). This will once again create excess pressure on already vulnerable consumers, and threaten their job security. This alone will definitely discourage many from seeking help. It also prevents the Debt Counsellor from being in the office, helping other consumers. More costs, more wasted time, less consumers getting help, less help available for consumers. What a disaster!

THE DEBT REARRANGEMENT BILL

EAOS - GARNISHING SALARIES TO PAY FOR DEBT Having debt review repayments being done via an EAO (commonly referred to as a garnishee order) will make many consumers happy. While this may ensure payments, it also ensures employers will be made aware of the consumer’s poor financial position, revealing the extent of their financial strain. This will also deter high-end clients from applying, once again preventing consumers getting help over privacy concerns.

THE DEBT REARRANGEMENT BILL

EXCLUDING ASSETS The potential Bill makes room for courts to exclude certain ‘secured’ debts, i.e. debts like bonds and cars. This is a common practice in places like the UK where bonds are left out of such reviews. In these places, consumers have to pay their usual full installment on such big debts. This ensures that those who cannot afford to do so will lose their assets. This is something the NCA has protected SA consumers from up to this point. This proposal makes it possible (combined with other provisions) for bond providers to object to any proposal and then go to court to have their debt removed from the debt review. We can anticipate these greedy credit providers trying to sell off people’s assets, as well as additional court cases to try defend those matters (which will cost money and places strain on the court system). This should be seen as a massive win for credit providers who want to sell off people’s assets.

THE DEBT REARRANGEMENT BILL

6 MONTHS BREATHING ROOM When the NCA first came into effect, it basically had a 2 month (60 day) “breathing room” type process in place. This received so much push back from credit providers that no one in debt review skips payments at any stage now. Payments are now made from month 1. This also helps ensure consumers actually pay for the process and take it seriously, cutting down on possible abuses. Despite the current option to delay payments being built into the NCA, it almost never happens. Credit providers want money and they want it as soon as possible. The discussion paper looks at a 6-month delay in payments (breathing room) for some entering the process. While this sounds great, it actually creates challenges like: will the Debt Counsellor get paid for work they do? Could credit providers be exposed to abuses of consumers trying to take advantage of such breaks unwarranted? We hope not, but the possibility needs to be discussed.

THE DEBT REARRANGEMENT BILL

SELLING OFF ASSETS In the sequestration process, consumers assets are sold off to recuperate the credit providers money. The document suggests that Debt Counsellors also now be allowed, by the courts (if the matter goes to court and is not decided in a consultation session) to sell off a consumers assets, even if the consumer doesn’t agree. You can see the logic behind such a suggestion. There is little reason for a consumer to hang on to luxury items, when they have massive debts, it will assist them get out of debt sooner. This is, of course, not what consumers will hear. Being ordered to sell something you love, is just another reason for consumers to totally avoid entering debt review. Once the media hears about this (if it ever gets included), it will just be another nail in the coffin of the debt review process.

THE DEBT REARRANGEMENT BILL

BEING DECLARED ‘NO LONGER OVER INDEBTED’ The National Credit Act currently allows people to be declared over-indebted, but does not expressly have a way for consumers to leave the process before paying off all their debts. Despite multiple amendments, this has not been added to the Act. The discussion document now makes room for this to be done at Magistrates Court. It may however only apply to consumers who have a better financial situation and can easily revert to the old high interest rates and high monthly fees on their debts, enabling them to take on even more credit again.

THE DEBT REARRANGEMENT BILL

COURTS CHANGING INTEREST RATES Like the current pending amendments, this bill proposes giving courts the ability to change credit provider’s interest rates on unsecured debts. Secured assets avoid this provision, but the bill does not acknowledge that a current (already passed and signed) amendment makes provision for changing interest rates already (including on secured assets… which may be why the President has never said when the amendments will come into effect??).

