Micro-lending Industries

Meeting report

TRADE AND INDUSTRY PORTFOLIO COMMITTEE;
FINANCE PORTFOLIO COMMITTEE: JOINT MEETING
22 February 2000
MICRO-LENDING INDUSTRIES: BRIEFING

 

The Micro Finance Regulatory Council (See Appendix 1)
Inspections of Micro Lenders (See Appendix 2)
Regulation Of The Microlending Sector (See Appendix 3)

SUMMARY
The regulation of the micro lending industry was discussed with reference to the progress and priorities of the Micro Finance Regulatory Council (MFRC), and its collaboration with the Department of Trade and Industry. The need for the industry is clear because of the widespread lack of access to bank loans. In June 1999, regulations were introduced to create the MFRC, to raise the lending limit of micro lenders to R10 000, to outlaw certain abusive lending practices and to generally facilitate a more controlled and better regulated industry. Abuses within the industry with regard to the charging of outrageous interest rates of up to 30% per month in some instances, access to the Persal system, garnishee orders, pin numbers and cards of borrowers however have persisted and the Micro Finance Association has challenged the constitutionality of the regulations. In November 1999 the High Court in Pretoria ruled in favour of the Minister on all grounds except on the interest rates ceiling. The DTI has commissioned a formal interest rates study, which would be available by May 2000 when the interest rates ceiling would be revisited. Clearly a more effective regulatory system is needed with an interest rate ceiling, under conditions which would nevertheless not scare micro lenders back underground but rather encourage competitiveness and as a result better interest rates and a more tightly controlled system.

MINUTES
Introduction
Dr Alan Hirsch, a Chief Director at DTI, introduced the presentation. He said that it was clear that micro-lending was a macro issue. The scope of this issue had still not been gauged properly. There are at least 8000 companies formally (not necessarily legally) involved in the industry. There is currently over R15 billion handed out in such loans. There are millions of borrowers and thousands of people working in the industry. It is a vast industry with challenges and problems which the DTI is addressing by gradually re-regulating the industry which was essentially de-regulated eight years ago.

The micro-finance industry plays a major role in terms of serving small businesses and low-paid salary earners who have not been effectively serviced by the banks. Their role is clearly needed and the ability of these lenders to enter the market and the interest that some of the bigger banks have in the micro-finance sector indicates that there existed a very significant gap in the market.

There were significant problems which emerged as a result of the de-regulation of micro-finance lenders in 1992/93. This had been done following the observation that there was a great deal of lending taking place in the informal sector. After this de-regulation, loans under R6000 were exempt from the conditions of the Usury Act. Problems emerging since 1992 include the fact that the contractual relationship between lenders and borrowers is often very problematic. Borrowers are not provided with the kind of information and rights with which they ought to be provided. Some micro-lenders have insisted on taking over borrower's "pin" cards - their debit or ATM cards which is an extremely undesirable practice which can be abused and is abused in some cases.

One major problem is the very high interest rates that are charged. Cash lenders charge interest rates of 20%-30% per month which is far above the Usury Act limit which currently stands at 27% per annum!

There is the problem of over-lending. Micro lenders are lending people more than they can afford to borrow. Sometimes the micro lenders do this with the knowledge of the state of indebtedness of some of their clients and sometimes the indebtedness is hidden from the micro lender. Nevertheless the industry is susceptible to people borrowing more than what they can afford to borrow - certainly at the interest rates being charged.

Another problem in the abuse of the court system. It has been assessed that the use of garnishee orders, which allow the creditors to deduct from people's salaries before the money is actually received by the salary owner, is being abused at the moment. There are reports prepared by the Black Sash that indicated that in the George/ Knysna area, bundles of garnishee orders are taken to magistrates who issue them without giving them proper consideration. This occurred in many parts of the country.

There are also problems with the abuse occurring in the Persal system, which is the government's salary payment system. Micro-lenders are able to access the Persal system and be repaid before salary earners are paid their salary. This was happening broadly among civil servants such as teachers, soldiers and policemen.

The challenge is to stabilise, consolidate and re-regulate the industry as far as necessary so that it does effectively serve small businesses and private clients effectively and responsibly. The challenge was to do this as quickly as possible without unduly disrupting the industry.

