Law Clinix

Knowledge is power and your peace of mind

DEBT COUNSELLING 


Debt Counselling and/or Debt Review


The Debt review procedure is incorporated by the National Credit Act Section 86 of Act 34 of 2005 which came in force on 1 st of June 2007.

An application is lodged in the Magistrates Court.

Debt counselling is a type of mediator for over-indebted consumers. A consumer can seek the assistance of debt counselling, or the consumer might be referred by the court to a debt counsellor. 

The main purpose of debt counselling is

-  To assess a debtor's state of indebtedness and to facilitate a monthly debt repayment plan with the credit providers,

- To make recommendations to credit providers and/or Magistrates' Courts on behalf of over-indebted consumers for a consent order if they have reached an agreement how the debt must be paid back and the term.

The debt counsellor assesses a debtor's state of indebtedness, then declares that the individual is over-indebted or not.

If the debt counsellor finds that the borrower is not over-indebted, a letter of rejection will be given to the debtor, and credit providers will be allowed to continue with the legal proceedings.

 

What are the advantages and disadvantages of Debt Counselling?

Advantages:

Once a consumer has made an application for Debt Review, credit providers cannot attach any assets or take any further legal action against the consumer pending a determination by a Debt Counsellor as to whether the consumer is actually over-indebted or not. Only if the Debt Review pre-dates legal action.

Repayment of a consumer's debt obligations is done through a payment distribution agency or alternatively as arranged by the Debt Counsellor.

The Debt Counsellor will set aside a certain amount of income for the consumer's necessities (for example food, school fees, transport costs etc.) and the remainder of the money is left to pay the consumer's debts.

A registered Debt Counsellor is likely to get a positive response from the consumer's creditors when it comes to negotiating repayments as opposed to a consumer approaching his creditors.

A consumer may make one monthly payment to a payment distribution agency that will pay all his creditors whilst under Debt Review. This one easy payment will make a consumer's finances much easier to manage and reduce his banking fees.

A registered Debt Counsellor will be able to advise a consumer on ways to manage living expenses.


Disadvantages:

A consumer may no longer get access to credit whilst under Debt Review.

This includes new financing for new mortgage bonds and vehicles. While this may seem to be a negative thing, it is actually built into the process to protect consumers from becoming further indebted and to protect credit providers from being accused of "reckless lending.”

The Supreme Court of Appeal Judge Collett states that if a consumer skips a payment with regards to his revised debt proposal that the Creditors may terminate the Debt Review process, this also applies if an application is not issued at court within 60 days of applying for Debt Review.

Termination can in some instances be reinstated with a section 86(11) application, this can only happen if the consumer has a very good reason for defaulting.

The relevant sections of the act hereto included, see , Application for Debt review in terms of Section 86 of the Act.

Magistrate’s Court may re-arrange consumer’s obligations in terms of Section 87 of the Act.

Effect of debt review or re-arrangement order or agreement in terms of Section 88 of the Act.





The Credit Act
NATIONAL_CREDIT_ACT.pdf (1.37MB)
The Credit Act
NATIONAL_CREDIT_ACT.pdf (1.37MB)


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