NCR Workshop Review – Part 1
NCR Workshop for Debt Counsellors
Debtfree Presents a two part review of the recent NCR Workshop for Debt Counsellors
Check out the pictures from the event on our facebook page: https://www.facebook.com/debtfree.digi
Morris Maluleke served as programme director for the day at the recent NCR Workshop for Debt Counsellors. He opened the workshop with a few brief words before handing over to Kedilatile Malakalaka. Kedilatile discussed the goals of day’s workshop. The NCR are not holding a single annual conference as they have done in the past but rather are trying to do workshops across the country. They hope this will help them reach more of the DC community who perhaps were otherwise unable to travel up to Gauteng each year. Kedi briefly discussed the NCR’s purpose in pulling the industry codes of conduct. Which boiled down to the fact the NCR wish to keep close control on the complaints and regulatory responsibilities. She pointed to the fact that there is still a gap in consumer education. The NCR are trying to help in this area. Debt Counsellors can be part of educational training as well by supporting local financial wellness programs. In other news she spoke of how the Credit Industry Forum or CIF will meet on the 1st of Oct. Concerns have been raised about the inclusion of non association affiliated DCs. Kedi said that anything which is discussed at the forum will be disseminated to all parties. The NCR will perhaps even call for written submissions on certain subjects.
The Second Speaker of the day was Senior Magistrate Henro Du Plessis (Gauteng) He went into detail regarding the recent 2 Judge ruling on MFC v Jan Joubert (DC) Marais (consumers) in the North Gauteng High Court. In this matter the Debt Counsellor (Joubert) had brought a court application for the debt review which had been granted. The matter was later taken for a rescission by MFC who later realised they wanted to sell the consumers car. The ruling in this case discusses rule 55 of the MCA and how the founding affidavit needs to be comprehensive. The case went the way of MFC who attacked the original courts ruling based on the fact that the founding affidavit was too brief and did not have lots of documentation backing up the statements made. In the original Court Order the vehicle repayment was rescheduled over 12 years. The Judges and MFC did not like that. The Judges said the founding affidavit must contain ALL the facts and evidence. One part of this lacking back in the original application for debt restructuring was that the consumers salary slip was not attached to original affidavit ( it was later provided in a supplementary affidavit). Even though it was later provided the Judges agreed with MFC that this was slack on the DCs part and should have been there from the start. MFC said the initial application to the court did not really prove the consumers were over indebted. (It was later shown that they were)
The Judges stress the need for good faith by all parties incl. the DC and consumer. The Judges say that sale of assets is where possible the best course. ( DCs point out that this is normally not possible in the 60 day window in which the matter needs to be finalised and brought to court). A Founding affidavit would have to explain keeping an asset such as a vehicle. The Judges also want all types of debt included or an explanation of why excluded (as happened with 2 smaller debts in this case). In their judgement the Judges quote some sort of ” industry agreed consensual arrangement” Which has to do with old Task Team guidelines which many Credit Providers contributed towards. In those guidelines a period of 84 months was mentioned for car repayments not 12 years as was ordered by the Magistrate. In a surprise move the Court not only over turned the ruling and sent the matter back to the Magistrates court but also ordered punitive costs against the DC. It seems that applications for Debt review will now have to become more lengthy affairs in order to prevent this sort of rescission application which might come up later.
Mr. Craig Sassman spoke on behalf of the Credit Bureau Association. He spoke about the need for all Debt Counsellors to use credit bureau reports to evaluate levels of indebtedness. He stressed that Clearance Certificates must be on official letterheads and must be signed by the DC. It is interesting to note that arrears accounts need a clearance certificate or will remain on the system even though the ‘debt counselling’ flag is removed from the consumers profile. If DC notifies them via the ncrdebthelp system that the debt review has ended that flag is removed but any adverse payment info will remain and can prejudice consumers. This will always then be the case when a consumer withdraws before the process is concluded since the DC cannot then issue such a certificate.
Jolindie Ferreira from the NCT discussed how tribunal operates. She ran through the various phases of an application to the NCT. The NCT try to be quick, accessible, fair. At present the NCT are aiming for a 3 month turn around on consent orders. Practice notes are available on the NCT’s website. They will help DCs prepare their applications in a step by step manner. http://www.thenct.org.za/practice-notes
Janie Van Wyk of the University of Pretoria Law Clinic who are very involved in assisting the NCR with regard to research into the NCA and debt review presented in regard to EAO (commonly called Garnishee orders). It was highlighted that many Garnishee orders are unfortunately fake. One simple method to check the veracity of an order is to see whether it was stamped by a clerk of the court. It was later pointed out that such an order is in fact illegal or invalid.
Then began the NCR portion of the workshop:
Maryke Moore discussed issues that have been noted in NCR monitoring visits. For example the use of the NCR logo and display of NCR stickers and certificates. Loading consumers onto the ncrdebthelp system before they sign a form 16. Another common issue is the lack of annual reviews by DC. In an amusing tale she told how some DCs fail to add a date to the form 17.1. Some DCs are also not submitting their Form 42 quarterly statistical report either on time or at all.
Takalani Macau spoke about the NCR’s complaints department. Their focus is clearly on the consumer. If a Consumer has an issue and the DC wants to let the NCR know the Form 29s should come from the consumer rather than the DC. If it does come from the DC then it is necessary for the DC to include documents from the client giving them permission to do so. So rather get the consumer to send the complaint in. If you have an urgent matter relating to the sale of an asset let the NCR know in your email header and call them to follow up.
Ronald Sabelo discussed the registration and compliance department. After 5 years the NCR can review the conditions of registration of a DC ( as per the NCA). This has been done and new a set of conditions are soon to be sent out to older DCs. If the DC is not happy they can comment and even approach the NCT to see if they have to comply with the new conditions. He got a few nervous looks from the audience as he considered a recent NCT judgement regarding payment of the DC annual registration renewal fee. In the judgment the NCT says that if you haven’t paid the renewal fee by the due date then your registration has actually ended and you would have to apply all over again should you wish to continue practicing. They did not mention anything about the long application times. Often new DCs wait for around 6 months to be vetted and have a certificate issued.
Joseph Selolo senior legal advisor of the NCR Investigations and Enforcement department discussed how their department is based firmly on the NCA Section 15. They have the authority to enter and investigate matters by accessing computers and files. Recently the NCR have been swooping in on credit providers countrywide investigating illegal credit agreements and practice’s. His presentation had a somewhat threatening tone to it and many attendees stated afterward that they felt they were being warned or threatened. Some said that the threat of fines that were made during the presentation could discourage the newer DCs and those recently qualified from pursuing a career as DCs.
Part 2 will follow tomorrow.