DCASA Podcasts

1Short DCASA Podcasts

/*Click on any link below and scroll down to listen to the podcast without logging in:

Consumer FAQs

1How do I lodge valid complaint against a registered Debt Counsellor or Credit Provider?

If you have a complaint regarding your Debt Counsellor please contact your Debt Counsellor directly. If the matter remains unresolved please contact the NCR directly. You can contact the NCR on 011 554 2600 or 0860 627 627 or send an e-mail to dccomplaints@ncr.org.za

If you have a complaint regarding a Credit Provider please contact the Credit Provider directly. If the matter remains unresolved please contact the NCR directly. You can contact the NCR on 011 554 2600 or 0860 627 627 or send an e-mail to complaints@ncr.org.za

To speed the process up, complete the attached Form 29 and send it to the NCR.

Also visit: http://www.ncr.org.za/sd-complaints

DCASA does not have the judicial power to adjudicate complaints against Debt Counsellor’s or Credit Providers.

Any industry or general Process issue can be referred to DCASA for possible discussion and Industry forums.

Please view document here: Form29

2I Have paid up an account in terms of my Debt Review Court Order, however there is still an outstanding balance on the credit providers books?

Please see attached Newsletter for explanation: 17thEditionConsumerNewsletter

3My debt counsellor failed to reduce my Interest Rates?

In terms of the Act, a Credit Provider is not obliged to consent to reduce interest rates.

  • Unless a Credit Provider consents to the reduction of an interest rate; or
  • If your Debt Counsellor make use of the DCRS systemindustry concessions may be applicable in terms of lower interest rates and/or fees. In terms of the Task Team Guidelines issued by the National Credit Regulator a Credit Provider is obliged to accept a valid DCRS proposal.
4Why did my Debt Counsellor take my monies when I started Debt Review and not pay Creditors?

Firstly, a Debt Counsellor is not allowed in terms of the National Credit Act to collect Debt Review Payments. Payment can be collected by a Registered Payment Distribution Agent (PDA) who will collect a single payment and distribute payments to all Credit Providers.

In terms of the Deb Counsellor Fee Guidelines, issued by the National Credit Regulator, the first amount deducted from your account will be paid to the Debt Counsellors for his fees up to a maximum of R 6000.00. Usually, in practice, the 2nd and 3rd months, in some cases, monies debited from your account will be paid towards your legal fees.

5I have cancelled my Debt Review, but my name is still flagged on the Credit Bureau.

****** Update: In early 2018 new High Court Judgments stated that a Consumer is no longer in a position to exit Debt Review once a Court Order is in place, except by Section 71 of the NCA proceedings. We are still waiting for the NCR to issue updated Withdrawal Guidelines.

Old post....

Prior to February 2015, if a Consumer elected to cancel his/her debt review after a Form 17.2 was issues he/she was entitled to do so and the debt review flag was removed from the Credit Bureaus.

However, in February 2015 the National Credit Regulator issued “Guidelines for the Withdrawal of Debt Review – 002/2015” and shortly thereafter the National Credit Regulator issued “Explanatory Note to the Withdrawal Guidelines” which set out the following scenarios and the manner to cancel your Debt Review effectively.

In short, these Guidelines states the following:

1. A Consumer cancelled before a Form 17.2, recommendation of declaration of over indebtedness, is issued: In terms of the guidelines a Consumer is entitled to withdraw from Debt Review prior to a Form 17.2 declaration of over indebtedness be sent to Credit Providers. This step is usually completed within 20 days (or less) after the Consumer applied for Debt Review. There will be no Debt Review Flag on the Credit Bureau.

2. A Consumer cancelled after a Form 17.2, recommendation of declaration of over indebtedness but before a Court Order is obtained:

The Debt Counsellor has statutory power to recommend that a Consumer be declared over indebted (by way of a Form 17.2) and a Magistrate the power to declare a Consumer over indebted.

The Withdrawal Guidelines states that once the recommendation of over indebtedness is done the Consumers name will be flagged as over indebted on the Credit Bureau’s .

