‘Debt Intervention’ National Credit Amendment Bill: finalisation of outstanding decisions

Meeting report

The Chairperson welcomed everyone and, especially, welcomed Mr Williams who was back from China. The Committee needed to focus on the National Credit Bill so there was no need to add anything to the agenda. The agenda was approved with an amended timeframe.

The Chairperson noted the presence of Dr Evelyn Masotja, DDG of Consumer and Corporate Regulation at the Department of Trade and Industry, DTI Director for Credit Law and Policy, Mr Siphamandla Kumkani, National Credit Regulator CEO, Ms Nomsa Mothegare, National Consumer Tribunal Deputy Registrar, Mr Prenesen Moodley, and Chief Information Officer, Mr Bax Nomvete.

Five flagged items in ‘Debt Intervention’ National Credit Amendment Draft Bill
The Senior Parliamentary Legal Advisor, Adv Charmaine van der Merwe, listed the five items that had been flagged the previous week:
1. The question was if the amount of R7 500 for the maximum gross income and the amount of R 50 000 for the maximum credit, as included in the Bill, would be valid amounts in ten years’ time? The consensus was that it would not, but the question was how to address that concern. The Committee had been close to an agreement. The proposal was that the Minister could adjust it but that in the Regulations it stipulated that this had to be approved by the National Assembly.
2. Was it a criminal offence when a credit provider did not supply information requested by a debt counsellor to determine whether a debt was reckless or not? Should it be an offence, or should the Amendment Bill make it prohibited conduct with an administrative fine. If that became problematic, it could be made an offence at a later stage.
3. There had been concern about what information could be required from a credit provider. A list of documents that credit providers had to keep was in the regulations. Administrative fines had not curbed the problem.
4. After a debt had been extinguished, what should the time period be during which a consumer’s right to apply for credit was limited. A diagram mapping timelines for debt intervention had been given to Members.
5. Should there be a prescribed format for future debt intervention by a Minister or should it only be via once-off legislation. The Committee had received legal opinions from National Treasury and senior counsel that the powers of the Minister were too wide. Parliament Legal Services believed that the powers given to the Minister would pass constitutional muster and if not permitted, the processes to be engaged if there was a national disaster or exogenous shock were so extensive that it nullified urgent action.

The Chairperson said the Committee would go through the Bill, clause by clause. The Committee was not yet at the voting stage, but the intention was to finalise the Bill that could be presented for voting.

‘Debt Intervention’ National Credit Amendment Draft Bill: consideration
Adv van der Merwe indicated that she would not address the Long Title.

Preamble
The Preamble of the Bill had been changed to make it clear that the Bill not only affected constitutional rights to property, but it also corrected a constitutional gap in practice where certain consumers were unfairly discriminated against because they did not have money or assets. That had been included in the third paragraph of the Preamble.

Clause 1
Members of the public had indicated that they wanted some definitions. When a separate part had been created in the Bill to deal with the specific issues of debt relief, the applicable definitions had been included at the beginning of the part where those definitions were applicable. There had been criticism of Version 5 of the Draft Bill and what Legal Services had done was to slot each of the steps directly into the Act to create logical flow to show where the existing measures had been tweaked to provide relief for the consumer.

‘Debt intervention’ had been defined. The definition was not being used for the prescribed measure because that would have its own definition. The ‘debt intervention’ definition was only applicable to measures in the Bill. The income measure was indicated as R7 500 or those who had been retrenched, but that would be subject to adjustment in the regulations. That adjustment would be prescribed. The Bill was quite clear that it was about over-indebtedness. Although it was not common practice to use examples in a Bill, the Committee had suggested that it would be helpful to do so and to ensure clarity of what it means. The definition made it clear that sequestrated or underwritten persons were excluded.

There had been some concerns about the term ‘extinguish’. Credit providers might find loopholes such as through an enrichment action, which could be brought against a consumer when a contract could not be enforced, as had been done in the past. Where a debt was extinguished, that had to be the end. There could be no further claims against that consumer. It was made clear that there had to be an end to all rights and obligations that could arise in law, common law and even in indigenous law. Extinguishing of debt would only come into play after two years of suspension after looking at all the implications of extinguishing the debt.

The Chairperson added that although the debt stopped at the date of cessation, the Bill looked at what had happened before that date, so that all debt relating to that specific debt was extinguished.

‘Financial capability’ and financial literacy’ definitions referred to the training consumers had to receive. National Treasury had provided these definitions.

‘Knowing’ or ‘knowingly’ definition related to an offence by non-natural people such as a firm or a company. One could not hide behind a company because it was also an offence for the company. The same definition used in the Companies Act had been incorporated in the Bill. It was a tried and tested definition.

‘National Assembly’ was defined as it was used frequently in the Bill. It was defined so there was no need to refer to ‘Section 42(1)(a) of the Constitution’ each time the term was used.

‘Total unsecured debt’ definition dealt with the qualifying debt of R50 000 as the principal debt but the debt that would be extinguished included interest and all other charges.

Clause 2
The clause amended the purpose of the Act in section 3 of the Act. That was necessary as the original purpose of the Act had not included the provision of debt intervention. The purpose was amended to include the provision of appropriate debt intervention for qualifying consumers.

 A number of clauses had been deleted because debt intervention was not being written in as a separate “part” of the Act.

Clause 3
This inserted a new section into the Act. The section would be inserted after section 15 of the principal Act and would relate to other functions of the National Credit Regulator. The National Credit Regulator (NCR) had to assist a debt intervention applicant with the process of being declared over-indebted and all related processes. It also capacitated the National Credit Regulator to assist a debt intervention applicant by allowing the appointment of any suitable employee of the National Credit Regulator, or any other suitable person employed by the State, as a debt intervention counsellor.

Mr A Williams (ANC) asked if clause 3(2) capacitated the Regulator sufficiently to do the job.

