scholarly journals Alternatives to Bankruptcy in South Africa that Provides for a Discharge of Debts: Lessons from Kenya

2019 ◽  
Vol 22 ◽  
pp. 1-34
Author(s):  
Zingaphi Mabe
Keyword(s):  
South Africa ◽  
South African ◽  
The South ◽  
Insolvency Law ◽  
Debt Restructuring ◽  
Wide Range ◽  
Insolvency Proceedings ◽  
National Credit Act

The problems faced by debtors in South Africa is not that there are no alternatives to insolvency proceedings, but that the available alternatives do not provide for a discharge of debt as with a sequestration order, which is ultimately what the debtor seeks to achieve. Debtors in South Africa can make use of debt review in terms of the National Credit Act 34 of 2005 or administration orders in terms of the Magistrates' Court Act 32 of 1944 to circumvent the sequestration process. However, both debt review and administration orders do not provide for a discharge of debt and provide for debt-restructuring only, in order to eventually satisfy the creditor's claims. Attention is given to the sequestration process and the alternatives to sequestration as they relate specifically to the discharge or lack of a discharge of a debtor's debts. The South African law is compared to Kenyan Law. This article seeks to analyse the alternatives to the bankruptcy provisions of the newly enacted Kenyan Insolvency Act 18 of 2015 in order to influence the possible reform of insolvency law in South Africa. Like the South African Insolvency Act, the old Kenyan Bankruptcy Act (Cap 53 of the Laws of Kenya) also did not have alternatives to bankruptcy. The old Kenyan Bankruptcy Act, however, contained a provision on schemes of arrangement and compositions. The Kenyan Insolvency Act now caters for alternatives to bankruptcy and provides a wide range of alternatives to bankruptcy, some of which allow debtors in different financial positions to obtain a discharge.    

scholarly journals The impact of the credit legislation on consumers

2016 ◽  
Vol 6 (4) ◽  
pp. 503-509 ◽  
Author(s):  
Hlako Choma ◽  
Thifulufhelwi Cedric Tshidada ◽  
Tshegofatso Kgarabjang
Keyword(s):  
South Africa ◽  
South African ◽  
Consumer Protection ◽  
The Other ◽  
The South ◽  
Other Hand ◽  
Credit Agreement ◽  
Financial Obligation ◽  
The Impact ◽  
National Credit Act

The purpose of this paper is to examine two South Africa legislations dealing with over indebtedness of a consumer. It is clear that in terms of the South African law, section 129 (1) and 130 (3) of the National Credit Act provide that a creditor provider who wishes to enforce a debt under a credit agreement must first issue a section 129 (1) (a) notice to the consumer (the purpose of the notice is to notify the consumer of his/her arrears). On the other hand, the South African National Credit Act encourages the consumers to fulfil the financial obligations for which they are responsible. The second legislation to be examined which serve or appear to serve same purpose as the National Credit Act is the Insolvency Act. It therefore, postulated that the compulsory sequestration of a consumer in terms of the Insolvency Act would stand as an alternative remedy for a credit provider before she/he can have recourse mechanisms, such as debt review that are focused on satisfaction of the consumer’s financial obligation , in terms of the provisions of the National Credit Act. The paper determines to what extend these measures comply with the constitutional consumer protection demands. The legislature had been pertinently cognizant of the Insolvency Act when it lately enacted the National Credit Act. This is much apparent from the express amendment of section 84 of the Insolvency Act to the extent set out in schedule 2 of the National Credit Act

scholarly journals DO SEQUESTRATION PROCEEDINGS FALL WITHIN THE OVERALL AMBIT OF “ANY PROCEEDINGS” AS STIPULATED IN SECTION 130(3) OF THE NATIONAL CREDIT ACT 34 OF 2005?* Naidoo v Absa Bank Limited [2010] 4 All SA 496 (SCA)

Obiter ◽  
2021 ◽  
Vol 33 (2) ◽  
Author(s):  
Sasha-Lee Afrika
Keyword(s):  
South Africa ◽  
Insolvency Law ◽  
Debt Restructuring ◽  
Civil Remedies ◽  
Credit Agreement ◽  
National Credit Act