For the first time the DTI was preparing for prosecutions under the exemption notice but this would be discussed in more detail by Ms Lana Van Zyl. They were quite confident that there would in fact be some successful prosecutions. Up until recently the potential penalties of the Usury Act have not been taken seriously by micro-lenders since the exemption has not been able to be enforced effectively. However this has changed now and this would make a big difference in the forthcoming behaviour of the micro-lenders.

The Development of Policy to Re-regulate the Industry
Mr Sipho Bavuma presented (see Appendix 1 for his slide presentation).

On 1 June 1999 a Government Gazette notice was issued by the Minister of Trade and Industry, Mr Alec Erwin, which raised the limit to R10 000 and provided for some regulation in respect of the way in which lenders were lending. This was not the first attempt to find ways of dealing with the problems, abuses and challenges facing the industry.

The 1992 exemption under the Usury Act (enabling the industry to charge rates that were reflective of the risk and bring it into the open instead of having an underground economy) did not provide detailed guidelines on how the industry would be regulated and it was never anticipated that the industry would grow as quickly as it did.

Hence in about 1994 when the amazing growth rate of the industry was observed together with a great number of complaints by borrowers about the industry, consideration was given for stronger regulation or the removal of the exemption. Nevertheless, following consultation with all stakeholders, it was decided that it was in the interests of the economy, the borrowers and the industry itself, to continue to allow the exemption to exist. There was however a need to take into consideration the abuses and how they could be prevented.

Between 1995 and 1998 several consultations took place under a broader forum which included SMME members, micro-lending associations,
the National Consumer Forum and others. It was agreed that there had to be a process of determining what could be done to favour SMME borrowers and others. It was found that the interest rates, which were being charged were excessive and abusive of the borrowers since the lenders raised anything between 360% p/a to 1200% p/a.

The rationale and the impetus for the promulgation of the revised exemption was the need to protect consumers from abusive lending practices in line with the mandate of the Department. The rationale behind the exemption was an understanding that provisions to regulate the industry would ensure legal lending practices, eliminate unsavoury collection practices, outlaw the taking of pin numbers and bank cards, prevent excessive indebtedness and cap the exhorbitant interest rates levied on loans. What underpinned the DTI policy were the broad objectives of job creation and wealth creation. As a result there was a need to balance the interests of the lenders as well as of the consumers.

The 1 June 1999 Notice requires a lender to keep a copy of the rules (issued in the notice) on the premises and make it available to a borrower. Lenders are required to register with the Micro Finance Regulatory Council (MFRC) which was also created by the notice. A certificate, of the regulatory institution, must be prominently displayed by a lender. A lender must also provide a schedule containing the charges, interest rates and amounts payable in rands and cents before the conclusion of each loan agreement. There is also a three day cooling period which allows the borrower to return the money to the lender if he/she decides not to proceed with the loan. A lender may not retain the borrower's bank card as a condition of granting a loan or as a means of collecting on the loan. A lender may not disclose borrower details without consent. The MFRC which deals with registration of lenders, compliance monitoring, resolution of complaints and education of consumers was approved on 16 July 1999 as a regulator in the micro-lending sector.

Soon after these regulations were issued, some micro lenders challenged the promulgation of the notice on constitutional grounds, saying that the Minister acted beyond his powers, the interest rates were not properly assessed, the taking of pin numbers and bank cards were depriving lenders of a justifiable collection method. In November 1999 the High Court in Pretoria ruled in favour of the Minister on all grounds except on the interest rates.

Appendix 1
The Micro Finance Regulatory Council
Mr Gabriel Davel, the CEO of the MFRC, briefed the committee on the Council.

Legal Status
MFRC is established with directors and staff capacity in place. Government, consumers and lenders are represented on the Board of Directors

Status of legal challenge
Leave to appeal against the judgement referred to earlier will be heard on 29 February 2000. Should the interim order be revived, the MFRC would have to accept personal applications not only applications from juristic persons which would complicate matters further. Pin numbers and access to debit cards would not be enforceable and the interest rate limit would also not be enforceable. Leave to appeal was likely to be granted and this could result in a considerable delay. A pre-emptive response may be required in this regard.

Achievements To Date
Registration systems were in place and large numbers of lenders were registered or were in the process of being registered. These totalled about 5200 lenders. The bulk of formal lenders were thus already registered, with a large number of new corporate / commercial banking concerns also entering the industry.

