Nationwide Consumer Credit Law and Insolvency Attorneys
We assist consumers throughout South Africa with consumer, credit law and insolvency matters. Such assistance includes the rescission and cancellation of administration orders and emolument attachment orders. We also assist consumers with the cancellation of the debt review process by rescinding debt review court orders and applying to court to have consumers declared not over-indebted. Where necessary, and the consumer has the relevant grounds, we assist with the rescission of Magistrate and High Court judgments and general credit report restoration. Debt relief assistance includes sequestration, also known as voluntary surrender, debt mediation and negotiation and rehabilitation after sequestration. Assistance with consumer matters such as the purchase of defective goods or services, disputes relating to consumer agreements and the termination thereof, is also provided. In short, our areas of legal practice focus on the protection, enforcement and realization of consumer rights as entrenched in the Insolvency Act 34 of 1936, National Credit Act 34 of 2005 and the Consumer Protection Act 68 of 2008.
- Voluntary Sequestration:
Over-indebted consumers have the option of applying for voluntary sequestration also known as voluntary surrender. This process is possible where the consumers’ liabilities exceed their assets and there is a sufficient dividend or reasonable prospects that a sufficient dividend can be realised if the consumer is sequestrated. One effect of sequestration is that one’s debt is “written off” and the creditors must submit all their claims to the Trustee of the insolvent estate who is appointed by the court once the sequestration application is granted. Click Here to find out more.
- Liquidation of a Company:
The liquidation of a company deals with finalising the affairs of the company by tracing its assets, taking control of them and realising them in a manner that is to the benefit of the company’s creditors. The proceeds are applied firstly for the payment of creditors according to the rating of their preferences, and thereafter the distribution of the residue among shareholder according to their rights. Click Here to find out more.
- Debt Settlement Negotiation:
Consumers who want to settle any debt, must keep in mind that many creditors will offer a reduced settlement amount. This is generally a discounted amount of the outstanding balance and is valid for a limited period of time. Factors such as how “old” the debt is, the amount of the claim, whether any legal action has been taken pursuant to the claim arising can also affect the debt settlement negotiation process and the final settlement amount offered by the creditor. Besides negotiating settlement of the capital amount, interest, legal fees and interest must be checked to ensure that such charges are in accordance with the National Credit Act 34 of 2005. Click Here to find out more.
- Reckless Credit Determination:
The granting of reckless credit does not by itself entitle a consumer to approach a court to obtain a declaration that the credit agreement is reckless. Reckless credit is an ancillary consideration. A court is only entitled to consider whether a credit agreement is reckless when that credit agreement is already before court for some other reason, such as a credit provider attempting to enforce that credit agreement or a consumer attempting to obtain a Debt Restructuring Order. Click Here to find out more.
- Credit Report Restoration:
Your credit record is essentially a detailed report on how well you manage your credit. In terms of the National Credit Act 34 of 2005, consumers are entitled to free copies of their credit reports once a year. It is advisable that one obtains their credit reports from at least four of the major credit bureaux, namely Transunion, Experian, XDS and Compuscan, as consumer credit information, contained in credit reports, can vary amongst the different credit bureaux. If you already have your credit report and would like a non-obligatory credit repair assessment or if you want help to get your credit report then email: firstname.lastname@example.org Or Click Here to find out more.
- Cancellation of Debt Review:
On the 03 September 2019, the Johannesburg High Court delivered a “full bench decision” (that is, a decision given by three Judges) which clarifies the debt review exit process and the right to exit debt review. (click here to read the full bench decision). It is now no longer an “automatic” right to be able to cancel the debt review process simply on the basis of improved financial circumstances. Click Here to find out more.
- Cancellation, i.e. Rescission of High Court Judgments:
The National Credit Amendment Act essentially made redundant the necessity to rescind a judgment that is “paid up” as a paid up judgment can be removed by the credit bureaux without it being rescinded or set aside. As High Court judgments are typically taken for amounts that exceed R100 000.00 and are seldom immediately “paid up” after the judgment is granted, the need to rescind a High Court judgment often arises where the arrears relating to the High Court judgment have been “paid up” and the consumer wants the judgment off his or her credit report. The requirements to rescind and cancel a High Court judgment differ from the requirements of rescinding and cancelling a magistrate court judgment. Click Here to find out more.
