- The right to apply for credit
- Protection against discrimination
- The right to reasons for refusal of credit
- The right to information in an official language
- The right to information in plain and understandable language
- The right to receive documents
- The right to access and challenge credit records and information
- How to dispute incorrect consumer credit information
- Data-retention periods for credit bureau information
- The right to apply for debt review
- The right to be issued with a clearance certificate
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 rights and responsibilities of credit providers and consumers. In view of the large number of illiterate and uneducated consumers in the South African credit industry, extensive protection in the form of a wide variety of consumer rights is essential to ensure a credit market that is accessible and sustainable for all South Africans, particularly those who, historically, have been unable to access credit.
For every right it gives a consumer, the Act places a corresponding duty on the credit provider that is party to a credit agreement with that consumer. The corresponding obligation applies not only to the credit provider, but also to the providers’ agents and employees. As many consumers are not fully aware of their consumer rights, and the ensuing obligations the credit providers must discharge, we shall address and discuss the various consumers’ rights below. Each month, we shall add more rights to the list.
Section 60 provides that every adult natural person and every juristic person or association of persons has a right to apply to a credit provider for credit. It must be noted that section 60 provides for the right to apply for credit, not for credit to be granted. Subject to sections 61, 62 and 66, a credit provider has a right to refuse to enter into a credit agreement with any prospective consumer on reasonable commercial grounds consistent with its customary risk-management and underwriting practices.
It is submitted that nothing in the Act gives any person the right to require a credit provider to enter into a credit agreement with him. Where a credit application is declined on the basis of an affordability assessment having been conducted, a consumer who is aggrieved by the outcome of an affordability assessment may at any time lodge a complaint in terms of section 134 with the credit provider for dispute resolution. The consumer can also approach the National Credit Regulator to resolve the complaint in terms of section 136. If the National Credit Regulator issues a notice of non-referral in response to a complaint, the consumer may refer the matter directly to the National Consumer Tribunal, subject to its rules of procedure.
It is arguable that the Regulations regarding the “Removal of Adverse Consumer Credit Information and Information relating to Paid up Judgments” also enhance the consumer’s right to apply for credit. Similarly, the significant amendments to the assessment mechanisms and procedures to be used by credit providers before extending credit to any person will inevitably curtail the right to apply for credit. Credit providers are prohibited from using adverse consumer credit information relating to paid up judgments that have been removed in terms of the aforementioned Regulations for any reason, including credit scoring and assessment, and, are further prohibited from re-submitting adverse consumer credit information and information relating to paid up judgments that have been removed in terms of the said Regulations.
Section 61(1) of the National Credit Act prohibits a credit provider from unfairly discriminating directly or indirectly against a consumer on one or more grounds set out in section 9(3) of the Constitution or Chapter 2 of the Promotion of Equality and Prevention of Unfair Discrimination Act. This protection against discrimination applies to
a) assessing the ability of the person to meet the obligations of a proposed credit agreement;
b) deciding whether to refuse an application to enter into a credit agreement, or to offer or enter into a credit agreement;
c) determining any aspect of the cost of a credit agreement to the consumer;
d) proposing or agreeing the terms and conditions of a credit agreement;
e) assessing or requiring compliance by the person with the terms of a credit agreement;
f) exercising any right of the credit provider under a credit agreement, this Act or applicable provincial legislation;
g) determining whether to continue, enforce, seek judgment in respect of, or terminate a credit agreement; or
h) determining whether to report, or reporting, any credit information or record.
The prohibition against discrimination set out in section 61(1), read with the changes required by the context, applies equally to
a) a credit bureau, when offering its services to the public, and when accepting, compiling, analysing, modifying or reporting any credit information or record;
b) the ombud with jurisdiction or alternative dispute resolution agent, when offering or holding out the ability to resolve a dispute or assist in the resolution of a dispute between a credit provider and a consumer in terms of this Act, or in accepting or refusing a referral of such a matter, or in delivering any such service to credit providers and consumers;
c) a debt counsellor when offering or holding out the ability to serve as a debt counsellor in terms of this Act, or in accepting or refusing a referral of such a matter, or in delivering any such service to consumers; and
d) an employer or trade union, when acting in terms of section 75(3) or (4).