In order to cancel the Debt Review effectively a Consumer should approach the Court to be declared “not over indebted” and “no longer under debt Review” and not just inform the Debt Counsellor that he/she is cancelling.

This Court Application should be done in accordance with Section 87(1)(a) of the National Credit Act asking the Court to reject the Debt Counsellors recommendation of over indebtedness.

The Application should contain the Consumers financial circumstances at that time and should motivate as to why the Consumer is no longer over indebted and no longer required to be under Debt Review.

If the Application is successful this will cause the Credit Bureau flag to be uplifted.

ALTERNATIVELY you should repay all your debts, except your Mortgage Bond, and approach the Debt Counsellor to issue you with a clearance certificate in terms of Section 71 of the National Credit Act read together with the National Credit Regulators “Interpretation of Section 71 of the NCA” Guideline circulated in March 2017.

3. A Consumer was declared Over Indebted by a Court Order:

As there is a Court Order it should be rescinded. A Consumer should apply to Court in order to rescind the existing Court Order. A rescindment should contain the existing Court Order together with the fact that the Consumer was found to be over-indebted, however at this stage the Consumer is no longer over indebted and the Consumer’s financial circumstances should be contained the rescission application as motivation. The Consumer must advise the court that he/she no longer needs to be under Debt Review.

If the rescission is successful the Court Order should be served on all Credit Providers and the Debt Counsellor should lift the debt review flag from the Credit Bureau.

ALTERNATIVELY you should repay all your debts, except your Mortgage Bond, and approach the Debt Counsellor to issue you with a clearance certificate in terms of Section 71 of the National Credit Act read together with the National Credit Regulators “Interpretation of Section 71 of the NCA” Guideline circulated in March 2017.

6When can a Consumer withdraw from debt review? – Janse van Vuuren Full Bench Judgment:

Three scenarios

  1. Form 16 < Form 17.2(b)
  2. Upon application for Debt Review and before the Debt Counsellor makes a declaration of over indebtedness via a Form 17.2 a Consumer can withdraw from Debt Review, preferably in writing.

  3. Form 17.2(b) < Court Order
  4. Once a declaration of over indebtedness has been made but there’s no Debt Review Court Order yet, the most recent Court Case with a Full Bench Judgment declared that, a Consumer may together with the proposal of the Debt Counsellor present additional facts to bring about a rejection of an Over Indebtedness proposal.

    • A Consumer must note that this will be when your financial circumstances have drastically changed, in that you can afford to repay your debt in terms of the original credit agreement;
    • In addition, the arrears including the arrears “caused by the Debt Review application” should also be paid up as if you have never applied for Debt Review. Thus, placing you in the position you would have been to perform in terms of your obligations as per the original credit agreement.
  5. Court Order >
  6. In terms of the said full bench judgment, once a Debt Review Court Order has been granted, the only manner to exit Debt Review is by Section 71 of the NCA.

    • Section 71 of the NCA states that a Consumer has to repay all his/her short-term debt, except long term debt. Which means that all debt has to be paid up, except for a Home Loan in order to be cleared from Debt Review.
7"SCAM - Sell your vehicle and still drive it."

Consumer Beware




National Credit Regulator v Quattro Pawn (Pty) Ltd (NCT/128390/2019/140(1)) [2019] ZANCT 152 (15 September 2019)

National Credit Regulator v Option Deals (Pty) Ltd (NCT/128364/2019/140(1)) [2019] ZANCT 151 (15 September 2019)

The NCR lodged applications to the National Consumer Tribunal to make a proper finding on Quattro Pawn and Option Deals business models, which Quattro Pawn and Option Deals claims to fall outside the jurisdiction of the National Credit Act (NCA).

Although the finer details of each of these schemes are different, their essential nature are the same.

Consumers in desperate need for money, use their paid-up vehicles as security to borrow money from one of these Lenders. Once the Consumer is unable to repay the monies borrowed from the Lender, the Lender repossesses the consumer’s vehicle. This is usually when the Consumer realizes ownership has transferred to the Lender.