Complaints management capacity was established and functional. A Call centre was functional and the process for complaints follow-up was in place and operational. The telephone number for complainants to dial is 0860 100406.

Education and communication staff were in place and operational. A campaign was being launched to increase consumer awareness and protection.

Priorities:
Effective enforcement
The MFRC supports the National Inspectorate against unregistered lenders. There has to be a review of the Exemption Notice and Rules to validate and strengthen the MFRC's powers.

The MFRC intends to focus on consumer education and stakeholder communication. It does not support a big-bang approach. The building blocks and alliances are needed that would incrementally address problems.

Research and contribution to policy formulation
Through research and analysis of industry characteristics, it is hoped to determine the level of access needed to finance by borrowers in order to assess the necessary regulatory requirements.

Appendix 2

Inspections of Micro Lenders
Ms Lana Van Zyl presented. Here follows her slide presentation:

ON 11 NOVEMBER 1999 MR JUSTICE MYNHARDT RULED THAT, SAVE FOR THE STATUTORY CAPPING OF THE INTEREST RATE, THE EXEMPTION REGULATION STANDS.

MICRO-LENDERS NOT REGISTERED WITH THE MFRC, HAVE TO COMPLY WITH THE PROVISIONS OF THE USURY ACT.

INSPECTIONS BY THE NATIONAL INSPECTORATE AIMED AGAINST UNREGISTERED MICRO-LENDERS COMMENCED IN THE LAST WEEK OF NOVEMBER / FIRST WEEK OF DECEMBER 1999.

OBJECTIVES OF THE INSPECTIONS:
TO IDENTIFY CONTRAVENTIONS OF THE USURY ACT, IN PARTICULAR:
- INTEREST RATES CHARGED
- ADHERENCE TO THE DISCLOSURE PROVISIONS OF THE ACT.

PERIOD COVERED: FROM 12 NOVEMBER 1999

MICRO-LENDERS IN THE FOLLOWING CITIES WERE TARGETED:
GEORGE, PRETORIA, CAPE TOWN, VEREENIGING AND PIETERSBURG.

ALL INSPECTORS FIRST MET WITH THE SAPS AND THE PUBLIC PROSECUTORS IN THE VARIOUS CITIES BEFORE COMMENCING WITH THEIR INSPECTIONS.

APPROXIMATELY 30 MICRO-LENDERS WERE VISITED IN NOVEMBER / DECEMBER

MAIN PROBLEMS EXPERIENCED:
- INFORMATION ON WHO APPLIED FOR REGISTRATION AND/OR WHO HAS BEEN REGISTERED - NOT DETAILED ENOUGH AND

- SOME MICRO-LENDERS HAVE CREATED THE "AGENT-CONCEPT" TO CIRCUMVENT THE PROVISIONS OF THE EXEMPTION NOTICE

FOLLOW-UP INSPECTIONS WERE PERFORMED IN PIETERSBURG IN FEBRUARY 2000 : 25 MICRO-LENDERS WERE VISITED

INFORMATION OBTAINED THROUGH THE INSPECTIONS, INDICATES THAT, CONTRARY TO WHAT IS PRESCRIBED IN THE USURY ACT, LOAN AGREEMENTS OF MICRO-LENDERS NOT YET REGISTERED GENERALLY DID NOT STATE
- THE FINANCE CHARGE IN MONEY VALUE,
- THE ANNUAL INTEREST RATE CHARGED,
- THE AMOUNT OF CASH ACTUALLY RECEIVED BY THE BORROWER OR
- THE AMOUNT OF THE INSTALMENTS AND
- RATES CHARGED BY MICRO-LENDERS SINCE NOVEMBER 1999 WERE 30 PER CENT PER MONTH, WHEREAS THE MAXIMUM PRESCRIBED RATE IS 24 AND 27 PER CENT PER YEAR.