Section 61(1) and (2) prohibits unfair discrimination against an association or juristic person based on the characteristics of any natural person who is a member, associate, owner, manager, employee, client or customer of that association or juristic person. In accordance with section 61(4). It is not discrimination, on the basis of age, to
a) refuse to receive or consider an application for credit from an unemancipated minor; or
b) refuse to offer an unlawful credit agreement to, or enter into an unlawful credit agreement with, an unemancipated minor.
Although a credit provider may determine for itself any scoring or other evaluative mechanism or model to use in managing, underwriting and pricing credit risk, such model or mechanism must not be “founded or structured upon a statistical or other analysis in which the basis of risk categorisation, differentiation or assessment is a ground of unfair discrimination prohibited in section 9(3) of the Constitution”.
When a credit provider contravenes section 61, the consumer may institute proceedings before an equality court, in terms of Chapter 4 of the Promotion of Equality and Prevention of Unfair Discrimination Act. Such a complaint may also be referred to the Regulator in terms of section 136. If the complaint appears to be valid, the Regulator is obliged to refer it to the equality court.
In terms of section 61(7) a court may infer that a credit provider has discriminated unfairly against a consumer or prospective consumer if that credit provider knew or reasonably could have known that the consumer or prospective consumer was a historically disadvantaged person. This inference may also be drawn if a credit provider makes a decision contemplated in section 62(1)(a) to (d), with respect to that consumer or prospective consumer and refuses, or fails without reasonable cause, to respond to a request in terms of section 62 in respect of that decision.
A consumer is entitled to know the reasons why the credit he applied for was refused. On request from a consumer, a credit provider must advise the consumer in writing of the dominant reason as to why the credit was refused.
The right to be given reasons for refusal of credit applies when the credit provider:
a) refuses to enter into a credit agreement with a consumer;
b) offers a consumer a credit limit lower than that applied for by the consumer, or reduces the credit limit of an existing credit facility;
c) rejects a consumer’s request to increase the credit limit of an existing credit facility; or
d) refuses to renew an expiring credit card or similar renewable credit facility enjoyed by that consumer.
When responding to a request in terms of section 62(1), a credit provider whose decision is based on an adverse credit report received from a credit bureau must advise the consumer in writing of the name, address and other contact particulars of that credit bureau.
Inevitably it will happen in practice that certain consumers may harass credit providers with frivolous requests for reasons. On application by a credit provider, the Tribunal may make an order limiting the credit provider’s obligation in terms of section 62 if the Tribunal is satisfied that the consumer’s requests for information are frivolous or vexatious.
- Mr. Dlamini’s failure to comply with a purely procedural obligation was not due to an unwillingness to comply but rather an unawareness of such an obligation;
- the onus is on credit providers to inform consumers of their rights and responsibilities and where possible, creditors should also take reasonable steps to facilitate compliance by consumers with their responsibilities;
- the National Credit Act is aimed specifically at consumers to reverse historical socio-economic inequalities and adjust the imbalances;
- a provision is unlawful if it defeats the purposes or policies of the Act or deceives a consumer. The selective disclosure of Mr. Dlamini’s section 121 rights was deceptive;
- where a provision is found to be unlawful, the court must sever the unlawful provision from the agreement, or alter it to render it lawful, if reasonable to do so. In this instance, the form and get-up of the agreement was found to be inconsistent with the Act and its regulations, as the creditor had not interpreted, translated or explained its material terms and that severance of the unlawful provision was not an option.
In Standard Bank of South Africa Ltd v Dlamini the court reiterated that a document is in plain language if it is reasonable to conclude that an ordinary consumer of the class of persons for whom the document is intended, with average literacy skills and minimal credit experience, could be expected to understand the content, significance and import of the document without undue effort, having regard to the organisation, form and style of the document, and the vocabulary usage and sentence structure of the text. In this instance, the court found that the agreement was unduly lengthy and verbose, for instance, the terms and conditions spanned over five pages and incorporated 18 main clauses with several sub-clauses, and that Mr. Dlamini’s rights in terms of section 63 and section 64 were breached.
