The Appellate Division has spoken - Sequestration Proceedings do not Qualify as Proceedings to Enforce a Credit Agreement under The National Credit Act 34 of 2005: Naidoo v ABSA Bank 2010 4 SA 597 (SCA)
Abstract
This case note aims to analyse the decision of the Supreme Court of Appeal in
Naidoo v ABSA Bank 2010 4 SA 597 (SCA) and to spark some debate as to whether
being under debt review in terms of the National Credit Act (NCA) should bar
sequestration proceedings in the form of an application for the compulsory
sequestration of a consumer’s estate. This decision held that a credit provider does
not need to comply with the procedure provided for in section 129(1) of the NCA
before instituting sequestration proceedings against a debtor, as such proceedings
are not proceedings to enforce a credit agreement. The main issues discussed in
this article are whether the court was correct in its interpretation of the relevant
provisions of the NCA and whether this decision that allows a creditor to sequestrate
a debtor who is attempting to meet his/her obligations under debt review, without
informing him/her, is consistent with the principle urging consumers to satisfy all of
their financial obligations under the NCA.
It is submitted by the author that the court was correct in its interpretation of the
relevant provisions of the NCA, but may have overlooked how this decision may
impact the principle of satisfaction by the consumer of all of his/her financial
obligations. It is suggested by the author that amendments be made to force the
creditor to give a section 129 notice to the debtor before seeking sequestration of
his/her estate. The author also suggests that once debt restructuring has been granted, credit providers should not be allowed to proceed with sequestration
proceedings against the debtor.
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