This article outlines the requirements and criteria individuals must meet to qualify for debt counselling in South Africa.
The National Credit Act (NCA) provides a framework for consumers facing financial difficulties through a process known as debt counselling, as outlined in Sections 86 and 87. This process allows eligible individuals to apply for debt review, potentially leading to a debt restructuring plan presented to and, if accepted, made an order of the Magistrate’s Court.
A fundamental principle underlying debt counselling is the consumer’s ability to resume debt repayments within a reasonable timeframe. This assessment includes consideration of future income prospects, such as the likelihood of re-employment following retrenchment. This article will examine the practical considerations evaluated at the point of application for debt counselling, providing clarity on the eligibility criteria and the factors that contribute to a successful debt rehabilitation process.
- If the consumer has no income or no prospect of income in the future the debt review application cannot be accepted;
- The marital status of the consumer should be verified asset out below before the application is accepted;
- Where the Debt Counsellor is aware of previous legal action stipulated in Section 86(2) of the NCA only that particular debt cannot be included in the application. This means that the balance of the debt should be included in the application;
- The Debt Counsellor must assess the situation and submit his or her recommendation to a Magistrate Court who must conduct a hearing as per Section 87 of the NCA. The matter should be referred to a Magistrate Court before the expiry of the 60 days in order to protect the client.
- Any credit life insurance which makes provision for retrenchment cover should be considered as well and could well be a remedy to reduce debt at a future point in time. In most cases it will be difficult to determine if full retrenchment cover is available at point of application. Debt Counsellors are encouraged to check for relevant cover and to verify this with Credit Providers to determine the impact if possible in the debt situation of the consumer.
- It is also recommended that the Debt Counsellor check for the availability of assets that can be used to redeem debt.
To ensure that not all debt is being passed to one of the parties whilst the couple continues to live well off a substantial surplus from the other partner. Include all income
When a consumer applies for Debt Counselling all the consumer’s income has to be included. This is defined in Section 78(3) as follows:
“In this part, “financial means, prospects and obligations’, with respect to a consumer
or prospective consumer, includes:
a) income, or any right to receive income, regardless of the source, frequency or regularity of that income, other than income that the consumer or prospective consumer receives, has a right to receive, or holds in trust for another person;
b) the financial means, prospects and obligation of any other adult person within the consumer’s immediate family or household, to the extent that the consumer, or prospective consumer, and that other person customarily:-
c) if the consumer has or had a commercial purpose for applying for or entering into a particular credit agreement, the reasonably estimated future revenue flow from that business purpose.”
It is recommended that Debt Counsellors obtain a full picture of the total income of the household. To achieve this it is important to understand who is part of the household and what their income is. This will assist the Debt Counsellor to determine the proportional responsibility of household expenses.
The abovementioned can be achieved by including the appropriate contributions to household income or by reducing the applicant’s contribution to household expenses in proportion to household income. Full disclosure of household income is recommended in the debt review process.
In some cases a consumer could not necessarily be over-indebted but could be experiencing or is likely to experience difficulty in satisfying all the monthly obligations under credit agreements in a timely manner.
This is often the case when one of the following events occurs:
When one of the abovementioned happens the consumer could approach a Debt Counsellor for assistance in terms of Section 86(7)(b) of the NCA. When approached a Debt Counsellor should conduct a full financial assessment of the financial position of the consumer.
If the finding is in line with section 86(7)(b), that the consumer is not over-indebted but experiencing or likely to experience difficulty to meet all his or her obligations under his or her credit agreements, the Debt Counsellor should use this assessment as a base to construct repayment proposals to Credit Providers for voluntarily consideration.
If accepted by all Credit Providers a consent order can be obtained and if not the matter will be referred to a Magistrate Court for a decision.
Debt Counsellors should consider a set date for the proposed review of the consumer’s financial position and include this in the proposal to Court. The motivation for this is that the consumer should be encouraged to find employment within a reasonable period which should not exceed 3 to 4 months.
If no employment can be found, a general guideline is that the consumer’s debt review application cannot be supported going forward. If the consumer has been able to find employment, a new Affordability Assessment should be done by the Debt Counsellor.
The consumer should be encouraged to complete a list of assets on application for Debt Counselling (Form 16). The following information is important in this regard:
In the case where the consumer has a luxury home or vehicle, Debt Counsellors should investigate the possibility to sell these assets and to downgrade. This is not always possible for the following reasons:
Credit Providers are of the view that new loans to finance for example a more affordable house or replacement of a vehicle (to scale down or in case of a loss through theft or accident) fall outside the definition of Consolidation Loans in terms of Section 88(1) and could be classified as reckless lending and accordingly are unwilling to provide such loans.