Adv van der Merwe replied that the NCR could appoint any suitable NCR employee or anyone in the state. It would be an operational process. Employees would be recruited, appointed and trained as debt intervention counsellors.

Mr Williams asked if the Committee knew how much work they were giving via this Bill? The NCR might need to employ say 20 000 people? Could they do it?

The Chairperson said the point had been raised the previous week and asked the NCR CEO to comment.

Ms Nomsa Mothegare, NCR CEO, reminded the Committee that when it had presented its implementation plan, NCR believed that it would initially need 70 debt intervention counsellors. The presentation had indicated that the NCR would require officials from other departments to assist with the programme.

The Chairperson accepted the explanation.

Mr D Mahlobo (ANC) commented that the explanation was good but, from a practical point, the NCR must not put itself into difficulties. The NCR should not make the requirements too detailed and too definitive in the Act. The Regulator needed to build capacity over time. When one considered the kind of skill set required, including the ability to use technology, in short term, the Regulator might not be able to appoint sufficient people as those skills might not reside in the state. The NCR might need to appoint individuals or an entity to do the job. He was looking at the current fiscal constraints and did not believe that she would be able to do it.

The Chairperson noted that in the past, certain pieces of legislation could not be implemented because legislators had been too rigid in drafting the legislation. There should be no reckless assumptions. She was wondering if everyone understood that there was a very limited fiscus. She hoped other departments would assist but NCR had to take into account that other departments had their own priorities. The DTI should also be mindful of the situation.

Adv van der Merwe reminded the Committee that it had been clear that it did not want outsourcing of the debt intervention function. That was why the Act said that a debt assessor had to be an employee of the NCR. Data capture and other functions could be outsourced. The actual financial assessment had to be done by an employee because there were responsibilities attached to the function.

Mr Mahlobo explained that he was not speaking because he had misunderstood. He had other experiences that he brought to the table. One could not do anything other than what was written into law. He suggested that the NCR look at his input as advice. Mechanics were not normally put into law. The mechanics could be internally arranged. For example, government made provision for an intern to provide capacity, but an intern was not an employee. An employee had a special meaning and, therefore, it was a risk to specify employees. Was the clause implementable? If not, it could end up frustrating the process.

The Chairperson noted that they were talking about clause 3(2)(a) where the NCR might appoint a suitable person from NCR or any other organ of state. So, it might be too restrictive for employing suitable people at a particular time. Those people would not be needed for years and years, so the NCR might need contractors.

Ms P Mantashe (ANC) heard was Mr Mahlobo was saying. She asked for the current magnitude of NCR employees. What would the human resources position be like in six months’ time? Ms Mantashe found comfort in that other departmental employees could be utilised.

Mr B Radebe (ANC) stated that he liked the use of the word ‘may’ because that meant flexibility was possible. What was still outstanding was the costing of the Bill. The State had to cost it before it could be passed. He agreed that the NCR could not build capacity overnight and so the NCR should look at a cost per annum. The Committee and the Regulator could not go on without knowing the costs involved.

Mr Williams agreed that the use of the word ‘may’ opened up possibilities but he still did not believe that they should use external service providers. Debt counsellors should be in-house employees.

Mr Mahlobo pointed out that only by the time officials came to the end of the implementation of a Bill, did they understand the degree of capacity required. One mistake over the past four years had been the plethora of legislation passed without any understanding of what was necessary to get the various pieces of legislation working. People underestimated the magnitude of a task. A phased-in approach was good, but high-level costing would allow the Committee to push for more resources.

The Chairperson remarked that what would help was what the Committee had been saying all along: certain aspects could not be implemented immediately. Despite this, she would hate that point to hold up the Bill’s implementation. The Committee had made its point clear and she was moving on.

Clause 4
This clause amended section 27 of the Act, which dealt with the additional functions given to the National Consumer Tribunal. It was purely consequential. The debt intervention would be a referral and not an application to the Tribunal, and section 27 would allow the Tribunal to accept those referrals.

The Chairperson recalled that she had wanted the CEO of NCR to comment on clause 3.

Ms Mothegare stated that when the Micro Finance Regulator, which had been incorporated into the National Credit Regulator, was first established, it had been obliged to register credit providers. As there was a huge number of credit providers to be registered, it had appointed people from audit firms to deal with the applications. However, she could hear that the Members would like to see capacity built within the NCR, over and above the new people who would have to be appointed. The NCR would have to work very closely with DTI and get people from DTI to assist with the implementation. The current staff component was 155 so NCR needed more people and new offices and would need R50 million to start off, but that figure did not include officers who would be providing financial literacy programmes.

The Chairperson said that capacity was required to implement any legislation, but the degree was greater in the Bill before them.

Clause 5
This referred to section 60 of the Act and dealt with the right to apply for credit. It was over-kill to put it into the Act but Adv van der Merwe wanted to make it very clear so that there were no loopholes at all for people who wanted credit. Whether one applied for debt intervention or credit relief, there would be a period in which one could not apply for credit. The Act would be amended to state that while it recognised everyone’s right to apply for credit, there were particular limits for those to whom debt relief measures applied.

Clause 6
This inserted new section 69A because there was no register of debt intervention applications as yet and there was a concern that that applications might get lost. Section 69A, therefore, required that a National Record of Debt Intervention be kept of all persons who applied for debt intervention. The information in that record could only be published with consent of the debtor unless the publication of the information was prescribed in law. For example, if the NCR required the names, it would be given access to them. Extra information could only be published by consent of the person requiring debt relief. There would be a record to allow publication, but privacy was protected.

Mr Mahlobo commented that it was a helpful amendment.

Clause 7
This is section 70 of the principal Act and dealt with credit bureau information. It included any information on a consumer application and would, in future, include any application for, status of and orders granted for debt intervention. Further, if the NCR provided information about a debt intervention application, it had to be accepted free of charge by the credit bureaus.