- 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;
- by fax;
- by e-mail; or
- by printable web-page.
Section 70 of the National Credit Act prescribes what consumer credit information may be reported and to whom it may be reported.
In terms of section 70(1) “consumer credit information” includes:
(a) a person’s credit history, including applications for credit, credit agreements to which the person is or has been a party, pattern of payment or default under any such credit agreements, debt re-arrangement in terms of Act, incidence of enforcement actions with respect to any such credit agreement, the circumstances of termination of any such credit agreement, and related matters; for example include civil court judgments, debt restructuring, adverse classifications of consumer behaviour, adverse classifications of enforcement action, administration orders, sequestration, liquidations
(b) a person’s financial history, including the person’s past and current income, assets and debts, and other related matters within the scope of that person’s financial means, prospects and obligations and related matters;
(c) a person’s education, employment, career, professional or business history, including the circumstances of termination of any employment, career, professional or business relationship, and related matters; or
(d) a person’s identity, including the person’s name, date of birth, identity number, marital status and family relationships, past and current addresses and other contact details, and related matters.
In National Credit Regulator v Southern African Fraud Prevention Services it was held that fraud information is a subset of consumer credit information as it “equally impacts the credit provider’s decision whether or not to grant credit to the affected consumer”. Such information falls under Regulation 17, category 5 and as such, is in fact a subjective adverse classification of consumer behaviour that can be retained on the consumer’s credit report for a maximum period of 1 year. Accordingly, fraud information must be expunged from the consumer’s credit reports in terms of section 70(2)(f) read with Regulation 17(1).
In practice, incorrect credit information about a specific consumer is sometimes reported. To address this, section 72, read together with regulation 20, provides the consumer with the right to access and challenge credit records and information.
Every person has a right to be advised by a credit provider, at least 20 business days before any adverse information concerning that person is reported by the credit provider to a credit bureau, of that credit provider’s intention of reporting such information, and to receive a copy of that information upon request.
A consumer may challenge the accuracy of any information on his credit report. The credit bureau, credit provider or National Credit Regulator must then take reasonable steps to find evidence that supports the challenged information, within 20 business days.
When credible evidence is found to prove the veracity of the information challenged, a copy of that evidence must be given to the person who challenged the information. Should the consumer seek to challenge the “credible evidence”, he may make an application to the National Credit Regulator to investigate the disputed information. This application must be made within 20 business days after the consumer’s receiving a copy of the “evidence”.
The National Credit Act prescribes the maximum periods for which consumer credit information may be reflected and used for credit scoring or credit-assessment purposes. The maximum periods for the retention of this information is as follows:
|Categories of consumer credit information||Description||Maximum period|
|1. Details and results of disputed lodged by consumers||Number and nature of complaints lodged and whether complaint was rejected. No information may be displayed on complaints that were upheld.||6 months|
|2. Enquiries||Number of enquiries made on a consumer’s record, including the name of the entity/person who made the enquiry and a contact person if available||1 year|
|3. Payment profile||Factual information pertaining to the payment profile of the consumer||5 years|
|4. Adverse classifications of consumer behaviour||Subjective classifications of consumer behaviour||1 year or within fourteen business days after settlement by the consumer|
|5. Adverse classifications of enforcement action||Classification related to enforcement action taken by the credit provider||1 year or within fourteen business days after settlement by the consumer|
|6. Debt restructuring||As per section 86 of the Act, an order given by the Court or Tribunal||Within the period prescribed in section 71(1) of the Act or until a clearance certificate is issued|
|7. Civil-court judgments||Civil-court judgments including default judgment||The earlier of 5 years or until the judgment is rescinded by a court or abandoned by the credit provider in terms of section 86 of the Magistrates’ Courts Act 32 of 1944 or within the period prescribed in section 71A of the Act|
|8. Maintenance judgments in terms of the Maintenance Act 99 of 1998||As per the court judgment||Until the judgment is rescinded by court|
|9. Sequestration order||As per the court order||5 years or until the rehabilitation order is granted|
|10. Rehabilitation||As per the court order||5 years|
|11. Administration order||As per the court order||5 years|
If a consumer is of the opinion, that he is over-indebted, he has the right in terms of Section 86 of the National Credit Act to apply to a debt counsellor for debt review.