THE DEBT REARRANGEMENT BILL

COULD THIS BE THE END OF DEBT REVIEW? It is clear to see the countless problems that such changes would cause. It is also evident that initially, not many Debt Counsellors were consulted in the process. Efforts to cover over issues in one process (Admin) will create massive new problems in the other process (debt review). For example, if consumers do not pay, for months at a time, it will frustrate credit providers. Allowing the big credit providers to dictate how much other creditors get, or decide if they want to take part, will undoubtedly create a wave of poor conduct by the big banks, who will promptly use the opportunity to side step the process. Requiring credit providers to have staff compliments, capable of

attending hundreds of simultaneous in- person or video conferences to discuss proposals, is almost impossible. Think of the logistics and costs. Telling consumers they have to sell off assets, inform their boss they are in debt review, take leave on multiple occasions to go to court, and can only get help from a Debt Counsellor nearby, even if better practitioners are elsewhere, is a bad idea. Then not including their biggest assets in the process, and exposing them to the sale of those assets, defeats the whole point of debt review. Fortunately, the entire Debt Rearrangement Bill is still in the discussion phase, and no doubt, during consultation with the industry and the public, someone will point out these problems. If anyone listens, is another story.

We pay when your clients can't The importance of oﬀering your clients protection from falling behind with their Debt Review repayments during unforeseen circumstances is now more evident than ever before.

More cover and more security for your clients & you, the Debt Counsellor. Contact us for a presentation on how a partnership with to Click CreditGuard protects your st a e u q Clients & gives you, Re tion a t n the Debt Counsellor, e Pres peace of mind.

CreditGuard oﬀers an innovative Credit Life Insurance Policy.

Reﬁ ne you oﬀ r va er in lue g y -p ou r r

Unemployment or Inability to Earn an Income Other Than as a Result of Disability Beneﬁt *

re security Mo

. s MORE by client w on iti vie os t Re

op b De er ov

Mo re

Specifically designed for the South African Debt Review market, our tailor-made benefits are available at an affordable cost to your clients:

Maternity Benefit * Death Benefit * Accidental Death Benefit * Permanent Disability Benefit * Temporary Disability Benefit * Critical Illness Benefit * Identity Theft Benefit**

The CreditGuard Credit Life Insurance Policy is underwritten by Guardrisk Life Ltd (FSP 76) and administrated by Siyavika Risk Solutions (FSP 44999). CreditGuard is brought to you by Emisha Software (PTY) Ltd | 2016/281371/07

All beneﬁts are subject to Exclusions and Waiting Periods * Guardrisk Life Product | **Non-Guardrisk Life Product

Contact Details: www.creditguard.co.za Email: Tel:

info@creditguard.co.za 083 252 8410

FREE BOOKLET

FOR DEBT COUNSELLORS TO SHARE Are you being phoned by consumers who are asking how they can leave debt review? Is your inbox full of requests to remove a Debt Review Flag at credit bureaus? The free booklet, which you can download from the link below ( 1MB in size) covers many common questions and helps consumers learn more about the challenges involved with having their debt review status removed before paying off all their debt.

DOWNLOAD AND SHARE

Save Time Send Detailed Information Educate your Clients & Consumers

We appear in the following courts and act as a correspondent for Dc’s and their attorneys. ATLANTIS BELLVILLE GOODWOOD CALEDON CAPE TOWN WYNBERG CERES GRABOUW

HOPEFILED KHAYELITSHA KUILSRIVER MALEMSBURY MITCHELLS PLAIN MOORREESBURG PAARL PIKETBERG

ROBERTSON SIMON’S TOWN SOMERSET WEST STELLENBOSCH STRAND TULBAGH WELLINGTON WORCESTER

Please contact adri@kempdebruyn.co.za to enquire about our fees.   

+27 (21) 200 5644 adri@kempdubruyn.co.za 21 Station Street, Paarl, 7646

DEBT REVIEW LESSON #3

Leaving Debt Review before you have paid off your debt is complicated or may, in fact, be impossible. For example, you can leave debt review if you only have a bond left but not if you have many smaller accounts outstanding. Download this booklet to find out more DOWNLOAD BOOKLET

What if... YOUR CLIENT’S VEHICLE IS STOLEN OR WRITTEN OFF? • Is he properly insured? • Could the insurer repudiate the claim due to his debt review status? • Since he cannot get more credit, how does he replace his vehicle?

Meliorleaf is the first and only specialist in insuring the assets of people in debt review. We genuinely protect your clients… in partnership with you.