These types of Lenders allege that the entity is not bound to the National Credit Act (NCA) nor should it be registered as a Credit Provider.

The Tribunal found, in a number of similar matters, that these schemes are prohibited and that the Lender should have been registered as a Credit Provider under the NCA, because in fact these agreements are “simulated contracts”, which are in actual fact a “secured loan” in terms of the NCA.

Most of these Consumers do not have the intention to sell their cars, but merely to borrow money from the Lender and the Lender disguises these agreements to get some kind of advantage. In this instance it is to avoid the requirements of the NCA.

The Tribunal found that the Lender engaged in prohibited conduct by contravening numerous sections under the NCA, i.e:

  • Operating as a Credit Provider, without being registered as a Credit Provider;
  • Failure to take reasonable steps to assess the Consumer’s credit worthiness;
  • Possible reckless lending, as no affordability assessment was conducted;
  • Failed to adhere to the formal pre-agreement disclosure procedure;
  • Did not keep proper records;
  • Excessive interest rates charged;
  • Charged fees that are not in line with the NCA;
  • Failed to terminate agreements in line with the proper procedures set out in the NCA.

Debt Counsellor FAQs

1NEW!!! Debt Counsellor Annual Renewal Process - 2022
  • The NCR will send registration renewal invoices before the end of June 202.
  • The registrants must pay their renewal fees regardless of whether the invoices are received or not.
  • The renewal fees payable for one branch: R750 - For two or more branches an additional R250 per branch is also payable.
  • Fees are payable on or before the 31st July and the registrants must use the NCRDC No as reference.
  • The registrants must forward proof of payment to fees@ncr.org.za.
  • Payments made during the grace period (01 August – 31 August ) will be subject to penalty fees.
  • Penalties applicable are as follows: R50 for payments received 1 - 15 August and R100 for payments received 16 – 31 August.
  • NCR will only issue renewal certificates to registrants who have paid their renewal fees in full and penalties (if applicable).
  • If no payment is received or there are outstanding renewal fees or penalties by the 1st September the registration will lapse.
2When is the best time to join DCASA?
  • As soon as you are registered as a Debt Counsellor.
  • If you are a staff member of a Debt Counsellor.
3How do I become a Debt Counsellor?

Registration as a Debt Counsellor- Article supplied by the National Credit Regulator

The Act makes provision for the registration of debt counsellors which have complied with all the provisions of the Act and satisfied the training requirements of the NCR.

Debt counsellors will conduct independent enquiries into consumers’ financial circumstances and make recommendations to the courts concerning debt restructuring and suspension of reckless credit agreements.

Requirements for Registering as a Debt Counsellor as per Section 44 and Regulation 10 of the National Credit Amendment Act, 19 of 2014:

  1. Applicant must be 18 years or older
  2. Must have a grade 12 certificate or equivalent level 4 qualification issued by the South African Qualifications Authority in terms of regulation 10 (a) (i).
  3. Must successfully complete a debt counselling course approved by the National Credit Regulator
  4. The following training service providers are approved by the National Credit Regulator to offer DC course:
    • University of Pretoria 012 420 5015
    • Damelin 011 242 3400
    • RUDO 012 663 3251
    • Compuscan Academy 021 888 6048
    • Summit Financial Partners 087 806 1000
  5. Must have a minimum of two years full time working experience in any of the following fields;
    • Consumer Protection;
    • Complaints Resolution;
    • Consumer Advisory Services;
    • Legal or Paralegal Services;
    • Accounting or financial services;
    • Education or training of individuals;
    • Counselling of individuals;
    • General Business Environment.
  6. Must not be subject to an administration order as contemplated in section 74 of the Magistrate‘s court Act 32 of 1944
  7. Must not be subject to debt re-arrangement as contemplated in section 86 and 87 of the National Credit Act.
  8. Must not be engaged in, employed by or acting as an agent for a person that is engaged in –
    • Debt collection;
    • The operation of a credit bureau;
    • Credit provision.
  9. The person must demonstrate ability to manage his / her own finances at the time of applying for registration as well as providing counselling or transfer of skills

