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Home News & Articles
Monday, 20 November 2017
News and Articles
Summary of the Prescribed Rate of Interest Act Changes

7 March 2016

The Prescribed Rate of Interest Act (Act 55 of 1975) sets the maximum rate of interest that can be charged on mora interest (over-due payment) and is also used in court orders relating to damages claims.

Mora interest applies where payment is due and the rate of interest has not been agreed between the parties. In order for a creditor to become entitled to such interest there has to be demand made for payment or a due date for payment. The creditor is then entitled to charge mora interest from such date as prescribed in the Prescribed Rate of Interest Act.

In the democratic South African regime, the prescribed rate seemed to get stuck at 15,5% per annum for a long period of time, notwithstanding fluctuations in SA Reverse Banks repurchase rate (commonly called the Repo rate), the rate which had previously influenced changes in the prescribed rate of Interest. This rate of 15,5% per annum operated between 1st October 1993 up to 31st July 2014.

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Submission on Debt Collectors Amendment Bill

In October of last year the Department of Justice and Constitutional Development published a draft Debt Collectors Amendment Bill. The main amendment to the Debt Collectors Act was the proposed inclusion of attorneys into the ambit of the Act.

As I had not seen any research or motivation in this regard I wrote to theDeputy Minister of Justice and Constitutional Development, Mr J Jeffery to ask what the motivation was and he was kind enough to take the time out of his busy schedule to reply (a copy of the letter is here).

The Department of Justice and Constitutional Development call for comments on the Bill was extended to the 31 January 2016 and I made the following submission on the Bill. I trust and hope theDepartment of Justice and Constitutional Development will carefully consider the points made in this and the other submissions before proceeding with any proposed amendments.

Brett Bentley - BENTLEY ATTORNEYS

 
Brett Bentley Receives Legal Award

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Brett Bentley, the founder and senior attorney at Bentley Attorney is the 2013 LexisNexis Prize winner for the best article written by an attorney for his article on emoluments attachment orders, "Seperating the Baby and the bathwater - Garnishee Orders", published in the March issue of De Rebus.

Speaking to Nomfundo Manyathi-Jele, News Editor of De Rebus , Brett was asked how he felt about winning the prize? "It was a big surprise, but a great honour to be awarded this prize in a magazine which is the official journal of the attorneys’ profession. I also thank LexisNexus for the kind sponsorship of the prize.

He explained that the article deals with the emotive topic of Emolument Attachment orders (commonly called garnishee orders), which in some instances have been abused and which in turn has resulted in a knee-jerk reaction of calling for their abolition without proper consideration of the alternatives open to judgment creditors. The article proposes a middle ground where Emolument Attachment orders are maintained but the laws amended to afford debtors greater protection.

The prize comfirms Bentley Attorneys position as one of the leading experts in South Africa in the field of debt collections and credit law. Brett Bentley is also on the SA Law Society's expert panel for the subject of Debt Collections and runs the SA Law Society's LEAD seminars, which update and educate attorneys in the area of debt collections.

 
Private NCA Bill Flawed and then Floored

Mario Oriano-Ambrosini MP , fought all the way to the Constitutional Court for his right to bring a Private Member's Bill - the National Credit Act Amendment Bill. This in itself was an importantdevelopmentin the administrative law of the country.

Unfortunatelythe bill that was so hard fought for itself leaves a lot to be desired.

The Bill was ultimately rejected by parliament and Brett Bentley submissions to parliament on the bill were:

"It is respectfully submitted that the proposed changes to the National Credit Act No 34 of 2007 ("the Act) contained in the National Credit Act Amendment Bill ("the Bill"):

1. Are ad hoc and fail to address the larger problems surrounding the deficiencies of the Act, particularly those relating to debt counseling;

2. Are grammatically vague;

3. Fail to fully grasp the purpose of the original Act;

4. Fail to address all the changes necessary to achieve their objectives;

5. Could potentially cause further confusion and "unintended consequences" for the Act

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Seperating the Baby and the bathwater - Garnishee Orders

The original version of Brett Bentley cover article appearing in the March 2013 De Rebus, the official SA Attorneys journal.

Background

The term "garnishee order" is commonly but mistakenly applied to an emoluments attachment order ("EAO").

An EAO is granted in terms of Section 65J of the Magistrates' Courts Act ("MCA"), ordering an employer (referred to as a garnishee, hence the confusion) to make deductions from a debtor's salary or wages and pay this across to the creditor or it's attorneys. A Garnishee order is in terms of Section 72 of the MCA, and authorises a creditor to attach any debt owed, or which will become due, to the debtor.

On 1 November 2012 a joint statement was released by the Minister of Finance and the Banking Association of South Africa's (BASA's) chairperson, which stated that as a result of, amongst other things, "Abuse of debt and garnishee orders, and of direct pay roll deductions" the parties had agreed to (amongst other things) :

"- BASA members commit not to use garnishee orders against credit defaulters, as they believe the use of such orders for credit is inappropriate.

- BASA and the National Treasury will promote and support enforcement initiatives against credit providers that issue pre-signed garnishee orders. The National Treasury will also engage with the Department of Justice about the abuse of garnishee orders and suggest that their use be restricted to maintenance orders."

(The full statement is at http://www.treasury.gov.za/comm_media/press/2012/2012110101.pdf)

Obviously the statement means to refer to EAOs, but it is concerning that the Treasury is proposing the virtual abolition of a lawful debt collection process without apparently so much as having read the relevant provisions of the MCA or sought legal advice on the issue and the implications of the proposal.

Notwithstanding this, the concerns surrounding the abuses in the debt collection process, particularly relating to unsecured loans, are real and need to be addressed.

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