CALL US NOW 010 141 2799 | www.meliorleaf.co.za

MAXIMISING INSURANCE RELATED INCOME

PARTNERSHIPS How does the partnership between Meliorleaf and Debt Counsellors work? We keep you advised regarding your clients to ensure they are covered properly, and remain covered. We regularly remunerate you, depending on what you choose to do: Some debt counsellors want to be actively involved in arranging and managing insurance relationships, and we equally share commissions earned. Some debt counsellors are registered Financial Services Providers who can advise their clients and provide a full brokering service, thereby being entitled to earn the full commission. Meliorleaf understands that some debt counsellors cannot, or do not want to be actively involved, but still want their clients to be properly insured: For these debt counsellors, Meliorleaf can offer a fully outsourced turnkey solution. What’s more, we will still provide you with ongoing remuneration on all active policies.

Are you interested in partnering with Meliorleaf? Call Sean or Elmarie today on 010 141 2799 CALL US NOW 010 141 2799 | www.meliorleaf.co.za

DEBT COUNSELLOR PROFILE

AWIE COETZEE SA DEBT HELP Debtfree Magazine caught up with award winning Debt Counsellor Awie Coetzee who is based in Melville, Johannesburg. We asked him about his start in Debt Counselling and the challenges facing both Debt Counsellors and consumers under debt review. Where in SA are you based? I have small to medium size debt counselling practice. My offices are in Melville (Johannesburg), and also in Pretoria. We do however deal with consumers from across the country. How long have you been a Debt Counsellor? I have been registered and practiced debt counselling since 2008. What did you do before becoming a Debt Counsellor? I was in financing for almost 10 years, before changing to debt counselling 13 years ago. Why did you become a Debt Counsellor? I was introduced to debt counselling back in 2007 by my aunt, Erna Scott, as we came from similar backgrounds (She was one of the very

first debt counsellors). It quickly piqued my interest, so I started to explore this new industry, which I found very fulfilling. What makes your business a success? I believe in being hands-on. As we are a smaller “boutique” type debt counselling firm, we are able to offer our clients personalised attention, I feel this is critical for success. Where do you find new business? We do marketing campaigns to inform potential clients of the benefits of debt counselling. Since we have been in the industry for so many years now, we also get a lot of word-of-mouth business, from previous clients as well as from our current clients. What challenge are you seeing coming from the credit provider side at the moment? Since the lockdown began in 2020, we have seen a big delay in turnaround times from most of the creditors, as quite a lot of them have had to work from home. This created quite a challenge, as communication is often delayed or even missed completely. What is the biggest challenge facing Debt Counsellors at the moment? I feel the challenge the Debt Counsellors are (STILL) facing is clients being misinformed. Misinformation about the whole process. There are many consumers that still don’t really know what the correct process entails, and that means that they unfortunately, cannot make an informed decision when it comes to debt counselling.

DEBT COUNSELLOR PROFILE There are a small number of Debt Counsellors who are still not following the correct procedure, resulting in reputational harm to the whole industry. It causes potential clients to form a negative view of debt counselling, which is a great process that can really help debt stressed consumers. What is the biggest challenge facing your clients at the moment? A lot of my clients were negatively affected by COVID-19 last year, and these issues have spilled over into 2021. Currently many of my clients are having to deal with further income reductions. Many self-employed clients suffered a complete loss of income during the initial stages of lockdown. This means that these already over-indebted clients, suddenly had the impossible challenge of trying to keep up with their previous court ordered debt review instalments. Many fell into arrears with their debt review obligations, and due to the ongoing economic problems this has made it nearly impossible for them to catch up. So, what advice do you give consumers experiencing debt stress due to the lockdown & Pandemic? Make a plan to speak honestly to your Debt Counsellor regarding your new circumstances. The Debt Counsellor will send out form 17.3’s and suggest revised proposals to credit providers. We, fortunately, have had great success during the lockdown with these types of temporary reduced payment arrangements. Talking honestly and promptly with creditors does help in this regard. Your

credit providers will normally help if they can, they understand that there is a global pandemic going on. What advice do you have for consumers already under debt review? Be pro-active with your budgeting, lifestyle choices and spending habits. Stick closely to your proposed instalment in order to avoid default payments. Never miss a payment. Try and settle smaller accounts, if and when you can. Also try see if you can sell unnecessary items (vehicles, property) to rid yourself of these debts to put more funds into your debt review. This will significantly shorten the overall debt payment plan for all your debts.