Documents and information required for the application for registration as a Debt Counsellor in terms of Section 44 of the National Credit Amendment Act, 19 of 2014:

Please note that your application will not be processed and/or considered without the following:

  • Completed and signed application form (Form 4).
  • A certified copy of your identity or passport document. If non south African Citizen, please provide a certified copy of valid work permit
  • A certified copy of your Matric Certificate or equivalent NQF Level 4 qualification issued by the South African Qualifications Authority (“SAQA”). If it is a foreign qualification, please provide an evaluation certificate issued by the South African Qualifications Authority (“SAQA”).
  • A certified copy of your debt counselling certificate issued by an NCR (National Credit Regulator) accredited training service provider.
  • Proof of registration with the South African Revenue Services (SARS).
  • A copy of your Curriculum Vitae (“CV”) detailing your academic qualifications, full names of previous and current employers, dates of employment, responsibilities and experience obtained during each period of employment.
  • A Criminal Clearance Certificate issued by the South African Police Services (SAPS) or other Service Provider listed in the annexure attached hereto marked A. The clearance certificate must not be older than six (6) months. (Please create a link)
  • Proof of payment of the registration fees:
    1. Non-refundable application fee of R550;
    2. Initial registration fee R500;
    3. Branch fee of R250 per location or premises at or from which the applicant conducts registered activities.
  • A letter from the bank confirming your banking details or a copy of a cancelled blank cheque or a stamped bank statement.

Your application will not be considered if you have not completed the debt counselling course provided by an NCR (National Credit Regulator) accredited training service provider

For further information regarding the application process, please contact the Registrations Department at telephone number 011 554 2700 or email registrations@ncr.org.za

4When can debt be excluded from Debt Review?.

The NCA’s intention is clear on this issue:

  • The process starts with the Consumer providing information as set out in Regulation 24(1).
  • In terms of Regulation 24(b)(iv) the Consumer is required to list all debts, disclosing monthly commitment, total balance outstanding and amount in arrears on all debt. In terms of Regulation 24(b)(vii) the Consumer consent that a Credit Bureau check may be done.
  • In terms of Regulation 24(2) the Debt Counsellor must within five days after receiving and accepting the application for Debt Review notify all Credit Providers listed on the application form, supplied by the Consumer, and the Credit Providers listed on the Credit Bureau.
  • In terms of Regulation 24(3) the Debt Counsellor must verify the information by contacting the Credit Provider or Consumer or use any other verification method. In terms of Section 24(4) the Debt Counsellor may accept the information supplied by the Consumer as correct if the Credit Provider fails to provide the requested information.
  • In terms of Regulation 24(7) the Debt Counsellor must assess the Consumer’s application in terms of Section 86(6)(a) and in this process must refer to the requirements of Section 79 together with Regulation 24(7)(a) - (c).
  • In terms of Section 79 a Consumer is over-indebted if the preponderance of available information at the time of the determination is made indicates that a Consumer is or will be unable to satisfy in a timely manner all obligations under all Credit Agreements to which the Consumer is a party to.
  • Section 86(2) specifies which Credit Agreements must be excluded from a Debt Review applications. If a Consumer is in default under a Credit Agreement and the Credit Provider has proceeded to take steps contemplated in Section 130 to enforce that agreement. This Section provides protection to the Credit Provider as envisaged in Section 2(1) of the NCA which stipulates that the NCA should be interpreted to give effect to the purpose of the Act in Section 3. Section 3 read together with the long title of the Act promotes fairness and equality.
  • A Credit Provider may also terminate the Debt Review in terms of a specific Credit Agreement, in terms of Section 86(10), if 60 business days has lapsed and the Consumer is in default under that Credit Agreement. When a Debt Review in terms of a specific Credit Agreement has been successfully terminated that Credit Agreement is excluded from the Debt Review unless resumption of the Debt Review is ordered in terms of Section 86(11).
  • When enforcement action commences Section 85 makes it possible for Consumers to utilize the relief provided by the Debt Review Process in terms of Section 86. A Court may, in terms of Section 85, refer the matter to a Debt Counsellor.
  • In summary, the Consumer is required to declare all debt and where this has not been done the Debt Counsellor should obtain this from the Credit Bureau report. The Consumer’s over-indebtedness is as a result of all debt (not a selected few). The NCA makes provision for certain debt to be excluded in Section 86(2) and it is the intention of the NCA that all remaining debt be included. Unless all these debt form part of the debt rearrangement process it may be rendered a futile exercise. This was clearly not the intention of the NCA.
  • A Debt Counsellor’s powers are limited to the powers set out in the NCA. This means a Debt Counsellor is not entitled to exclude a Credit Agreement from Debt Review.
  • Section 87 provides for the Debt Counsellor to make a proposal to the Magistrate Court. The Magistrate is a Creature of Statue and the possible relief is defined in 86(7)(c).
  • In Section 86(7)(c) provision is made for one or more of the Credit Agreements to be re-arranged. This provision should however not be construed that an agreement that is not re-arranged is then excluded from the Debt Review.
  • Section 86(7)(c) does not make provision for the Magistrate to exclude the Credit Agreement from Debt Review.
  • A Court is a Creature of Statue and is limited to exercise the powers in terms of Section 87. The Court will therefore not be entitled to order that any Credit Agreement be excluded from Debt Review.
  • The NCA specifies that all Credit Agreements should be included and makes specific provision for when a Credit Agreement may be excluded. This view is reinforced by having regard to the provisions of Section 79(1), where the concept of Consumer over-indebtedness is set out, when it refers to all obligations under all Credit Agreements.
  • Debt Review therefore include all debt unless it has been excluded as set out in Section 86(2) and the NCA does not make provision or authorise any person to exclude any debt from the Debt Review.