Naidoo v Absa Bank Limited is one of the few cases by a court in which the interface between the insolvency law and the National Credit Act 34 of 2005 arose since the commencement of the latter in 2006. Other cases highlighting this interface include Investec Bank Ltd v Mutemeri (2010 (1) SA 265 (GSJ)) and Ex Parte Ford (2009 (3) SA 376 (WCC). The enactment of the National Credit Act has had significantconsequences for the scope of remedies available to both debtors and creditors in terms of the insolvency law. The National Credit Act did not change the Insolvency Act 24 of 1936 dramatically. Section 84 of the Insolvency Act, which deals with goods delivered in terms of an instalment agreement to a debtor whose estate became subsequently sequestrated, was one section which was changed by the National Credit Act. However, the National Credit Act is now dealing exclusively with certain debts and the enforcement of those debts. These are debts arising out of credit agreements and therefore excluding the application of insolvency law when dealing with such debts. Section 4 of the National Credit Act determines when the Act is applicable. The National Credit Act provides sophisticated measures during a situation when consumers who are parties to credit agreements, which are not exempted from the application of the National Credit Act, are unable to pay their debts. These measures include debt reviewing, the declaration of a credit agreement as reckless credit and debt restructuring (see s 86(7) of the National Credit Act for the recommendations which a debt counsellor maymake after reviewing a consumer’s debts). In all other instances, normal civil remedies such as a garnishee order, sale in execution, an order for payment in instalments and the measures of the insolvency law are still means of redress available to a creditor. It issubmitted that this will not be the only time in South Africa where a possible overlap of remedies available under both insolvency law and under the National Credit Act will be adjudicated. Future motions will either try to enforce the application of the insolvency law or question its application, arguing for the application of the more specialized National Credit Act as seen in Naidoo v Absa Bank Limited.

scholarly journals SOME NOTABLE DIVERGENCES IN THE DEVELOPMENT OF SOUTH AFRICAN AND NAMIBIAN INSOLVENCY LAW

Obiter ◽  
2021 ◽  
Vol 31 (2) ◽  
Author(s):  
André Boraine
Keyword(s):  
South Africa ◽  
South African ◽  
Legal Systems ◽  
The South ◽  
Insolvency Law ◽  
High Courts ◽  
South West Africa ◽  
The Republic ◽  
To Come ◽  
South African Constitution

It is a well-known fact that the legal systems of South Africa and Namibia, or rather the former South West Africa, were rather identical until the advent of independence of the latter on 21 March 1990. This note thus deals with aspects of the development of insolvency law in South Africa and Namibia since Namibia became independent. What is also important is the fact that both Namibia and South Africa adopted a constitution that is based on a Bill of Rights (see the Constitution of the Republic of Namibia of 1990 and the South African Constitution of 1996). Some developments in insolvency law based on these features are therefore also considered in this note. As indicated, upon independence Namibia retained significant portions of South African law including its legislation. Owing to the shared background of Roman-Dutch-law and English-law influences, both Namibia and South Africa can still be classified as having mixed legal systems. Like South Africa, Namibian insolvency law is not contained in one single statute although it is still largely regulated by the South African inherited Insolvency Act 24 of 1936 (hereinafter “the Insolvency Act”), which deals first and foremost with the sequestration of individuals and related matters. Namibia also inherited the South African Companies Act 61 of 1973 but the South African Close Corporations Act 69 of 1984 was largely adopted as the Close Corporation Act 26 of 1988 that came into operation on 25 July 1994. These pieces of legislation, amongst others, deal with the liquidation or winding-up of companies and close corporations respectively. Apart from these statutory enactments, precedents and common-law principles also apply in the absence of specific statutory provisions. The Insolvency Act of 1936, however, remains the principal source of both South African and Namibian insolvency law and the other enactments render certain provisions of the Insolvency Act applicable. At present and as far as the principles are still comparable, precedents set by South African and Namibian courts remain relevant in both jurisdictions. In order to align some of the terminology with structures and developments in Namibia, the 1936 Insolvency Act was amended in a number of respects by the Namibian Insolvency Amendment Act 12 of 2005. The wording of the Insolvency Act was also thereby amended to make it gender-friendly. However, when dealing with either system it is important to ascertain to what extent statutes that applied in both jurisdictions have been adopted, subsequently amended and/or replaced. The Namibian government has for instance introduced a new Companies Act 28 of 2004 that is bound to replace the South African-based Companies Act of 1973. Although a new insolvency statute is not in the pipeline in Namibia, an amendment act to the 1936 Insolvency Act has been published during 2005 (the 2004 Companies Act was assented to on 19 December 2004 but it will only come into operation once so proclaimed). In South Africa a new Companies Act 71 of 2008 has been introduced but it is also still due to come into operation. New insolvency legislation that will unify the insolvency of individuals and companies is on the table in South Africa but it is not clear when this process will come to fruition. Another general feature is that judgments of the South African and Namibian high courts are clearly still influential in both jurisdictions but as amendments and separate legal developments will deviate from the former common norm, judgments will clearly have to be treated with circumspect in future. In the absence of a comprehensive textbook dealing with the Namibian version of insolvency law, South African textbooks will remain of some use to that jurisdictions but also subject to the same qualifications expressed above.