Clause 8
This amended Section 71 and dealt with the removal of information by credit bureaus. A debt intervention applicant who had completed all requirements, had to be issued with a clearance certificate by the NCR within seven business days, and the NCR had to submit a copy of the clearance certificate to all registered credit bureaus. If either of these functions was not fulfilled, the debtor could approach the Tribunal.

Adv van der Merwe informed the Committee that all clauses had been drafted after consultation with the credit bureaus. An agreement had been reached and the credit bureaus would be able to execute the clauses as they stood.

Clause 9
This amended section 71A in the Act. It required that once a rejection or any order relating to debt intervention had been sent to the credit bureaus, the bureaus had to remove the listing within seven days. The original Act referred to seven ‘days’ and not ‘working days’, so that timeframe had to be retained. When there was a suspension, it would extend further than the date of the order, so the end of the suspension period had to be indicated on the credit bureaus listings. If there had been a limitation on the right to apply for credit, the limitation ended within 7 days of the date of the order. Whichever date was later, that was the date to be indicated. If there was a rehabilitation order, then only the date of the rehabilitation order was relevant.

If there was a dispute about the information supplied, the consumer would have to approach the Tribunal as in Section 15. The Regulator could not be approached because it was involved in the process. Section 15 (3)(E) required the credit providers to submit the same information to the credit bureaus. That meant that both the Regulator and the credit provider had to submit the same information, and a problem would be flagged if the information was different. The process also ensured that the credit provider had captured the updated information relating to the consumer.

Clause 10
This was inserting new section 82A. It dealt with recording and reporting on credit agreements. The Committee had decided that debt counsellors had to report a reckless credit agreement, but debt counsellors were concerned that they would not have all the information to be able to assess if the agreement had been reckless. Subsection 1 required the debt counsellor to report to the Regulator or to the magistrate who was looking at the debt review. Subsection 2 required the credit provider to submit a list of information and documentation required, at a fee which would be prescribed. The point had been flagged as the phrase ‘such information’ had been seen by the public as too vague and it had been changed. The exact documentation required had been listed to provide clarity.

The Chairperson noted that Mr Cachalia had raised the point initially.

Mr G Cachalia (DA) was happy with the amendment to the wording.

Adv van der Merwe continued, explaining that subsection 3 made it clear how the credit regulator was to deal with the situation. NCR would deal with it as if it were a complaint.

Mr Mahlobo had noted the point about ‘seven days’ but somewhere else in the Bill, there was a reference to seven ‘business’ days. Legal Services should look at addressing that inconsistency when cleaning up the Bill, so that the number of days was aligned.

Adv van der Merwe explained that she could not change all references from ‘seven days’ to ‘seven working days’ as the Act itself was not consistent in respect of ‘days’ and ‘business days’. When she inserted a clause, she was using ‘business days’, except where the Act had already used ‘days’ in a specific section. There she had to use ‘days’ to align with the Act.

The Chairperson asked that this be raised with the Principal Law Advisor. Did the amendments have to use the same words as used in the Act, even if the words had been used inconsistently? It would be good to change all references to ensure alignment throughout the Act. She had assumed that it would be a technical amendment.

Mr Mahlobo felt that if there had been ambiguity in the past, it had to be corrected, unless the different interpretation of the number of days was intended. It could not be left to each person’s interpretation. Legislation had to be clear as democracy matured so that it became easier to read the law. The Chairperson had given a good directive.

Adv van der Merwe said that there were two ways of dealing with the problem. She could correct ‘days’ to ‘business days’ but she would have to advertise the change in each clause where the incorrect phase had been used, and the rationale behind changing it. The second option was to wait for the bigger review of Act which was underway, and DTI could be requested to address it in the review of the Act.

The Chairperson thanked the legal advisor and asked the DTI DDG to take note of the request, but she asked that the legal advisor also raise it with the head of her section.

Subsection 4 dealt with the failure by a credit provider to comply and that it was an offence not to comply, but a specific sanction was not provided. The current sanction for the Act was 12 months or a fine but the clause would have to be advertised for comment. There had been questions about the criteria for something to be considered an offence. Adv van der Merwe said that it depended on how serious the offence was, but she had some examples where actions were subjected to a fine. However, it had been found that a fine was not always a deterrent. There were two options: go with a fine and then there was no need to advertise, and it could be amended later, or to declare it an offence and advertise the clause for public comment.

The Chairperson stated that the issue depended on so many things. The section asked credit providers to provide documentation, but that type of requirement was continually flouted. What was the impact of flouting that requirement?

Adv van der Merwe said that if the information was not provided, the assessment by the debt counsellor could not be completed.

The Chairperson said that, in short, it meant that the relief would not be provided. Now that the Committee understood, she was asking for Members’ comments.

Mr Radebe believed that it was critical for the information to be provided because if debt counsellors could not get the information, it went against the core principle of the Bill and people sold off their debt very quickly. Why did the consumers face a 24-month prison sentence if they did not provide correct information, but not credit providers? Credit providers made millions of rand, so they just budgeted for the administrative fine.

Mr Mahlobo asked if for real reasons the information could not be supplied timeously, what kind of tolerance was there in the Act for those credit providers who had real problems meeting the deadlines. Would a criminal offence be appropriate for people who simply could not supply the information? What sort of tolerance level was possible? The action against someone who did not adhere had to be significant but not overly severe.

Mr Williams thought that a fine was the best route. He was cautious about creating an offence. The legislation should start with an administrative fine and if the credit providers failed to implement that requirement, then it could be made an offence. Members did not know how credit providers would respond. He wanted to give them a chance to implement.

Mr A Alberts (FF+) agreed largely with Mr Williams. One must ask oneself what the most effective measure of getting cooperation would be. The police were overloaded and matters that were administrative in nature could not be compared to serious crimes. He did not think that the police would have the will to deal with those crimes compared to what they faced daily. Service providers dealt with funds, so they should be hit in the pocket with an administrative fine. If service providers were obstinate, it would provide clear evidence that the legislation had to be changed to make it an offence.