- Cancellation, i.e. Rescission of Sequestration Court Orders, or Rehabilitation:
Rehabilitation brings an end to the sequestration process and the insolvent is then deemed to be rehabilitated once the rehabilitation application is granted. The rehabilitated applicant will no longer be legally prohibited from obtaining credit and can hold positions such as a company director, a position that could not have been held had the insolvent not become rehabilitated. An insolvent is automatically rehabilitated by the “passage of time” which is currently after 10 years (calculated from the date of sequestration) or by application to court prior to the passage of time. Click Here to find out more.
- Cancellation, i.e. Rescission of Administration Court Orders:
The legal process to stop an administration order for debt repayment to an administrator who is then responsible for distributing the debt repayment to the debtor’s creditors entails the rescission of the court order that enforces the civil debt administration. We are experts in the rescission of administration orders. Click Here to find out more.
- Cancellation, i.e. Rescission of Emolument Attachment or “Garnishee” Orders:
We assist individuals and employers with the identification of possibly fraudulent ‘garnishee orders’, as well as the cancellation or rescission of EAO’s (Emolument Attachment Orders) and in some instances, with the recovery of monies paid as a result of such fraud. Click Here to find out more.
We assist consumers with finding recourse and enforcing their rights as consumers, with regards to the purchase of faulty goods, inadequate service delivery, enforcement of warranties and guaranties etc. Click Here to find out more…
- Change of Matrimonial Property System / Post Nuptial Contracts
(1) A husband and wife, whether married before or after the commencement of this Act, may jointly apply to a court for leave to change the matrimonial property system, including the marital power, which applies to their marriage, and the court may, if satisfied that—
(a) there are sound reasons for the proposed change, for example, the husband and wife were not aware of the fact that they were deemed to be automatically married in community of property when they got married;
(b) sufficient notice of the proposed change has been given to all the creditors of the spouses via registered post. The parties’ intention to change their marital property regime shall be given to the Registrar of Deeds and shall also be published in the Government Gazette and two local newspapers at least two weeks prior to the date on which the application will be heard;
(c) no other person will be prejudiced by the proposed change, for example, creditors’ rights to recover against the parties in terms of existing agreements must be addressed in the application. Hence, the application must give sufficient insight into the parties’ financial circumstances as at the time the application is made.
- Marrying out of Community of Property / Ante Nuptial Contracts
In our law, a marriage that is not entered into out of community of property in terms of an ante nuptial contract by which community of property and community of loss are excluded, is deemed to be entered into in community of property. This means that the spouses have one, joint estate as opposed to separate estates and as such, each spouse is jointly and severally liable for the debts of their estate.Every marriage out of community of property in terms of an ante nuptial contract by which community of property and community of profit and loss are excluded is subject to the accrual system. The ante nuptial contract can however expressly exclude the accrual system. The accrual of the estate is the amount by which the estate of a spouse estate has increased since the date or commencement of the marriage. In other words, the net value of the spouse’s estate at the dissolution of the marriage less the net value of the spouse’s estate at the commencement of the marriage.
If the accrual system is not excluded, then should the marriage dissolve, by divorce or by the death of one or both of the spouses, the spouse whose estate shows no accrual or a smaller accrual than the estate of the other spouse, or his estate if he is deceased, acquires a claim against the other spouse or his estate for an amount equal to half of the difference between the accrual of the respective estates of the spouses.
- Administration of Deceased Estates
We assist with the reporting and finalizing of deceased estates which includes having us appointed as an Executor where the deceased has not appointed an Executor or does not have a will. Where the deceased has left a will, we assist the heirs and beneficiaries with the distribution of any property and assets in terms of the provisions of the will.
Appointment of an Executor
In estates where the assets are valued more than R125 000, or where the estate is insolvent, an Executor is appointed by the Master in whose jurisdiction the deceased was resident at the time of his or her death. This is normally the person named in the will as Executor, or if there is no will, the person nominated by the heirs. It should be noted, however, that if the Executor is a lay person, and not an Attorney, Trust Company or Accounting Firm, the nominated person, unless exempted by the deceased’s will, will be required to lodge security to the full value of the estate unless the person is the parent, spouse or child of the deceased.