scholarly journals Implementation of South African national credit act and its impact on home loans market: The case of First National Bank

2013 ◽  
Vol 3 (2) ◽  
pp. 18-29
Author(s):  
Bathmanathan Vasie Naicker ◽  
Md. Humayun Kabir
Keyword(s):  
South Africa ◽  
South African ◽  
Value Chain ◽  
Credit Market ◽  
The South ◽  
Current State ◽  
Retail Credit ◽  
National Bank ◽  
National Credit Act ◽  
Credit Granting

Since it has been observed that credit granting is a serious problem across the entire credit market, South Africa introduced National Credit Act 34 of 2005 in order to regulate the credit industry and protect credit consumers from becoming over-indebted. The study highlights and examines the implementation of the Act in relation to the South African home loans market, focussing on First National Bank home loans portfolio. The study documents that the current state of consumer indebtedness shows that both credit institutions and consumers were responsible for over extending retail credit. The study noticed that credit industry has significantly managed to regulate the retail credit through the implementation of the Act. Furthermore, the study finds that a new stakeholder such as a debt counsellor has been introduced into the retail credit value chain for debt counselling for over-indebted clients. However, the study recommends that internal forums within banks as well as industry-wide forums should be used in order to ensure that the implementation of a regulation that impacts the entire credit industry is implemented with all stakeholders to limit any possible misinterpretation of key sections of a new regulation.

scholarly journals The Impact of the National Credit Act 34 of 2005 on the Enforcement of a Mortgage Bond: Sebola v Standard Bank of South Africa Ltd 2012 5 SA 142 (CC)

2017 ◽  
Vol 16 (3) ◽  
pp. 376 ◽  
Author(s):  
Michelle MM Fuchs
Keyword(s):  
South Africa ◽  
South African ◽  
Constitutional Court ◽  
Post Office ◽  
The South ◽  
Reasonable Approach ◽  
Credit Agreement ◽  
The Impact ◽  
National Credit Act

                        When a mortgagor is in default and the mortgagee wants to enforce the debt the National Credit Act (hereafter the NCA) may apply. A credit agreement may be enforced in court by a credit provider against a defaulting debtor only once the requirements of sections 129 and 130 of the NCA have been adhered to. If a mortgagor (who is a protected consumer in terms of the NCA) is in default, the mortgagee must deliver a section 129(1) notice to the consumer, thereby drawing the default to the attention of the consumer. For a number of years there has been uncertainty about the interpretation of section 129(1) and how it affects the execution procedure in the case of a mortgage bond over immovable property. The recent Constitutional Court judgment of Sebola v Standard Bank 2012 5 SA 142 (CC) overturns, to my mind, the more reasonable approach to such notices in Rossouw v Firstrand Bank Ltd (2010 6 SA 439 (SCA)). It was held in Sebola that before instituting action against a defaulting consumer, a credit provider must provide proof to the court that a section 129(1) notice of default (i) has been despatched to the consumer's chosen address and (ii) that the notice reached the appropriate post office for delivery to the consumer, thereby coming to the attention of the consumer.  In practical terms the credit provider must obtain a post-dispatch "track and trace" print-out from the website of the South African Post Office. There is now a much heavier burden on a bank to ensure that proper proof is provided that the notice was sent and delivered to the correct address. Consequently it places another hurdle in the path of a mortgagee who wishes to foreclose.