Mr Cachalia stated that the key words were proportionality, effectiveness and driving compliance. What was needed was a mixture of the carrot and the stick. The Bill was applying the stick exclusively but should also apply the carrot.

Mr Radebe said it dealt with credit providers, not credit bureaus. If someone could not comply, that provider had to show why he could not comply. If information was not shared properly, the process could not continue in a proper way. If the credit provider was running a business worth millions of rand, what was an administrative fine of a few thousand?

The Chairperson said that she may have misled Members. The clause related directly with reckless credit. That subsection had to be read together with subsection 2 which set the standard of seven days. She wanted to be sure that everyone knew exactly what they were talking about before they moved on.

Mr Mahlobo agreed that it was serious. The information was available, and it was simply a case of sending a file within seven days. Surely, it could not be too difficult to comply with that. It was serious, but there had to be space for those experiencing problems in complying.

Ms Mantashe suggested that the Committee had presented ideas and needed to move on.

The Chairperson pointed out that a decision was needed.

Mr Williams understood how important it was for a credit provider to give the information, but if he did not provide the information and it was made a criminal offence, the matter could be in court for years and years. It would not be helpful for a person waiting to be assessed while the credit provider kept going to court. He hated to give the private sector the benefit of the doubt but he really believed that the process should start with an administrative fine. Credit providers could be told that the process would start with administrative fines but be warned that if there was non-compliance, failure to comply would be made an offence.

Mr Alberts stated that if it were made an offence, it had to be proven in court and proving an offence was very difficult. One had to show that the person had intent to commit an offence. A two-pronged approach was far better: a financial sanction and if there was non-compliance, then it was easier to prove intent.

The Chairperson was informed by the Content Advisor, Ms Sheldon, that a fine could not exceed the greater of 10 percent of annual turnover or R1 million. Members should be mindful of that point. She understood that everyone wanted the legislation to be taken seriously. Members had spent 40 minutes on the point in the last meeting. There were two points of view: an administrative fine or an offence. One point of view was that it had to stop. It could not go and on and an offence was the way to make it stop. The other point of view was to start the ball rolling with an administrative fine and then determine if it needed to be made an offence. Members had to stop the discussion and perhaps it should start with an administrative fine and then work towards an offence.

Mr Williams noted that R1 million might not seem a lot of money to the big firms, but Members had to remember that credit providers were only writing off a measly R50 000. The questions Members should ask was whether credit providers were prepared to spend R1 million on a fine for a R50 000 debt.

Mr Radebe said that the Bill must be explicit that the fine was 10% or R1 million. If the practice persisted, then the fine would be escalated.

The Chairperson asked for a legal opinion.

Adv van der Merwe pointed out that it was the greater of R1 million or 10% of annual turnover. Members had to note that R1 million was the minimum fine, not the maximum. The maximum was 10% of whatever a large firm was making. It could be added that it was a prohibited behaviour fine.

The Chairperson informed the meeting that the Secretary had reminded her that the Wellness campaign had told her that it was necessary to have break, and not run for hours as she tended to do. It was unhealthy to sit for five hours without a break. There would be a 15-minute break.

Clause 11
The clause dealt with section 85 of the principal Act. It allowed the court to declare and relieve over-indebtedness. The court had to have something before it to show that the consumer was over-indebted and then court would make the relevant orders. While the court was considering that, it might also consider if that consumer qualified for debt intervention. The consumer could not be forced to participate in debt intervention. Therefore the change in the clause was to say that the court had to enquire if the consumer wished to participate in debt intervention.

Clause 12
The clause dealt with section 86 on the application for debt review from the Regulator. The key point in the section was paragraph (b). The Regulator had a concern about when a debt review was before a court, the court indicated that it did not have the powers to reduce the interest rate. Adv van der Merwe said that her interpretation of the Act was that the court could reduce the interest rate, but some courts were interpreting it otherwise. The Tribunal could reduce the interest rate, but the Committee wanted the court also to be able to reduce the interest rate. As that would be something new, that clause would have to be advertised for public comment. Adv van der Merwe had inserted that both the Tribunal and the courts could reduce interest rates in section 86(b) so that it would not have to appear twice in the Act. It was one of the  flagged items and that was how she had resolved the concern.

Clause 13
This clause created new section 86A, which dealt with the application to the NCR for debt intervention. The consumer had to be given debt counselling and it also ensured access to training for consumers to improve their financial competency. Nothing much had changed from the previous draft. The amount of R50 000 had been flagged, but it had been agreed that changing this amount would be dealt with in the regulations. Following the assessment, the NCR could take a number of decisions. The important ones were contained in subsection 5(d) and (e), both of which allowed for debt intervention but (d) required the consumer to complete the process within a period of five years.

The requirements in subsections 6 to 11 appeared in section 86 of the Act which dealt with debt review. There was no change. In subsection 12, the R7 500 and R50 000 could not change because that clause referred to the shorter period of debt review, i.e. 48 months. Only the Minister could extend that period and only after consulting the National Assembly.

Clause 14
This dealt with section 87 and the heading had been changed to refer to the fact that either the Magistrate’s Court or the Tribunal might rearrange a consumer’s debt obligations, including changing the interest rate. It included the fact that the interest rate could be reduced to zero.

Clause 15
This clause created a new section 87A headed ‘Other orders related to debt intervention’. This clause dealt with extension and extinguishment. The clause retained the status quo that a single Tribunal member could consider the request. The Tribunal could make an order that either the debt intervention applicant did not qualify for debt intervention and reject the application, or the Tribunal could suspend all of the qualifying credit agreements. The Tribunal had to require the consumer to attend a financial literacy or financial capability programme. There could be no suspension without the literacy programme being a requirement. Subsection 3 presented a number of factors that the Tribunal had to take into consideration. The total amount of the debt had been changed because it became the total unsecured debt, which included the original debt plus interest and charges.