The executor is entitled to the following fee:
- on the gross value of assets in an estate: 3,5%;
- on income accrued and collected after death of the deceased: 6%
Provided that the remuneration in respect of any deceased estate shall not be less than R350.
The executor is also entitled to charge VAT on this fee, if he is registered as such, or if the agent appointed to assist in administering the estate, is registered as such.
If the original will of the deceased cannot be found
Where the deceased’s original will is missing or cannot be found, it is important to note that the Master will not accept a certified copy of a will. If the original will is not available, the estate will devolve according to the Intestate Succession Act, unless an application is lodged with the High Court calling for the acceptance of the copy of the will as a valid will and the High Court does in fact grant an order to that effect.
The National Credit Act (NCA) is, to a very large extent, aimed at protecting the consumer. To meet this objective, it affords consumers various rights. These rights are aimed at promoting equity in the credit market by providing a balance between the...
The National Credit Act regulates how accounts can be settled early. To begin with, a consumer would need a settlement amount from the credit provider and the NCA gives the consumer certain rights with regard to this. Section 113 of the National Credit Act: Statement...
In Duplum - How much do you owe? Section 103(5) of the National Credit Act limits the amount that a creditor may recover for a credit agreement, by limiting the collection costs that may be charged if a consumer was to default on a credit agreement. The maximum amount...
Section 108 of The National Credit Act enforces: The right to know how much you owe and how it has been calculated. In respect of a mortgage bond, the credit provider must deliver a periodic statement at least every six months to the consumer. In the case of an...
In December 2016, three people were ordered to pay R180 000.00 in fines for failing to comply with debt counselling regulations. The fines were imposed by the National Consumer Tribunal (the "NCT") after it was discovered that the guilty parties had been operating a...
Sequestration some salient points: High Court procedure – more costly Court grants only IF it is in the interests of your creditors – no guarantees: Your assets must cover the debts Associated costs of sequestration are paid out of your estate, i.e. bad...
Credit repair in South Africa has become a formidable industry. Only ten years ago, one needed an attorney to improve one’s credit record. Today there are dozens of so-called credit repair agencies and most do not employ attorneys, and many do not have any legal...
An emoluments attachment order, or “garnishee” may be amended or rescinded provided the person bringing the application shows a valid reason for doing so. However, this is limited to the existence or validity of the order or the correctness of the balance being...
The collection of prescribed debt has been is now prohibited. No person may sell a debt under a credit agreement that has been extinguished by prescription under the Prescription Act 68 of 1969. Further, no person may continue the collection of, or re-activate a debt...
An administration order is granted in terms of the Magistrates’ Court Act 32 of 1944 where the consumers debt is less than R50 000.00. An administrator is then appointed to collect a monthly amount that is distributed amongst the consumers’ creditors as detailed in...
Joe was diagnosed with heart disease and had to reduce his working hours, with the resultant effect that his monthly income decreased. As a result, Joe tried to negotiate with his bank to try and save the house he had bought just a few years ago, the said house having...
The noun “credit” is strictly defined in the National Credit Act 34 of 2005 as “a deferral of payment of money owed to a person, or a promise to defer such a payment” or “a promise to advance or pay money to or at the direction of another person”. A credit provider is...
Data-retention periods for credit bureau information The National Credit Act prescribes the maximum periods for which consumer credit information may be recorded on the consumer’s credit record. Regulation 17(1) of the National Credit Act sets the maximum periods for...
The effect of Rougier v Nedbank The National Credit Act 34 of 2005 essentially gives a consumer the right to apply to a debt counsellor for debt review if he is of the opinion that he is over-indebted. This right is entrenched in section 86(1) and gives a consumer an...
Nicky Campbell is one of the leading consumer and credit law attorneys in South Africa. Having obtained her Bachelor of Arts degree with distinction, and her Bachelor of Laws suma cum laude at Rhodes University she was awarded the Juta prize for ‘Best Law Student in the Country.’ A Rhodes scholarship finalist, she later obtained a Master of Philosophy degree at Cambridge University. More about Nicky
CAMPBELL ATTORNEYS ON TV
Morning Live (SABC 2) Interview conducted by Peter Ndoro