A Debt Counsellor’s powers are limited to the powers set out in the NCA. This view was clearly outlined in the NCT Judgement attached hereto. A Debt Counsellor is therefore not entitled to exclude a Credit Agreement from Debt Review. This would include:

  • If the repayment proposal is opposed by a Credit Provider that debt cannot be excluded from Debt Review.
  • A Credit Provider cannot refuse to include a Credit Agreement or issue a “instruction” to exclude a Credit Agreement. Recently some Credit Providers “instruct” Debt Counsellor to exclude Credit Agreements that has been entered into during the 12 months preceding Debt Review.
  • Some Debt Counsellors exclude a Joint bond where the Consumer is the main payer (A Debt Counsellor is not entitled to exclude a Credit Agreement from Debt Review) or a second property or vehicle.

The NCA stipulate when a Credit Agreement can be excluded. This includes Section 86(2), 86(10) and Section 88(3).

The action of Debt Counsellors and Credit Providers to exclude Credit Agreements outside the provisions of the NCA appears to be a non-compliance to the NCA, as stated on the NCT Judgement.

In this matter the NCT approved a Rescission Order due to the fact that not all Credit Agreements were included in the Debt Review.

In this matter the Tribunal referred the exclusion of Credit Agreements to the NCR with a request for steps to enforce compliance.

See attached full Tribunal Judgment:

5Will I get industry information if I am a member?

Yes, you will receive a newsletter, be able to join meetings, attend the annual conference, attend DCASA webinars and submit questions to DCASA.

6Will DCASA assist with staff training?

Yes, you can register your staff and this will enable them to attend meetings and DCASA Webinars.

7How do I FastTrack my knowledge about the Debt Counselling Industry?

If you are a DCASA Member you are in the best position possible to receive industry information and update as soon as it happens.

8Customary Marriages and the Effect thereof on Debt Review.

Customary Marriages and the Effect thereof on Debt Review.

One of the most important question in debt review is whether your client is married and if so whether he/she is married in community of property or out of community of property. As the answer would determine whether it will be a joint or single debt review application.