Subsection 4 dealt with how a suspension worked and there were provisions for the prescription to lapse at the end of the suspension. Subsection 5 required that the process of debt review had to be reviewed after eight months and after checking the income and assets, the debt was then either re-arranged or sent back for a further suspension. After a second period of eight months, the Tribunal had to review what the consumer could or could not pay. A recommendation had to be made for repayment of the debt or the consumer had to be referred for the extinguishing of debt. The first step was always: “Could the consumer pay?” The Tribunal had to inform the credit provider of the reviews and the credit provider could make representations.

Subsection 6 allowed the Tribunal, after considering the factors in subsection 3, to declare the total cost of debt extinguished. Subsection 7 permitted that only a part of the debt might be extinguished but that reduction had to be spread across all creditors. Subsection 8 stated that when a debt had been extinguished, the consumer’s right to apply for credit had to be withheld for a compulsory period of 12 months but in subsection 9 the period could be extended to 24 months at the discretion of the Tribunal.

The legal advisor referred Members to a diagram mapping out how long a consumer would be out of the credit market. If the 24-month period was imposed, then the consumer would have been out of the market for four years. The minimum compulsory period of 12 months was for someone who, for example, had been retrenched and could not pay his debts whereas the extended period was for those who had not been quite honest in their dealings. That period had been flagged.

Mr Williams said that he thought the Committee should go for the 12 months because a person had been out of the market for a long time. Simply because one could access credit after that period, did not mean that one would get credit, especially as one had been through the debt relief process. It was a long time to be out of the credit market. Twelve months was a reasonable period.

The Chairperson responded to the statement by Mr Williams. She observed that during their visit to the UK, Members had come across a clause in the UK Act that if a consumer needed to get something urgent, such as school shoes etc. once there was debt relief, the consumer could apply for that credit. However, she was hearing the Committee say that it wanted to keep the cooling-off period at 12 months.

Mr Radebe asked what the situation would be if, when the application had been made, the person had been unemployed, but he had since been fully employed.

The Chairperson asked if he wanted to add a qualifier.

Mr J Esterhuizen (IFP) agreed with Mr Williams on 12 months but if the applicant’s financial circumstances did not improve then the debt could have been extinguished and the legislation was setting a precedent that one could get into debt and then go straight back into the credit market.

Mr Williams admitted that the English experience had slipped his mind. During the time that the consumer had been going through the debt relief process, that consumer had been unable to access debt. In the UK, the Committee Members on the trip had been told that there had been no moral hazard after debt had been extinguished and there was no debt failure by people who had received relief and then borrowed money. Perhaps the Committee should reduce the time to six months. So, it would be four years plus six months and the person would have had some financial training.

Mr Kumkani from DTI stated that prior to the National Credit Amendment Act passed in 2014, there were people listed in the credit bureaus for judgements and even when they had paid up, the judgement would stay in the credit bureaus for five years. So, they had decided that a judgement had to be removed from the bureaus within seven days. The 12-month ban could be discriminatory as other people who had paid up their judgements were removed and then could access credit after seven days. He was concerned that preventing consumers from accessing credit might have constitutional implications.

Adv van der Merwe pointed out that the clause was not dealing with paid-up debt. There was a concern by the public that there were no consequences for having one’s debt extinguished. She advised that there should be a compulsory period and then perhaps a discretionary period of 24 months.

Mr Williams stated that he stood by his suggestion of six months as a consumer would not have had access to credit when he was writing off a debt of R50 000 over four years and because everyone had been told about his debt problems, that might play against him when he was able to apply for credit. It was a difficult decision because he did not know how the consumer would respond. The Committee had given credit providers the benefit of the doubt and now it was time to give the South African people the benefit of the doubt.

Mr Radebe agreed with Mr Williams because the extinguishing of the debt came with training. Mr Kumkani’s point held water. Why not allow credit after seven days?

The Chairperson reminded Members to be cautious in respect of the constitutional aspect. The question raised was whether it was reasonable. What did seven days mean? At one point the Committee had said that it wanted to avoid going to the Constitutional Court. Whenever there was an attempt to write off debt, the mainstream would react, and the Act would find itself in the Constitutional Court. She was not telling Members what to do but was reminding them of the decision to avoid the courts. If there was a precedent of seven days, would the Constitutional Court expect the same to apply in the case they were discussing.

Adv van der Merwe stated that there was a difference between seven days after the consumer had paid off the debt, and the current amendment which was about the extinguishing of a debt. There was a consequence for the credit provider, but no consequence for the consumer. The period of not being able to get debt was intended to balance this. So, if six months was the compulsory period, was there to be a discretionary, optional period?

Mr Mahlobo said there had to be a cooling-off period because there had to be a deterrent for some of the actions taken. One did not want to expose people to too much risk and for them to get into bad debt again. He thought that the period could be shortened but that did not mean the system should be opened up for exploitation. The idea was that four years was a long period. If you had paid, you did not have to face consequences. He thought six months would be fine, but it was a debatable figure.

Mr Radebe said that in the spirit of ensuring rights and responsibility, he supported six months.

Mr Alberts reminded them of the legal advice about not taking away discretion from the Tribunal. He suggested that they have a first period of six months plus a period in which Tribunal could use its discretion.

Mr Cachalia agreed that consumers did need a cooling-off period, but the question was how long the cooling-off period should be. A responsible credit provider would take such things into account, but the Committee was dealing with the reckless credit provider. The reckless credit providers should be dealt with. How were the reckless credit providers going to be dealt with? If those people were not dealt with, the situation of over-indebtedness would continue.

Ms Mantashe aligned herself with Mr Radebe, because she could not differ from her party whip.

Mr Williams suggested that some of the issues raised had been covered. A consumer could buy his way back. He proposed six months plus an extra six months at the discretion of the Tribunal. That was sufficient as they were writing off only a R50 000 debt. The training was important because consumers would better understand how to manage debt. That was the big difference.