010 593 0919 info@sadebthelp.co.za

Visit our Facebook page

www.allprodc.org

Debt Counsellors Collective The iDDC would like to hear from members and other DCs about the struggles they face and continue to face as a consequence of the lockdown. What issues need to be escalated to the NCR?

We are lo new NEC m 2021. Would volun

ooking for members in d you like to nteer?

Due to the Covid-19 2nd wave our meetings (for the next while) will be held online. We will update all members about meeting dates shortly. www.dcasa.co.za

NDCA are ready to help consumers who are struggling with debt. Visit our site for more information ndca.org.za

COURT MATTERS

SECTION 129 FINAL DEMAND The Court Case Standard Bank v Siyabonga Willie Matse Case No: 41390/19 High Court of South Africa, Johannesburg

Why it Matters This ruling is significant in terms of serving a Section 129 notice (which happens before legal action commences).

Background In this particular case the consumer had been extended credit and had nominated an address that was non-existent. Later when the credit provider tried to organize personal service on the consumer at the nominated address the consumer could not be traced. Even hired Infographic vector created by pch.vector - www.freepik.com

tracers were unsuccessful in locating the consumer. The Post Office could not deliver a registered letter slip, because the nominated address simply did not exist. The credit provider was, however, able to identify another property (other than the nominated one) which the consumer appeared to own. In addition, some communication had occurred with the consumer by email, and therefore a valid email address could be supplied. The issue facing the credit provider was that the consumer had not nominated service to the other property address or via email. So, now what? At this point Standard Bank went to court and asked for leave for substituted service of the Section 129 letter (to other address or via email).

Relevant Legislation NCA Section 129(5) & NCA Section 65(1) Section 129(5) of the National Credit Amendment Act 19 of 2014: ‘‘(5) The notice contemplated in subsection (1)(a) must be delivered to the consumer— (a) by registered mail; or (b) to an adult person at the location designated by the consumer. (6) The consumer must in writing indicate the preferred manner of delivery contemplated in subsection (5).”

COURT MATTERS So, a consumer has the right to give an address that they would like any legal notices to be delivered to and they must receive these notices before a credit provider can start legal action.

But what happens when the consumer gives a nonexistent address? Section 65(1) of the National Credit Act 34 of 2005: “(1) Every document that is required to be delivered to a consumer in terms of this Act must be delivered in the prescribed manner, if any. (2) If no method has been prescribed for the delivery of a particular document to a consumer, the person required to deliver that document must(a) make the document available to the consumer through one or more of the following mechanisms(i) in person at the business premises of the credit provider, or at any other location designated by the consumer but at the consumer’s expense, or by ordinary mail; (ii) by fax; (iii) by email; or (iv) by printable web-page; and”

The Ruling The Judgment went in favour of Standard Bank. In the ruling the Judge said that the consumer had given an address that did not meet the actual purpose of Section 129(5):

1. It would seem to me that in the circumstances, I must, or at least may, regard the chosen address to be fatally defective for the purposes of s129(5) and, instead of purporting to authorize a deviation from the section that does not entail personal service, create the most sensible constructive domicilium for purposes of the section, to the extent that it still applies in the circumstances, and, in the alternative, deem the section simply not to apply and apply a constructive choice on the part of the consumer of the email method specified in s65(2)(iii). As a result the Judge made the decision that the other address (which had not been selected by the client) could be used, in this particular case. Also part of the ruling was that the final demand letter could officially be accepted via a digitally registered delivery system. 2. In these circumstances, I granted leave for a s129(1)(a) notice to be served by doing so both at the Ivory Park property on a person apparently in charge over 16 years of age and by utilizing the specified email address, affording the respondent one month from the performance of the last act within which to respond.

Debtfree Magazine want to thank Attorney Rynhardt de Lange of DL Attorneys for his assistance in compiling this article. If you have follow up questions please feel free to email him on: rynhardt@dl-law.co.za

SERVICE D

CLICK THE C

DEBT COUNSELLORS

SUPPORT SERVICES

TRAINING

FINANCIAL

INSURANCE