By SIPHOKAZI MLINDAZWE, candidate attorney, Rhodes University Law Clinic
Where the National Credit Act (NCA) has been contravened, one has the option of either (a) lodging a complaint with the National Credit Regulator (NCR) or (b) utilising one of the alternative dispute resolution mechanisms made available by the NCA.
Lodging a complaint with the NCR
The sections regulating this process are sections 136-141 of the NCA. Any complaint regarding an alleged contravention of the NCA must be lodged by submitting the complaint to the NCR in the prescribed manner and form (Form 29 of the Regulations).
The NCR may resolve complaints lodged with it, and any resolution reached between the relevant parties may be made a consent order by a Court or the National Consumer Tribunal. Alternatively, the NCR may also refer the dispute directly to a debt counsellor, an ombud having jurisdiction or a consumer court. Lastly, after investigating the matter, the NCR may choose to refer the matter to a provincial consumer court or the Tribunal if it feels that an order by one of those judicial bodies is necessary.
Examples of NCA contraventions
- A credit provider is in contravention of section 81(2)(a)(iii) read with Regulation 23A when the credit provider fails to assess the consumer’s existing financial means, prospects, and obligations. According to the above section, the credit provider must show that it took reasonable steps to assess the consumer’s debt-repayment history, financial means, prospects, and obligations. The failure to conduct affordability assessments of this kind often results in the credit provider entering into reckless credit agreements with consumers, thereby contravening section 81(3) read with section 80(1)(a) of the NCA.
Alternative dispute resolution methods (regulated by sections 133 and 134)
In terms of section 134, as an alternative to filing a complaint with the NCR, one may refer a dispute that could be the subject of such a complaint for dispute resolution as follows:
If the relevant ombud, consumer court or alternative dispute resolution agent assists the parties in resolving a dispute, the resolution of the dispute may be recorded in the form of a written order. If the parties to the dispute are in agreement, it may then be submitted to a court or the Tribunal to be made a consent order.