It is recommended that the Debt Counsellors confirm to Credit Providers in the repayment proposals that he or she has explored the possibility of selling assets to reduce debt and where if not, why this has not happened.
It is also recommended that the Debt Counsellor include a confirmation in the affidavit submitted to Court that he or she has assessed the list of assets provided by the consumer and that unencumbered assets that could be sold have been, alternatively an explanation why they have not.
Where an asset has been financed by the Credit Provider, it is often a requirement that a comprehensive short term insurance is maintained. In practice many consumers have cancelled their short term insurance long before they have applied for Debt Counselling notwithstanding the contractual obligation to maintain a short term insurance policy to protect the assets financed.
The absence of such a policy not only increased the risk for the Credit Provider, but it increases the risk for the consumer who has applied for Debt Counselling. Should the consumer be involved in an accident or if the vehicle is stolen and not covered it places the over-indebted consumer in a worse financial position.
It is therefore in the interest of the consumer that insurance of assets be examined during the Affordability Assessment. If Debt Counsellors ensure that insurance is in place this could improve the probability that the debt review will be successful and this will ensure that the consumer complies with the terms of the agreement with Credit Providers.
Debt Counsellors should verify the need for insurance on debt included in Debt Counselling. This is normally a contractual obligation. The premium for insurance should be included in the proposed budget of the consumer and confirmation of insurance should be forwarded to the relevant Credit Provider. In addition, it is recommended that the amount required for such insurance should be collected by the appointed Payment Distribution Agency and paid over to the Credit Providers or Service Providers.
Debt Counsellors are required to monitor monthly payments of these amounts. Any increases of the amount required for this insurance should be catered for and should be included in the annual review conducted by the Debt Counsellor.
Where the consumer who applies for Debt Counselling has a joint bond with another consumer the following is important:
In many cases only one party to the joint bond applies for Debt Counselling and where the bond repayments falls in arrears, the Credit Provider could elect to enforce the agreement against the party who has not applied for Debt Counselling, despite the fact that the agreement is subject to Debt Counselling. Until there is case law on this issue or an agreement can be reached with Credit Providers on this issue, the following guidelines can be of assistance:
Short term insurance is normally a contractual obligation in the agreement entered into by the consumer and the Credit Provider to insure the asset against damage, theft or loss.
The Amendments of the NCA extend the power of the NCT to consider and pronounce reckless agreements. This amendment may result in an amendment of the reckless lending process in this annexure. A review will be conducted as soon as detailed process information is available.
Debt Counsellors are obliged and encouraged, as part of the financial assessment, to identify reckless lending by Credit Providers and if such finding is made issue a proposal to the Magistrate Court to make an order, as per Section 86(7)(c)(i) of the NCA, that one or more of the consumer’s credit agreements be declared reckless.
The criteria to determine whether a credit agreement is reckless or not is set out in Section 80 of the NCA.
Section 80(2) provides that:
“When a determination is to be made whether a credit agreement is reckless or not, the person making that determination must apply the criteria set out in subsection (1) as they existed at the time that the agreement was made, and without regard for the ability of the consumer to
- Meet the obligations under the credit agreements; or Understand or appreciate the risks, costs and obligations under the proposed credit agreement, at the time that the determination is being made” This means that the time that the credit agreement was entered into is crucial and not when the determination is actually made.
Debt Counsellors are encouraged to take the Affordability Assessment Regulations into account when implemented and use the process as set out in Annexure B to identify possible reckless lending. This process should be seen as an early indicator process to identify reckless lending.
To make the determination the Debt Counsellor has to reconstruct the circumstances when the debt was entered into between the consumer and the Credit Provider.
To do this a Debt Counsellor will need at least the following:
The consumer should normally be able to supply items a) and b) Items c) and d) should be requested in writing from the Credit Provider who should make this information available within 20 business days.
This information should be used to determine whether a proper assessment was conducted and if the consumer fully and truthfully answered all requests for information made by the Credit Provider as part of the assessment and/or if the consumer failed to understand the risks, costs or obligations under the credit agreement or became over-indebted the moment he or she entered into that specific credit agreement.