The debt counsellor can also investigate whether any reckless credit has been extended to the consumer. In this way, the process of debt review is designed to provide the consumer with an opportunity for debt re-arrangement. It should be noted, however, that the rights relating to debt review, declarations of over-indebtedness, reckless credit and debt re-arrangement do not apply to juristic persons.
A consumer whose debts have been re-arranged under debt review must be issued with a clearance certificate by a debt counsellor within seven days after the consumer has satisfied all the obligations under every credit agreement that was subject to that debt re-arrangement order or agreement, in accordance with that order or agreement. Alternatively, if the consumer can demonstrate:
- financial ability to satisfy the future obligations in terms of the re-arrangement order or agreement under a mortgage agreement which secures a credit agreement for the purchase or improvement of immovable property; or any other long term agreement as may be prescribed;
- that there are no arrears on the re-arranged agreements, and
- that all obligations under every credit agreement included in the re-arrangement order or agreement, other than a mortgage agreement which secures a credit agreement for the purchase or improvement of immovable property; or any other long term agreement, have been settled in full.
Should a debt counsellor decide not to issue or fails to issue a clearance certificate as contemplated above, the consumer can apply to the National Consumer Tribunal, on the prescribed Form TI.71(3), to review the debt counsellor’s decision not to, or failure to, issue the clearance certificate. If the Tribunal is satisfied that the consumer is entitled to the clearance certificate, the Tribunal may order the debt counsellor to issue a clearance certificate to the consumer.
Further, the debt counsellor is obliged to file a certified copy of the clearance certificate with the national register of credit agreements and all registered credit bureaux within seven days after issuance of the clearance certificate. Where a debt counsellor fails to file a certified copy of a clearance certificate, the consumer may file a certified copy of the clearance certificate with the National Credit Regulator and the consumer may also lodge a complaint against the debt counsellor with the National Credit Regulator. It is important to note that prior to the National Credit Amendment Act, the debt counsellor was not obliged to submit the clearance certificate to the national register and to the credit bureaux.
In practice, a person who qualifies for a clearance certificate would obtain the clearance certificate from the debt counsellor and present it to the credit bureaux. Upon receipt of a copy of a clearance certificate, a credit bureau, or the national credit register, must expunge from its records:
- the fact that the consumer was subject to the relevant debt re-arrangement order or agreement;
- any information relating to any default by the consumer that may have –
- precipitated the debt re-arrangement; or
- been considered in making the debt re-arrangement order or agreement; and
- any record that a particular credit agreement was subject to the relevant debt re-arrangement order or agreement.
In Thizwilondi Ananuas Magadze and Adcap and Others; Soyaphi Green Ndlovu and Bernice Koekemoer and Others, Judge AJ Neukircher delivered a combined judgment as the applications sought were virtually mirror images of each other, other than specifics pertaining to each applicant. The applicants, not being entitled to a clearance certificate, as per section 71, sought to terminate the debt review process and be declared no longer over-indebted. The question as to whether a court order, declaring the applicants no longer over-indebted has the same effect as a clearance certificate, as detailed above, was considered. The learned judge pointed out that section 88(1) does not have a similar proviso to section 71(5) which is the expunging of the credit bureau records. However, it was held that to “grant an order that falls short of failing to expunge the consumer’s credit record in toto would effectively mean that section 71 would carry more weight than an order issued out by the High Court and that situation would be untenable”. The NCA is “geared towards the protection of the consumer, and where relevant, the fiscal rehabilitation of the consumer”. The purposes of the NCA include the protection of consumers by promoting the development of a credit market that is accessible to all South Africans, and in particular to those who have historically been unable to access credit under sustainable market conditions.