However, in our diverse country, we fail to take into account customary marriages and the practical implications thereof in debt review.

South Africa recognised this form of marriage on 15 November 2000 by the enactment of the Recognition of Customary Marriages Act. This includes recognition of customary marriages which was entered into prior to the enactment of the Act.

A customary marriage is when people get married under customary law and have complied with the following requirements:

  • Both parties should be above 18 years old;
  • Both should consent to the marriage; and
  • The customary marriage should be negotiated, celebrated and entered into in accordance with customary law.

The Act also requires the marriage to be registered with the Department of Home Affairs within 3 months since celebrating the marriage. The Act also requires the existing customary marriages, which was entered into prior to the Act to be registered.

A customary marriage entered into would have the same effect as being married in community of property, unless the parties entered into an Ante Nuptial Contract, which would deem the marriage to be out of community of property.

It is important to note that where there is only one husband and one wife, the failure to register the customary marriage at the Department of Home Affairs, does not invalidate the customary marriage.

However, if for example, the husband elects to enter into a further customary marriage with another woman. The Act compels the parties to register the marriages with the Department of Home Affairs. The reason being, that the matrimonial property consequences of each marriage must be regulated by a written agreement / contract, the husband should apply to Court to approve the written contract. The Court must ensure that each wife’s property interest is protected.

Accordingly, the effect that a customary marriage would have on a debt review application is the following:

  1. If entered into before the Recognition of Customary Marriages Act (RCMA) and there is only one husband and one wife and the marriage has not been registered, the parties are regarded as married in community of property and both spouses should jointly apply for debt review.
  2. If entered into after the RCMA and there is only one husband and one wife and the marriage has not been registered the parties are regarded as married in community of property and both spouses should apply jointly for debt review.
  3. If entered into after the RCMA and the spouses entered into an Ante Nuptial Contract and registered the marriage within the three month period, the marriage would be regarded as a marriage out of community of property and it is not necessary for a joint application.
  4. If entered into after the RCMA and there is only one husband and wife and the marriage has been registered within the required three month period, the marriage is regarded as in community of property and both spouses should apply jointly for debt review.
  5. If entered into after the RCMA and there is more than one wife or husband and the marriage has not been registered within the three month period, the marriage is not recognised and the parties are not seen as married.
  6. If entered into after the RCMA and there is more than one wife or husband and the marriage has been registered AND a contract / written agreement regulating the property consequences of the marriages has been made an order of court. You should request copies of the court order to determine whether the marriages are in or out of community of property, which will determine whether the application should be a joint application or not.
9Section 126B - Prescription


The Prescription Act, Act 68 of 1969 commenced on 1 December 1970.

The basic principle most Consumers are aware of, is that debt shall be extinguished by prescription in certain instances, namely:

  • 30 years iro mortgage bond, judgment debt, debt iro taxation imposed and debt owed to the State;
  • 15 years iro debt owed to the State;
  • 6 years iro debt arising from a bill of exchange;
  • 3 years iro any other debt.

According to Section 12 of the Act, prescription will commence once the debt is due. Section 14 of the Act further states that interruption of prescription may occur when liability has been acknowledged, and prescription may start afresh once it has been acknowledged.

Judicial interruption may also occur, in accordance with section 15 of the Act, stating that judicial interruption occurs when a summons is served on a debtor for the debt owed.

However, section 15(2) states that if such a process has not been successfully prosecuted to final judgment the “interruption” shall be deemed to lapse and prescription shall not have been deemed to have been interrupted, subject thereto that the debtor does not acknowledge liability.

In most cases a creditor can proceed to claim outstanding debt that became due, even after prescription has taken place. The onus is on the consumer to “raise the defence of prescription”.