scholarly journals South Africa's Initiative Towards an Integrated Biodiversity Data Portal

2021 ◽  
Vol 5 ◽  
Author(s):  
Kiara Ricketts ◽  
Brenda Daly ◽  
Fhatani Ranwashe ◽  
Carol Lefakane
Keyword(s):  
South Africa ◽  
South African ◽  
Southern Africa ◽  
Integrated System ◽  
Research Assessment ◽  
Distribution Data ◽  
Free Access ◽  
The South ◽  
Biodiversity Data ◽  
Wide Range

Biodiversity Advisor, developed by the South African National Biodiversity Institute (SANBI), is a system that will provide integrated biodiversity information to a wide range of users who will have access to geospatial data, plant and animal species distribution data, ecosystem-level data, literature, images and metadata. It aims to deliver a centralized location with open access to information to enable research, assessment and monitoring; to support policy development; to foster collaboration and advance governance. Data are aggregated from multiple, diverse data partners across South Africa including, CapeNature, the FitzPatrick Institute of African Ornithology, Iziko South African museum, the National Herbarium of South Africa and the South African Institute for Aquatic Biodiversity. This newly developed and integrated system promotes a shift from tactically-based information systems, aimed at delivering products for individual project initiatives to a strategic system that promotes the building of capacity within organisations and networks. It has been developed by integrating SANBI’s existing authoring layers through a service-orientated architecture approach, which enables seamless cross-platform integration. Some of the key authoring layers that will be integrated are, the Botanical Database of Southern Africa (BODATSA), the Zoological Database of Southern Africa (ZODATSA), the Biodiversity Geographic Information System (BGIS) and SANBI's institutional repository (Opus). Biodiversity Advisor will provide users, policy and decision makers, environmental impact practitioners and associated organizations with free access to view, query and download any of South Africa's biodiversity data available on the system, providing them with everything needed to make decisions around conservation and biodiversity planning in South Africa. All sensitive species data, which are those that are vulnerable to collecting, over-exploitation, commercial and/or medicinal use, will be redacted and only granted access upon application. Biodiversity Advisor will encourage more effective management of data within SANBI, but also encourage the sharing of data by the biodiversity community to provide integrated products and services, which are needed to address complex environmental issues.

scholarly journals An inventory of the South african fitness industry

2006 ◽  
Vol 18 (3) ◽  
pp. 93
Author(s):  
CE Draper ◽  
L Grobler ◽  
GA Kilian ◽  
LK Micklesfield ◽  
EV Lambert ◽  
...  
Keyword(s):  
South Africa ◽  
South African ◽  
Urban Areas ◽  
Education And Training ◽  
The South ◽  
Science Institute ◽  
Sports Science ◽  
Wide Range ◽  
Fitness Industry ◽  
And Training

Objective. The aim of this study was to create an inventory of fitness facilities in South Africa, their location, equipment and services offered, and the demographics, education and training of the staff working in these facilities. Design. A total of 750 facilities were identified, and descriptive data were gathered from 442 facilities (59%) with the use of a questionnaire administered telephonically and via the website of the Sports Science Institute of South Africa. Setting. The study was initiated by the Sports Science Institute, and the results were presented at the 4th Annual Discovery Vitality Fitness Convention on 4 May 2006. Results. Results show that the industry comprises mainly independent facilities (68%). All types of facilities were found to be located mostly within urban areas, and reported providing services to just less than 2% of the South African population. Facilities offer a wide range of equipment and services to their members. Of the fitness-related staff at facilities, the majority were reported to be young (18 - 25 years, 55% of male, and 49% of female staff), and in terms of racial proportions most staff were white (males 40% of total staff and females 33% of total staff).Less than a quarter of fitness-related staff hold university qualifications, and just over 80% of instructors hold qualifications aligned with the National Qualifications Framework. The importance of education and training of staff was emphasised by respondents. Conclusions. This report highlights the widespread value of assessing the fitness industry, particularly within the context of the rise of chronic diseases in South Africa and government initiatives to promote healthy lifestyles. South African Journal of Sports Medicine Vol. 18 (3) 2006: pp. 93-104

scholarly journals Perceptions of the National Credit Regulator on the usefulness of the debt counselling process in South Africa