Where Credit Providers fail to provide the information on request within 20 business days, the Debt Counsellor should use the available information and refer the matter to a Court for a hearing. The Debt Counsellor is advised to inform the Court of the attempts to obtain detailed information with a recommendation that the Magistrate review the available information to make a finding on the reckless lending recommendation from the Debt Counsellor.
The abovementioned assessment should indicate if reckless lending was present Should the Debt Counsellor be unable to make a determination because of the Credit Provider being unwilling to provide the required information and where reckless lending is evident, the Debt Counsellor should submit his recommendation to a Magistrate Court.
Consumers who apply for debt review are often reluctant to reduce their lifestyle resulting in a small unrealistic amount being available for debt repayment. The level of over indebtedness (after reckless lending has been ruled out) also has an effect on the amount available for debt repayments. Where this is the case the proposed repayments offered are very low and proposed term is unrealistically long.
Important Note: Debt Counsellors should use this guideline to determine the minimum available amount for debt repayment. Consumers should be encouraged by Debt Counsellors to use a higher percentage of after tax income or household income to repay debt.
The proposed guidelines in the table below take into account that the spending patterns of consumers are influenced by the level of own income, household income, dependents and essential expenses. The percentages that are tabulated below are indicative only and are based on the After Tax Income or household income specified in range bands. The aim of this guideline is for the Debt Counsellors to use this as a guideline to determine the minimum level of nett income that is available for debt repayments.
This spending guideline is based on after tax income, before any other deductions, of the applicant(s) subject to Note 1, 2 and 3 below for specific application to the consumer’s position at that point in time.
After Tax Income | Percentage of household income to be made available as a minimum for repayment of debt |
R 0 – R 2 000 | 23% to 45% |
R 2 001 – R 5 000 | 32% to 47% |
R 5001 – R 10 000 | 35% to 49% |
R 10 001 – R 20 000 | 37% to 51% |
R 20 001 – R 40 000 | 40% to 53% |
R 40 001 – R 60 000 | 45% to 55% |
R 60 0001 + | 45% to 58% |
Notes:
Once the income of the consumer has been determined it is time to review spending items that can be reduced. The purpose of this process is to ensure that a sustainable budget has been created for the consumer. This means the inclusion of essential expenditure and the reduction or elimination of luxury expenses. This will require the consumer to implement certain sacrifices to ensure that the budget of the consumer is realistic, sustainable and defendable in a Magistrate Court.
It is important to note that the Debt Counsellor is fulfilling a statutory obligation and for this reason care should be taken to ensure that the Debt Counsellor has applied his or her mind to the financial assessment of the consumer’s financial position.
Debt Counsellors could be requested by a Court to substantiate the Affordability Assessment and the determination of the amount available for debt repayment. Debt Counsellors should be able to explain and defend their financial assessment.
It is however important to note that the spending patterns of consumers will in most cases be different. The reason for this is that consumers have different needs and requirements. For instance some consumers will spend more on the education of their children but will spend less on food. Others might decide to spend money on their DSTV but decrease spending on a different item.
What is important to Debt Counsellors is to ensure that overall expenditure is reasonable and defendable. Many Credit Providers and Magistrates will have different interpretations of individual items. For instance some might argue that smoking should be stopped while others might consider even reasonable telephone expenditure as unreasonable.
In the final analysis, the proposed budget can only be constructed if all expenditure is assessed and the final outcome is reasonable. To assist Debt Counsellors the following guidelines should be used in the analysis of essential non-essential and luxurious expenditure.
Essential expenses are those expenses that a consumer has little or no control over. They are necessary to conduct daily life. Expenses falling into this category are:
Debt Counsellors could ask the following questions:
a) Is it possible to obtain cheaper rented accommodation?
b) Can affordable accommodation be found closer to work to reduce rental expenses as well as fuel costs? The cost of moving has to be taken into consideration.
The Debt Counsellor must make sure that all essential expenses are, in the first instance essential and in the second instance reasonable.
Non essential expense are those expenses paid by consumers that are not absolutely necessary, but that are none the less an important part of daily existence.
These will include:
As a minimum requirement this does not mean that Debt Counsellors cannot allow non essential expenses. If used in moderation some of the items could be included in the budget on condition that the total spending on essential and non-essential items is reasonable and defendable.
Luxurious items are those items that the consumer does not need and which the average consumer applying for Debt Counselling should not have.
They include:
Understanding the ins and outs of debt counselling in South Africa is crucial. This article covered the basics, but if you’re feeling overwhelmed or need more clarity, don’t hesitate to get in touch with us. We’re here to help.
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