The Chairperson commented that there had been a lot of discussion but Mr Williams had added a new dimension so there was six months but to put a lid on the 24 months would put a lid on the discretion of the Tribunal. The six months plus a discretionary six months sounded reasonable.

Mr Esterhuizen agreed in principle, but even a two-month rest period would be adequate. But, as Adv van der Merwe had said, there were no consequences for consumers. Nothing in the world was free. The courts were already full. If it were longer, the consumers would go to the money lenders. The consumers needed credit, so even two months was a long time. The Committee did not know the financial impact, but it was clear that the financial institutions would make it very difficult for those consumers to get credit. The Committee needed to do a financial impact study after the debt extinguishing had been done.

The Chairperson said that the Department would do an impact study of the Act but that would only be after the fact. She had been reminded by the Committee staff that the exclusion period was three years and not four years as some Members had mentioned. What was the full exclusion period?

Adv van der Merwe said the processes would be finalised, including the extinguishing, within the third year.

The Chairperson said that six months was a minimum and then there was another period at the discretion of the Tribunal. They would not put a time limit on the period of discretion of the Tribunal.

Mr Williams noted that as long as the Tribunal had discretion, the length of time at its discretion would not matter constitutionally.

The Chairperson noted that the Committee had been working with 24 months for some time.

Mr Williams asked for clarity if his 12-month proposal had been totally rejected. The number of months of discretion did not matter as long as there was some discretion, so he was suggesting six months plus 12 months.

Mr Mahlobo said that it was not that the Members did not support Mr Williams. They were trying to find a balance. Six months was a cooling-off period. The Tribunal was best placed to decide on the discretionary period. He remarked that the silence of the Members had been consent, not disagreement.

Mr Cachalia said that from the date of application to the extinguishing, it was his understanding the person could not get debt. Now the Members were talking about another six or 12 months. It was a message about the moral hazard. The cumulative period was at least three years.

Mr Radebe agreed with Mr Williams.

The Chairperson asked the Adv van der Merwe to advise what amount of time she had capped the Tribunal’s discretion to withhold access to credit.

Adv van der Merwe said that she would do six months’ compulsory cooling-off period and add that the discretionary period of the Tribunal could not exceed 12 months.

The Chairperson stated that that point had been decided and she would brook no further discussion until the Committee voted on the clause.

Subsection 10 dealt with orders and subsection 11 related to the provision of false information which meant that an order might be rescinded. Subsection 12 had been deleted because it had been moved to section 86A so that the referral was limited, and not the order. Subsection 16 dealt with effective intervention and rehabilitation. There were no changes to effective intervention from Draft 5 which had determined that there could be no further action or litigation by the credit provider after the debt had been extinguished.

Clause 16
Adv van der Merwe explained that Section 88B was an application for rehabilitation. There were clauses in Draft 5 between the effect and the rehabilitation that had been removed as it was provided for elsewhere. Not much had changed in the application. If the consumer had proof and had repaid the cost of credit, then application for rehabilitation might be made but there had to be proof that training had been completed. The Minister might prescribe other issues. Operational issues had been removed from the Bill. The subsections that followed showed how the process would work and stated that any limitation to the right to apply for credit was ended on the date of the rehabilitation order.

Clause 17 and 18
Sections 89 and 90 were amended to deal with unlawful credit agreements and empowered the Tribunal to make orders about unlawful credit agreements. They were consequential changes.

Clause 19
This clause amended section 106. It made credit life insurance compulsory. Subsection 1(a) allowed for the period and the amount of R50 000 to be amended. It also stated that it was not the credit provider who entered into insurance, but the credit provider had to require that the consumer entered into credit life insurance. There would be a limit to the cost of insurance. The Minister would prescribe the cost of credit life insurance in consultation with the Minister of Finance as insurance fell under the Minister of Finance.

Mr Cachalia noted that Members would need to apply their minds to the insurance clause as to who would sanction the parameters of the insurance, and the training, or who got to choose. It opened the door to potential misuse.

The Chairperson asked Mr Cachalia to explain his point.

Mr Cachalia stated that once insurance became compulsory, he was concerned about how the providers of insurance and training would be selected. Who had the choice to appoint them?

The Chairperson explained that the Minister would prescribe the cost of credit insurance. Training would be provided by NCR or even other institutions, as timing and capacity for training had to be addressed. Was Mr Cachalia looking at capacity?

Mr Cachalia remarked that if training and insurance had to be provided, the Bill was creating potentially lucrative opportunities. Who would provide permission for those who wanted to train or offer insurance, and at what cost?

The Chairperson noted that Mr Cachalia was talking about two different issues which were not the same thing. As she understood it, credit life insurance was compulsory.

Mr Williams understood Mr Cachalia’s question. The Bill was creating opportunities, so the question was who would benefit. Whose training company would do the training? There had to be a mechanism to manage that and he thought that the mechanism could be created through the Regulations. If the insurance industry used the prescribed costs, consumers should be free to choose. Perhaps the SETA could train.

Mr Mahlobo noted that Mr Cachalia had raised a fundamental point, but details could not be put in the Act. There was an opening for a new risk, but it did not apply to the Bill. DTI had to apply their minds in the Regulations so that these would be ready when the Bill was passed as the Committee did not want to put consumers at risk by creating new risks. There was also the question of the cost of training which had financial implications.

The Chairperson noted that the Committee had determined that there had to be compulsory insurance, but Members did not want to see the situation abused, and that was the challenge. She noted consensus that the matter would be addressed in the Regulations.

Adv van der Merwe stated that the insurer would offer insurance and the consumer would choose. As far as training was concerned, the Regulations would ensure that certain institutions offered the training, but she did not have details.

Mr Mahlobo commented that as much choice as possible had to be available. Adv van der Merwe should ensure that the fees should not compound the situation. It was an economic issue. How did one get into the market?