However, in March 2015, the National Credit Amendment Act came into operation, one of the most notable amendments was Section 126B(1)(b) of the National Credit Act 34 of 2006 (“the NCA”). Which states the following:

“No person may continue the collection of, or re-activate a debt under a credit agreement to which this Act applies-

  1. which debt has been extinguished by prescription under the Prescription Act 1969 (Act 68 of 1969); and
  2. where the consumer raises the defence of prescription, or would reasonably have raised the defence of prescription had the consumer been aware of such a defence, in response to a demand, whether as part of legal proceedings or otherwise”

Therefore contrary to the above principle, where prescription can be interrupted once a Consumer acknowledged liability after prescription has run its course, a credit agreement which falls within the ambit of the NCA in terms of Section 126B(1)(b) debt may not even be collected upon once the debt has been extinguished by prescription.

Further note that Section 126B(1)(b) does not apply retrospectively on NCA credit agreements, for a more in depth discussion regarding retrospective application, please go to the library section of the website where the applicable case law has been summarised – Kaknis vs Absa Bank Limited & Another.

The full Prescription Act has also been uploaded on the DCASA website, under the library section.

Vanessa Johst

10What is dies non?

Have you heard of the legal term “dies non”, which directly translates as “a day on which no legal business can be done, or which does not count for legal purposes”. This practice usually occurs in the December – January period and derives from practice directives issued by different Courts mostly the High Courts and Constitutional Courts.

This practice has also been informally adopted in the Magistrate Courts. An informal understanding between colleagues has developed where parties do not have to file their documents or pleadings in terms of the Rules of Court within the dies non period.

However, there seems to be a misconception that the Magistrate Courts are closed in its entirety. Especially in the Debt Review Industry that you don’t have to issue your Debt Review Application within the 60 day period IF the 60 day period falls within the dies non< period. This is not correct and your Client may be severally prejudiced if you follow this practice. As such please ensure that your Client’s Debt Review Court Applications are always filed within the 60 day period to avoid Credit Provider terminations.

As such unless the Magistrate Courts do not issue a practice directive indicating that the Courts are closed or the Magistrate Court Act or Rules are not amended to that effect, ensure that you comply with the National Credit Act’s time limits.

Vanessa Johst


A distinction needs to be drawn between two Credit Provider terminations allowed by the National Credit Act, the first one is the Section 86(10) termination and the second one is the Section 88(3) termination.

Firstly, in terms of the National Credit Act, it allows a Debt Counsellor to fulfill his or her duties in accordance with Section 86 of the National Credit Act within 60 business days.

This means near the end of the 60 business days a Debt Counsellor is required to lodge a Magistrate Court Debt Review Application.

This Court Application can be unopposed, if all Credit Providers consented to the debt re-arrangement proposal. Or an opposed application if the debt-rearrangement proposal has not been accepted by all the Credit Providers.

However, the court application should be lodged within 60 business days after the Consumer Application.

If the Court Application is NOT lodged within the 60 business days and the Consumer is in default of the Credit Agreement, then the Consumer’s protection falls away and the Credit Provider in terms of Section 86(10) of the NCA has the right to terminate the credit agreement from debt review.

However, the Task Team urges Credit Providers not to terminate if the Consumer still adheres to the debt-rearrangement proposal, if the 60 days has passed.

It should be noted that in terms of Section 86(10) and Section 130 (1)(a) of the NCA a Written Notice must be given to the Consumer, the Debt Counsellor and the NCR.

The manner of delivery is an important aspect in the process.

As the NCA in Section 86(10), Section 129 and Section 130 fails to address how the Notice should be delivered, we have to look at Section 168 of the NCA, which states that if the Act requires a Notice to be delivered, but fails to address how that Notice should be delivered, the Notice should be delivered either to that person or by registered mail to the person’s last known address.

However, In the case of the Notice to a Debt Counsellor and the NCR, both would have had an agreement in place with the Credit Provider to accept all Notices via electronic mail. Which will be a sufficient method of delivery.

Then In terms of Section 130(1)(a) 10 Business days should lapse after the Notices were delivered and then only can a Credit Provider approach the Court to enforce the terms of the Credit Agreement.

However, section 86(11) in return then gives the Court the discretion to make an order to resume the debt review on any conditions the court considers just in the circumstances, so the practical interpretation is that a Consumer should defend the Court action and put forth a case to the Court.