NI IS PREPARING THE NECESSARY STATEMENTS FOR SUBMISSION TO THE PROSECUTING AUTHORITIES. THESE AUTHORITIES WILL BE REQUESTED TO CONSIDER PROSECUTING THE FOLLOWING ENTITIES IN PIETERSBURG FOR ALLEGED CONTRAVENTIONS OF THE USURY ACT:
GEGULUTU FINANCE CC
LOUHEN (PTY) LTD
CASH WISE
NKADIMENG QUICK CASH

ANY PERSON WHO FAILS TO COMPLY WITH ANY PROVISION OF THE USURY ACT IS GUILTY OF AN OFFENCE AND LIABLE ON CONVICTION TO:
- A FINE NOT EXCEEDING R10 000 OR

- IMPRISONMENT FOR A PERIOD NOT EXCEEDING 3 YEARS OR

- BOTH SUCH FINE AND SUCH IMPRISONMENT.

IMPRESSION OF THE INSPECTORS: INCREASED NUMBER OF MICRO-LENDERS APPLIED FOR REGISTRATION - WILLINGNESS BY MICRO-LENDERS TO COMPLY WITH THE EXEMPTION NOTICE.

Discussion
Mr A Feinstein (ANC) asked what the average turnover and/or profitability of the micro lenders would be. Secondly he asked, in relation to that average, whether the potential penalty on conviction, of a fine of R10 000 would not be far too small to have the impact that DTI hoped for.

Mr Davel said that according to research, with the micro lenders the profit could vary anywhere from R27 000 to R5000 per month, depending on how big the outlet was. His assessment was therefore that a fine of R10 000 would have an effect.

Mr Moosa (ANC) asked whether there was a possibility of terminating the moneylender's ability to do business as well as part of a criminal sanction. Secondly he wanted to know what the court's reasoning was in rejecting the capping of the interest rate.

Mr Hirsh said that the judgement was a very considered one. The judge found that the DTI had indicated to stakeholders that a certain process would be followed whereby the exemption notice would be derived. This process involved an opportunity for the public and interested parties to participate by reviewing and responding to documents. The DTI had also indicated specifically that they would undertake an interest rate study and on the basis of this study, the interest rate would be capped. The DTI had undertaken a study of interest rates internally within the department, in which they had looked at a number of countries. They had adopted the Australian system's formula which was ten times prime as the annual cap. However the judge found that what the DTI considered to be an interest rate study was too informal. The DTI chose not to contest this finding by the judge, and it has instead commissioned a company, through public tender, to undertake the interest rate study, which should be completed by May 2000. After this DTI intends to revisit the issue of imposing an interest rate cap. Mr Moosa's first question was not answered.

Mr Moosa asked whether there had been any comparative studies in respect of other countries facing similar problems with micro-lending. Were there any solutions found which could be applied to the South African system.

Mr Hirsh said that in addition to the interest rate study, DTI has examined other jurisdictions and tried to learn from them. DTI believed that there were cycles of expansion and consolidation. It was currently in a consolidation phase and they are taking advantage of this opportunity for re-regulating during a consolidation phase so that when the next "boom" phase begins, the system would be more organised.

Mr Moosa also wanted to know whether the 5200 outlets mentioned were separate companies or whether they were larger franchise-type operations with many outlets.

Mr Davel said that the 5200 outlets were owned by about 1200 legal entities. The process of consolidation was occurring extremely rapidly so the number of legal entities were decreasing all the time as single legal entities take over many previously separate legal entities.

Professor B Turok (ANC) asked whether the regulatory system which had been set up was not too loose compared to the tightness of controls within the formal banking industry - which had the Banking Act and the Financial Services Board (FSB) for example.

Mr Hirsh said that the system was not a purely self-regulatory system. The MFRC operates under rules, which are specified in the exemption notice which is attached to the Usury Act. The MFRC was regulating within an agreed system and thus he felt that co-regulation was a better description of the system. However Professor Turok was probably correct in suggesting that the system was not tight enough as yet. The DTI was definitely embarking on a review of the Usury Act, which was out of date, archaic and problematic to apply in certain respects. The provisions relating to the micro-lending industry should be incorporated fully into the Usury Act. In this regard there was a Nedlac process in place which was dealing with consumer protection policy including aspects relating to credit for consumers.

Professor Turok asked what the actual legal status of the MFRC and who paid the inspectors - was there any mechanism for the MFRC collecting funds from the industry as the FSB operates or were they employees of the DTI.

