Debt Collectors Bill [B102-97]: discussion

JUSTICE PORTFOLIO COMMITTEE
12 August 1998
DEBT COLLECTORS BILL [B102-97]: DISCUSSION

The Chairperson, Mr de Lange, noted that there was uncertainty regarding the functioning of debt collectors.

Mr Gibson (DP) commented about erroneous judgements and referred to a case which his law firm was currently working on. The Chairperson stated that the committee should pass a resolution so that the Department of Trade and Industry should investigate decisions and report back to the committee. He also mentioned that the committee had been receiving many questions on blacklisting and this should be a matter of urgency.

Mr de Lange (Law Advisor) went through the draft amendments:
Clause 3(1) refers to the number of members. The suggestion is that the Board of Debt Collectors should consist of a maximum of ten people. The Chairperson noted that the amendments in subclause 3 were in conjunction with the first amendments. The Minister had the discretion to appoint either two or four debt collectors. The Chairperson added that he saw no particular reason to have huge boards and moved to stay with eight members.

Ms Camerer (NP) said that since this body was not financed by the government, it would not be a great expense to have ten members so why not include the option that the Minister could appoint ten if the need should arise. Ms Ngwane (ANC) agreed with Ms Camerer saying that since there was a discretion, it did not bind the Minister. The Chairperson stated that subclause 2 did away with the discretion for eight members, so the minister had to appoint eight but had a discretion with the other two. The Chairperson accepted that the number should be kept at ten by changing subclause 3 to read: at least two, but not more than 4

Mr Gibson (DP) suggested that since this was a body for debt collectors, they should nominate the members. With regard to nomination, Mr Landers (ANC) said that a balance must be struck between the interests of the debt collector and the interests of the public. The Chairperson stated that there were three options; either delete, leave it as it stood, or compromise which meant consultation with professionals.
Ms Camerer said that there must be a balance. The Minister chose the board. Mr Gibson said the basic principle was consultation. The Chairperson said this would cause the domination of the board by debt collectors. One should not force the Minister. Mr Gibson suggested changing from nomination to appointment after consultation. The Chairperson said that this was a fourth option, however he recommended that they only take two options:
1. At least two and not more than four
2. Two in consultation or after consultation, also keeping the number at not more than ten.

The Chairperson said that there was no need for special qualification for magistrates. Mrs Ngwane asked if the qualification of five years was essential as this created a small pool. Mr de Lange said that no harm would come if a qualification was added. It was up to the Minister which magistrate he appointed. The committee was not at ease with the qualification.

The option of a judge heading the board was raised, however since the board would not be funded by the government it would create a problem. A retired judge would also not solve the problem.

There was no problem with the meetings of the council.

On the question of a fidelity fund the committee felt they were not sufficiently informed on this subject.

On the registration of the board there were checks and balances. On the point of suspending or terminating registration, the committee opted for suspension, rather than termination in order to accommodate the viewpoints of the Chief Justice.

There was no feedback on the remuneration of the board.

Regarding personnel, the committee was in favour of prohibitory provisions, which means that only those people registered as debt collectors can exercise the powers of debt collectors. This included attorneys.

Regarding debt collectors with a bad past (clause 10 ), the committee agreed that it would not be wise to punish people for previous transgressions. They inserted a cut-off period of ten years preceding the enactment of the bill.

The committee also referred to another safeguard in the improper conduct clause. There was confusion surrounding withdrawal of registration. However Mr de Lange stated that the new up-date of the registrar would spell out the terms of withdrawal.

All functioning debt collectors should have a certificate of registration. The fidelity fund will be put in the proviso. An agent cannot act on behalf of a debt collecting company. The improper conduct clause would regulate crimes. The committee was in favour of the suspension of a certificate due to the occurrence of a crime.