2018 ◽  
Vol 9 (6) ◽  
pp. 208
Author(s):  
K. H. Masilo
Keyword(s):  
South Africa ◽  
South African ◽  
Business Management ◽  
Qualitative Approach ◽  
Training Curriculum ◽  
Counselling Service ◽  
The South ◽  
Counselling Process ◽  
National Credit Act ◽  
And Training

The South African National Credit Regulator is responsible for the regulation of credit industry, registration and training of debt counsellors, enforcement and monitoring compliance of the provisions of the National Credit Act. The aim of this paper is therefore to analyse the perceptions of the National Credit Regulator on the usefulness of debt counselling process in South Africa. A qualitative approach, which was exploratory in nature, was adopted for this study. Ten employees from the National Credit Regulator’s office were interviewed. There was no evidence that debt counsellors were managing the debt counselling service effectively. It was also observed that the debt counsellors received insufficient support from the National Credit Regulator.  The paper recommends that the National Credit Regulator should adequately support the debt counsellors so that they can effectively manage debt counselling service and ultimately assist the overindebted consumers. Debt counsellors training curriculum should also be outcomes- based approach with exposure to business management. 

scholarly journals Perceptions of the National Credit Regulator on the usefulness of the debt counselling process in South Africa

2018 ◽  
Vol 9 (6(J)) ◽  
pp. 208-214
Author(s):  
K. H. Masilo
Keyword(s):  
South Africa ◽  
South African ◽  
Business Management ◽  
Qualitative Approach ◽  
Training Curriculum ◽  
Counselling Service ◽  
The South ◽  
Counselling Process ◽  
National Credit Act ◽  
And Training

The South African National Credit Regulator is responsible for the regulation of credit industry, registration and training of debt counsellors, enforcement and monitoring compliance of the provisions of the National Credit Act. The aim of this paper is therefore to analyse the perceptions of the National Credit Regulator on the usefulness of debt counselling process in South Africa. A qualitative approach, which was exploratory in nature, was adopted for this study. Ten employees from the National Credit Regulator’s office were interviewed. There was no evidence that debt counsellors were managing the debt counselling service effectively. It was also observed that the debt counsellors received insufficient support from the National Credit Regulator.  The paper recommends that the National Credit Regulator should adequately support the debt counsellors so that they can effectively manage debt counselling service and ultimately assist the overindebted consumers. Debt counsellors training curriculum should also be outcomes- based approach with exposure to business management. 

Foreigners' Rights to Work and Fair Labour Practices in South Africa: A Review of the South African Labour Legislation and Jurisprudence

2020 ◽  
Vol 35 (1) ◽  
Author(s):  
Andre Mangu
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Bill Of Rights ◽  
The South ◽  
Legislation And Jurisprudence ◽  
Foreign Nationals ◽  
Lay Persons ◽  
Democratic State ◽  
Labour Legislation

After several decades of apartheid rule, which denied human rights to the majority of the population on the ground of race and came to be regarded as a crime against humanity, South Africa adopted its first democratic Constitution in the early 1990s. The 1996 Constitution, which succeeded the 1993 interim Constitution, is considered one of the most progressive in the world. In its founding provisions, it states that South Africa is a democratic state founded on human dignity, the achievement of equality, the advancement of human rights and freedoms. The Constitution enshrines fundamental human rights in a justiciable Bill of Rights as a cornerstone of democracy. Unfortunately, in the eyes of a number of politicians, officials and lay-persons, the rights in the Bill of Rights accrue to South African citizens only. Xenophobia, which has been rampant since the end of apartheid, seems to support the idea that foreigners should not enjoy these rights. Foreign nationals have often been accused of posing a threat to South African citizens with regard to employment opportunities. In light of the South African legislation and jurisprudence, this article affirms the position of the South African labour law that foreign nationals are indeed protected by the Constitution and entitled to rights in the Bill of Rights, including the rights to work and fair labour practices.

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