Clause 20
The consequential involvement of the Tribunal was included in section 129. Subsection 4(d) was added to make it clear that that section referred to cases where only a portion of the debt due under a credit agreement was extinguished.

Mr Esterhuizen did not want to sound negative, but he was concerned about the extinguishing of debt as there were about 16 million people who could want extinguishing of debt and the Committee could be talking R800 billion, or even R400 billion. He was worried about the financial impact on the country. He was referring to clause 20.

Mr Williams responded to Mr Esterhuizen, saying that the cost had been discussed in the Subcommittee and Members had looked at it intensely. The impact had been discussed as well as the moral hazard and the unforeseen consequences. Members had also discussed that with colleagues in the UK. When business talked of the debt that had already been written off, it appeared that a massive amount of money had already been written off. The process of rehabilitation would take years and years, but South African society was over-indebted because of irresponsible lending and it was in the best interest of South Africa to resolve this.

The Chairperson said that had always been the position of the Committee.

Mr Esterhuizen replied that he could not comment on the trip to England as he had not known about it. However, he could not agree that circumstances in the UK were similar to SA. He was just concerned that it could make things even more difficult for consumers in the future.

Dr Evelyn Masotja, DTI DDG, said that the Department had originally presented a figure of 9 million consumers requiring debt relief. However, looking at debt payment trends, it seemed that there were 1.5 million consumers who would need debt relief, so it was not as astronomical as originally thought.

Clause 21
This clause referred to debt procedures in court and was a consequential agreement. Once a debt had been extinguished, a court could not consider the matter.

Clause 22
This clause was a consequential amendment to section 137. It dealt with debt intervention applications to the Tribunal which had the power to deal with applications.

Clause 23
The clause made consequential amendments to section 142, making it clear that the Tribunal could hear applications. The Tribunal and the NCR were creatures of statute and their powers had to be spelt out.

Clause 24
The clause amended Section 152. It was consequential and dealt with status and enforcement orders.

Clause 25
This dealt with offences and was inserted as section 157A to 157D of the Act. The provision of false information or misleading information was an offence. It was intended to prevent abuse. Section157B dealt with all administrative conduct that was prohibited. Selling a debt or collecting on a debt under prescription was an offence. Section 157C dealt with offences related to registration and was a key section in the Bill. If someone who provided credit as a business was not registered, that person was guilty of an offence. It applied to a practice, but a person was not guilty if it was a once-off transaction and not linked to the person’s main line of work. For example, an attorney might pre-pay for someone, such as in the purchase of a house, and that became an incidental credit agreement.

Mr Williams asked if the clause meant that loan sharks were being made criminal. Previously it was not criminal to be a loan shark. He asked if the clause criminalised unregistered lenders.

The Chairperson recalled that there had been some issues around the arresting and sentencing of unregistered lenders.

Adv van der Merwe explained that under section 137 anyone who acted as a credit provider but was not registered as a credit provider was committing an offence.

Mr Cachalia asked if he would be a mashonisa if he lent someone some money.

Adv van der Merwe explained that a once-off transaction was not an offence.

Mr Mahlobo said that, broadly speaking, lending between individuals had landed many people in trouble in terms of corrupt activities. Whenever you tried to close something, you opened up something else. Other legislation dealt with those things because there was a very thin line between a genuine loan and corruption.

The Chairperson agreed that he was making a point about practical implications.
 
Mr Williams noted that the legislation stated that if lending money was not one’s principal business, one would not fall foul of that law. The very name ‘loan shark’ told one what he did.

The Chairperson said lots happened informally but the Committee was not concerned about that. It knew who it was getting at. What did an offence mean?

Adv van der Merwe explained that if one was found guilty of an offence, it meant that the action had been criminalised and one would have a criminal record if one were found guilty. It was not just payment of a fine.

Clause 26
The clause substituted for section 161 of the principal Act and detailed the penalties.

Mr Mahlobo asked about simplifying details for implementation purposes and for those who might be affected. He suggested that they consider including a schedule of offences at the end of the Bill.

Ms Mantashe noted that the Committee was becoming wiser every day. Members had experience of people not complying with the BBBEE Act.

Adv van der Merwe noted that Part B dealt with all the offences in the Act, so they were all together.

Mr Mahlobo said that when offences were collated in a schedule at the end of the Act, it was a very useful instrument.

Adv van der Merwe discussed the penalties. The only change from Draft 5 was that where it stated that a person who had supplied false information could be jailed for ten years, that period of time had been reduced to two years. A company paid a fine 10% of the annual turnover or R1 million, whichever was the greater. The factors to be taken into account were included to give guidance to the courts.

Clause 27
Section 164 was a consequential amendment to civil action and jurisdiction and gave powers to the Tribunal.

Clause 28
The clause amended section 165 and dealt with instances where a Tribunal would change or rescind an order as a result of some action by the consumer.

Clause 29
This flagged clause amended section 171 and dealt with regulations. The first part was important as (a) dealt with the levy. The Minister had to make regulations in that regard and he would determine where the programmes would be located. The second part dealt with the levy itself. A levy constituted a Money Bill and had to go through the Minister of Finance. So, section 171 determined that the Minister had to consult the Minister of Finance on the funding of the obligatory financial literacy or financial capability programme. It would be a behind-the-scenes political discussion and, although the intention was to impose a levy, that was not stated in the Bill.

Mr Williams noted that the clause did not put the emphasis on the levy. It did not say who would pay the levy. Could it be locked down? What if the Minister of Finance did not agree, then what would happen to the financial literacy training that was fundamental to the implementation of the legislation?

The Chairperson asked if the term ‘levy’ could be introduced if the Bill did not say how much. That was the measure that the Committee wanted in order to achieve certain ends.

Adv van der Merwe replied that they were walking a very, very thin line but she would look at other Bills and see if there was something that could be done without changing the classification of the Bill.

