DCASA Debt Counsellors Meeting
The Debt Counsellors Association of South Africa (DCASA) met with members during July to discuss industry and association matters.
The meeting opened with a word from the event co-sponsor DC Partner. DC Partner are one of the four NCR registered Payment Distribution Agencies. These firms are provided for through the National Credit Act and help consumers make the exact right payment, at the right time to the right account.
Representatives from other PDAs like the newly registered CollectNet attended and helped comment on PDA related issues.
Debt Counsellor, Eugene Cillier spoke to those attending about court cases like De Beer V Nedbank. It was an appeal matter which the consumer lost. The consumer had applied for debt review after getting a Section 129 letter. The ruling says that legal proceedings had begun when the bank sent the letter and summons. In this case, the 10 days allowed for in the Section 129 letter had already passed before the consumer applied for debt review. As a result, the court ruled that the credit provider had the right to exclude the account from the debt review. Legal commencement of legal proceedings as mentioned in the Section 129 letter is now defined as being the date that the summons was delivered (not issued) and brought to the attention of the consumer.
This is a great ruling for consumers wanting to get help from a Debt Counsellor when credit providers are sending them scary letters and even threatening to send summonses.
Another matter discussed is the case in the High Court In limpopo: Adri Botha v Bernice Koekemoer & Others as well as another matter involving MSA Consultants and one of their clients. In these cases, the consumers involved were asking the court to remove their debt review status because the Debt Counsellors are not empowered to do so (before all the debt was paid up).
In both cases, the debt review matters had not yet gone to court and no debt restructuring court order had not been issued. These cases seemed to revolve around Section 86(7)(b) findings. These consumers now wanted to leave debt review and access credit once again.
The ruling mentions that even when a consent order application is made, where all parties are happy, the court still should exercise judicial oversight and not just rubber stamp the matter.
The High Court found that until there is an order of the court the consumer is not actually over-indebted since the Debt Counsellor only makes proposals and recommendations not a finding of overindebtedness. The ruling also stresses that Debt Counsellors must send matters to court (without defining when this would be the case). Also, it says that magistrates courts can have the authority to declare someone not overindebted (which is contrary to other rulings which say that this is not the case).
Credit Bureau status for consumers under debt review was discussed and the lack of detail on credit bureau reports was highlighted. There is currently only one very basic and uninformative listing that the bureaus use at present.
A discussion about the various results from the Debt Review Awards followed with a look at the 2019 process and call for refinements suggestions as the process begins in 2 months time again.
A round up of recent Credit Industry Forum (CIF) matters was given. Recently CIF has been discussing joint bonds, DCRS changes, NCR Debt Help and the housing of DCRS. POPI Act restrictions within the industry and how to deal with them. The all important withdrawal guideline as issued by the NCR is back on the table and positive changes may be made (if everyone can agree on them and the NCR then sign off on them).
There was a heated discussion about the draft “debt intervention” bill and the proposal to make not reporting possible reckless credit criminal. This would mean that Debt Counsellors could get into trouble if they mistakenly do not make an averment of reckless credit on an account. It also would require credit providers to make accusations about each other’s credit offered to consumers.
Application of Induplum, as well as FNBs account splitting policy, were some of the topics covered in the general section of the meeting. A Constitutional Court ruling indicates that accepting of a debt review restructuring arrangement can cure a default on an account. This then means that this default would not be applicable for calculation of induplum.
Members of the association will soon be meeting in Gauteng at the annual DCASA conference during August. A breif review of what will be discussed was highlighted before lunch was served and the meeting came to a close.