Mr Hirsh said that there were two inspectorates. There was an inspectorate of government (IA) empowered to effect the Usury Act which was headed by Ms Van Zyl. In addition to this, the it is intended that the MFRC engage in inspection activities as well through its own inspectorate (IB). This is indicated in the rules adopted by the MFRC, which should be adopted more formally by government as well. Even though strictly speaking IA should handle unregistered micro lenders and IB registered ones, in practice there is an overlap and if the IA comes across a contravention by a micro-lender falling within the IB's jurisdiction, they would inform the IB and vice versa. Mr Davel added that the cost of the MFRC was borne entirely by registration fees paid by the lenders. In respect of the MFRC, government's contribution towards the cost of the MFRC was minuscule. The MFRC's inspectorate capacity was not "in house". Inspectors were being out-sourced. A tender had been put out two weeks previously for the appointment of inspectors in all the towns and centres to be covered. There would thus be specific terms of reference for specific inspections.

Prof Turok asked whether there was a distinction drawn between micro-lenders and development banks who lent to borrowers for community purposes and small business. If so, how was this distinction made?

Mr Davel said that the dividing line between consumption lending, enterprise lending, development and non-development lending was blurred. For a lender to decide what type of loan is being advanced is tricky. Thus there is no real distinction made as yet. From the international jurisdictions there were no obvious answers to be found. In any case those lenders who were strictly development lenders were very few. The biggest challenge would rather be the imposition and implementation of the regulatory structure.

Prof Turok said that whilst development lenders were a small sector of the total, government's view was that this is a critical area which needed to be encouraged to grow. The DTI should tread very carefully and nurture this sector.

Ms F Hajaij (ANC) asked whether the DTI was thinking about possible regulations with regard to the deduction of wages.

Mr Bavuma said that in a collaborative effort, the DTI and the MFRC were trying to assess the extent of salary deductions and they were also collaborating with the Departments of Finance and State Expenditure in this regard since they had jurisdiction over the Persal system. In this way they would assess whether there were abuses and, if so, the extent of these abuses in order to be able to make recommendations.

Mr Hirsh said that there was a maximum amount that could be deducted from Persal for mortgage payments. Research was being done to determine what could be done in terms of other types of loans.

Ms Hogan (ANC) said that she had spoken to one MEC for Finance who had told her that deduction from the Persall system was illegal and that should she come across any such incident it should be referred to the relevent MEC for Finance. She could not understand how lenders could get access to the Persal system without government collaboration.

Mr Bavuma said that in order for a lender to have access to the Persal system, they needed a code in order to have money deducted and paid to them. He did not know how codes were issued and said that he had only recently learnt about this but knew that it fell within the jurisdiction of the Department of State Expenditure. The DTI did not know the details leading up to the lender obtaining payments in terms of this system.

There were various theories advanced by committee members on what the procedures were for lenders to access the salaries of borrowers directly before the borrowers even saw their salaries. These ranged from written consents entered into between lenders and employers of borrowers and authorised stop orders amongst others. There was no consensus however with regard to the legality or illegality of accessing the Persal system.

Mr Conroy wanted to know what Mr Sipho Bavuma meant by "unsavoury" collection practices. Were they unsavoury to the point that they could be described as criminal. If so, could an industry which had criminal elements as part of it, be tolerated. Finally how could the industry be changed to eliminate these unsavoury collection practices.

Mr Bavuma said that he had used the word "unsavoury" to encapsulate the types of complaints to the DTI such as the taking of pin numbers and bank cards and micro lenders taking an excess amount of cash out of the bank accounts of borrowers.

Acting chairperson Mr Moosa (who had taken over the chair from Rob Davies during the meeting) said that what Mr Conroy was probably getting at was whether there were Mafia tactics such as leg breaking or knee bashing involved. He asked whether there had been such complaints.

Mr Davel said that the DTI have not come across complaints involving the breaking of knee caps or other violent tactics. Even complaints in terms of people using pin numbers and withdrawing more than what was available were rare.

Ms B Hogan felt that the Usury Act was not the most useful Act to set up any regulatory environment. She was concerned that the banking industry had one set of rules while the micro lending industry which was essentially in the same industry, would have different regulations. For guidance therefore, the kind of regulatory environment that the banking industry was under at this stage should be looked to. It had to be ascertained to what extent this regulatory environment would be appropriate for the micro lending industry.

Mr Hirsh said that there were clearly huge grey areas between the banking and micro lending industries that needed regulation. He was not entirely sure why the regulation of the micro lending industry was linked to the Usury Act. There was certainly a possibility that this has caused confusion in terms of jurisdiction which had to be reviewed.