Dr Masotja pointed out that, depending on how it was phrased, the Bill might have to be turned into a Money Bill. In terms of the provisions, it talked to training and they did have a literacy training component in the Bill. She did not want training to be paid for by credit providers. There had to be money elsewhere.

The Chairperson did not want to turn it into a Money Bill but the point about the levy needed to be as clear as possible.

Mr Williams did not see anything wrong with credit providers paying for financial literacy training. In the UK, the banking sector had accepted responsibility for over-indebtedness. Credit providers in South Africa needed to be ‘persuaded’ to do the same.

Mr Radebe said that the way it was couched was proper because it had removed the Bill from the Money Bill problem. It did say that there had to be some money to pay for it. They had to avoid constitutional challenges.

Ms Motshegare, NCR, assumed the costs of training could be incorporated in the fees paid by credit providers as registration fees each year. She suggested that a proposal be made to DTI to publish regulations about that and then credit providers could make inputs to DTI on the regulations.

The Chairperson asked why it was not a Money Bill when dealing with registration fees. The Committee did not want to cross the line into a Money Bill.

Adv van der Merwe stated that it is not a Money Bill because it was an administrative fee and not a policy decision. It was a technicality, but it was still a thin line.

Mr Mahlobo said that the Bill should not be too prescriptive. It was broad enough and not too prescriptive and would not cause the Bill to become a Money Bill. He could live with it as long as the funding issues were addressed. The mechanics of how it was done was not the issue.

The Chairperson agreed that the Committee would not use the word ‘levy’. All Members were to refrain from using the word.

Mr Williams noted that the debt review process had to be paid for. Who was going to pay for debt review?

The Chairperson stated that DTI had money that it could use, and it could raise registration fees. But she really did not want Committee Members to use the word ‘levy’.

Mr Mahlobo said that the implementers would have to look at a phased-in approach and someone had to put the resources there. He agreed with Mr Williams that one should not put something in a Bill for which there were no resources. But, equally, the Bill was important, debt review was essential, and people really did need financial skills. Hundreds of thousands of people would benefit and the system would be better for the process.

Adv van der Merwe stated that clause 29(b) dealt with a prescribed measure and there were constitutional concerns about it. She thought that there was enough guidance in the Bill and she had also aligned the Bill to the Disaster Management Act. Instead of speaking of a ‘regional natural disaster’, the wording had been aligned to the Disaster Management Act and referred to a ‘national or provincial’ disaster. The Bill required that a disaster had to be declared in terms of the Disaster Management Act and it had to be a significant exogenous shock which caused widespread job losses. It then became a policy issue.

Mr Mahlobo referred to the amendment of Section 171. He asked if it was intended to apply where there were job losses and loss of income. Was it only for those who had a job or was it intended to be for anyone who was unemployed, etc.?

Mr Williams agreed. One could be in the informal economy and lose one’s income.

The Chairperson suggested that the sentence could end after the word ‘shock’. It had originally ended there but the Committee had asked for the change.

Adv van der Merwe explained the rationale for the ‘significant exogenous shock’. The Bill was about a debt intervention measure that had to be prescribed. The reason for the debt intervention measure was that people could not pay their debts. People who had jobs was the reason for the measure, but the measure might benefit a long list of people. Those who had experienced job loss was the trigger for the debt intervention, but many more people would benefit. The clause addressed three factors as it (a) dealt with the trigger; (b) dealt with the measure; (c) dealt with those who qualified for assistance.

Ms Mantashe proposed that the initial version be kept.

Mr Radebe asked if pensioners would be assisted in the event of an exogenous shock.

Adv van der Merwe referred to the addition of Section 171(2B) which allowed the Minister, by notice in the Gazette and after having considered the listed factors, to adjust the amount of the maximum gross income of a debt intervention applicant. The Minister could likewise adjust the amount of the qualifying debt but before he made any adjustments, the Minister had to table the adjusted figure in the National Assembly with the rationale for the adjustment and obtain approval from the National Assembly.

The Chairperson agreed that the drafting was exactly what the Committee had requested.

Long Title
“providing for debt intervention” would be added.

Clause 31
This clause dealt with the transitional provision, so it was retrospective. Any credit agreement entered into before the Act came into operation, applied, if all the criteria were met.

The Chairperson asked the Adv van der Merwe to list the four or five items which the Committee needed to inform those who had attended the public hearings in order to allow input from them. It would be a two-week process. At the same time, the Bill would be handed to the constitutional experts for comment.

Adv van der Merwe said the addition of an offence for credit providers fell away as the Committee had decided to give them the benefit of the doubt. She listed the three items that should be sent for comment: the funding of the measure; the Minister increasing the limits of R7 500 and R50 000 from time to time; and empowering the courts to determine the interest rate.

Closing remarks
The Chairperson congratulated the Members on applying their minds and deliberating so well. She believed that the Committee had reached convergence, but it needed constitutional expert advice. The Committee Secretary would inform those who had attended the public hearings. She believed that within three weeks, the Bill would be back with the Committee.

Mr Radebe asked if Members could have the Committee Report that would go to the National Assembly with the Bill. They should have had it before the final meeting on the Bill.

The Committee Secretary said he would complete and distribute it by the 24th or the morning of the 25th.

Mr Mahlobo commended the Chairperson and the team assisting her. They had done important work. It was a big milestone. Adv van der Merwe and her team had done very well. The method of using a sub-committee to thrash things out had worked well and he complimented the Sub-Committee chairperson.

Ms Mantashe appreciated the support received from DTI.

The Chairperson thanked National Treasury, the NCR, the Tribunal, DTI, the guests who attended the meetings and assisted in various ways, and the Members. The Sub-Committee had completed its work. She thanked the new whip, Mr Radebe, for his support and asked that all Members of the Committee to participate when the Act was debated in the National Assembly.

The following meeting on 30 May 2018 would be on the Copyright Amendment Bill.

The meeting was adjourned