A defense can include that the Credit Provider incorrectly terminated the credit agreement from Debt Review, by either not participating in good faith in the review and in any negotiations designed to result in responsible debt-rearrangement as per Section 86(5)(b) which was also confirmed in Nedbank v Moloi.

Another legitimate defense is that the Credit Provider failed to comply with the requirements of sending the Section 86(10) Notice, meaning not all parties have been notified.

To summarize Section 86(10) termination is a remedy for Credit Providers if the Court Application has not been filed within the 60 business days. This point of view can be supported by Section 129(2) which states that a Notice in terms of Section 129(1)(a) and a Notice ito Section 86(10) can only be sent if the credit agreement is NOT subject to a debt restructuring order OR proceedings in a Court that could result in such an order – meaning the debt review Court Application has been filed in Court and you are awaiting the Court Order.

And that is why the second form of termination comes into play – which is Section 88(3) of the NCA, now this provision in the NCA does not mention that a Notice of termination needs to be sent. As confirmed in ABSA vs de Kock the Credit Provider will use this method of termination if there is already an existing debt restructuring Court Order and the Consumer defaults in its repayments.

And this is why it is of absolute importance to inform your Clients that they should not default. All the Consumers protection will fall away and there is no obligation on the Credit Provider to re-instate the credit agreement under debt review.

The Credit Provider can purely proceed to enforce the credit agreement without sending out any notice to either the Consumer, Debt Counsellor or the NCR. The onus will be on the Credit Provider to proof that the Consumer failed to adhere to the debt restructuring order. A Consumer can defend the action and set forth a case in response that he/she did adhere to the debt -restructuring order.

Vanessa Johst


It has been noticed that in practice many are under the impression that once a section 129 notice has been received Consumers only have 10 days to apply for debt review or cure the default or enter into any negotiations with the Credit Provider.

The reason being is that many interpret Section 130(a) which refers to a 10-day period. That a Consumer only has that 10 days to apply for debt review.

This incorrect view was also supported by A Magistrate Court case - Nedbank v de Beer, which confirmed that legal proceedings starts when a section 129 notice has been delivered.

However, in May 2018, a High Court in De Beer v Nedbank Limited (A431/2017) [2018] ZAGPPHC 367 (16 May 2018) overturned the view of the Magistrate Court. The High Court stated that the Magistrate Court may have erred as it applied the old wording of Section 86(2).

Prior to 13 March 2015 Section 86(2) of the NCA stated that a debt review application cannot be made if all the steps in Section 129 has been taken by the Credit Provider to enforce the agreement.

However, after the 13th of March 2015 the Legislators deleted the “Section 129” wording from Section 86(2) and replaced it with Section 130.

Now to clarify Section 129 of the NCA deals with the Notice itself and Section 130 of the NCA deals with the procedure in Court after the Section 129 Notice has been dispatched. Section 130 of the NCA states that a Credit Provider can only approach a court after the 10 days has lapsed after the Section 129 notice. Or as previously mentioned the Consumer failed to respond to the notice or the Consumer did respond by trying to negotiate with the Credit Provider, but the Credit provider rejected the proposal.

Thus, the important question arises from the de Beer v Nedbank supra case and that is whether a Consumer can apply for debt review after the section 129 notice and after summons has been ISSUED.

Now to clarify, “issued” means when a summons has been taken to Court to obtain a case number and date, but it has not yet been served on a Consumer.

The Court then had to look at what the meaning “commence any legal proceedings to enforce the agreement means”.

The Judge, after careful consideration of the NATIONAL CREDIT ACT and other case law, stated that it does not mean the “issuing” of summons, but it means the date on which the summons has been brought to the attention of the Consumer, which will be the date of “SERVICE”.

Subsequently this means a Consumer is entitled to apply for Debt Review at any time before the summons has been served on him/her and not just within the 10 day period as previously believed.

Vanessa Johst

13DCASA Annual Conference 17 August 2022

Looking for something else? Feel free to contact us if you have any questions or enquiries.