Ms Hogan asked what the understanding was of the unsecured lending of the industry. She said that many of the micro lenders lent from the banks and wanted to know whether this was a common practice. With the inspectorate and the whole inspection program, she wanted to know what the panel would see as being successful. In other words what are the key performance indicators.

Mr Hirsh said that the key performance indicator was not the number of inspections completed nor prosecutions nor fines nor the number of lenders in jail. The essential indicator would be the number of complaints and thus the number of people being abused by the system. When complaints disappear, the DTI would have done its job.

Ms Van Zyl added that prosecutions would also be one indicator. She did not have the current number however. She said that success depended on consumer awareness and knowing how and where to lodge complaints.

Mr Feinstein wanted clarity on the "agent" concept to "circumvent" the provisions. What measures were taken to prevent this.

Ms van Zyl said that the regulations require registration of lenders where there is a money lending business. Thus in some cases they do not lend the money. The "agent' just sits there and in some cases they do not even have the loan agreements there. They just give the information through to the money lender. So it is just a front. Agents do not have to register because strictly speaking they are not in the business of lending money. They are intermediaries.

Mr Hirsh said that it was clear that on the one hand there had to be a preparation and implementation of regulatory systems, which would prevent the kinds of abuses that have operated in recent times. The systems had to be prepared in such a way that they are not so restrictive that micro lenders leave the system again and go to the "underworld" system which operated before 1992. This is the balance which was needed to ensure that micro lenders were responsible, responsive and operate in a system that is agreed on by all parties. The fringe elements would never be done away with altogether, but the widest spectrum possible needed to be incorporated into the system.

Mr Hirsh said that if a lender knew that he had access to Persal then he does not need any form of security since you would have direct access to someone's salary. If you are likely to succeed in getting a garnishee order (an court order which indicates that a salary deduction can take place from a creditor), one would also need no security. Finally control of a bank card would also require no further security.

Mr Moosa the acting chairperson commented that according to the Du Plessis report, there were 30 000 lenders. Mr Hirsh said that this report referred mostly to informal community based lenders who were too small to regulate. Only about 5000 of this 30 000 were relevent in terms of regulation.

In conclusion, Mr Moosa said that some of the philosophical issues around micro lending also had to be approached and not only the technical issues. Questions such as the extent to which the industry is useful and whether the balances have been reached need to be focused on. Another question is whether the formal banking industry is not deliberately staying out of the micro lending business because they can enter the industry as micro lenders and obtain much better interest rates. In other words, it makes sense for a bank not to give a R6000 loan because around the corner at one of its subsidiary companies, a micro lender, it gets ten times more interest. Is the micro lending environment that has been created, defeating some of the objectives?

Further, Ms Hogan said that the exact status of the Persal deductions had to be assessed. The various jurisdictions of the industry have to be looked at. An ongoing report is needed from the joint task team that has been set up to look at the question of jurisdictional differences. The question of the developing finance institutions who fall in the micro lending category but are not giving loans to consumers also needs to be looked at. This concluded the meeting.

Appendix 3

Regulation Of The Microlending Sector
THE REVISED EXEMPTION (1 June 1999)
Purpose: To regulate the micro loans sector and increase amount exempted

Preceding Exemption: December 1992
Exempt loans up to R6000 from charge provision of the Usury Act, 1968

Necessity of Revision:
* Fast growth of the sector
* Increasing prevalence of abusive lending and collection practices
* Wide-spreading indebtedness and debt trap

RATIONALE
* Consumer protection - DTI mandate
* Facilitation of fair and transparent lending climate
* Elimination of unsavoury collection methods
* Outlawing of the taking of pin numbers and bank cards

Capping of exorbitant interest rates levied on borrowers (ranges : 360% to 1200 % per annum)

IMPORTANT PROVISIONS
Ceiling raised from R6 000 to RIO 000
* Interest capped at 10 X prime lending rate
* Full disclosure of terms of contract
* Confidentiality of borrower information
* Prohibition on taking pin numbers and bank cards
Cooling off period 3 days

CHALLENGES
Legal
* Court case ruled on 11 November 1999
* Pending application for leave to appeal on 29 February 2000

Enforcement
* effect of legal action - delay