National Credit Act, 2005 (Act No. 34 of 2005)

Chapter 4 : Consumer Credit Policy

Purchase

[Section 83 heading substituted by section 25(a) of Act No. 19 of 2014]

(1)	Despite any provision of law or agreement to the contrary, in any court or Tribunal proceedings in which a credit agreement is being considered, the court or Tribunal, as the case may be, may declare that the credit agreement is reckless, as determined in accordance with this Part.

[Subsection (1) substituted by section 25(b) of Act No. 19 of 2014]

(2)	If a court or Tribunal declares that a credit agreement is reckless in terms of section 80(1)(a) or 80(1)(b)(i), the court or Tribunal, as the case may be, may make an order—

(a)	setting aside all or part of the consumer’s rights and obligations under that agreement, as the court determines just and reasonable in the circumstances; or

(b)	suspending the force and effect of that credit agreement in accordance with subsection (3)(b)(i).

[Subsection (2) substituted by section 25(c) of Act No. 19 of 2014]

(3)	If a court or Tribunal, as the case may be, declares that a credit agreement is reckless in terms of section 80(1)(b)(ii), the court or Tribunal, as the case may be—

[Words preceding subsection (3)(a) substituted by section 25(d) of Act No. 19 of 2014]

(a)	must further consider whether the consumer is over-indebted at the time of those proceedings; and

[Subsection (3)(a) substituted by section 25(e) of Act No. 19 of 2014]

(b)	if the court or Tribunal, as the case may be, concludes that the consumer is over-indebted, the said court or Tribunal may make an order—

[Words preceding subsection (3)(b)(i) substituted by section 25(f) of Act No. 19 of 2014]

(i)	suspending the force and effect of that credit agreement until a date determined by the Court when making the order of suspension; and

(ii)	restructuring the consumer’s obligations under any other credit agreements, in accordance with section 87.

(4)	Before making an order in terms of subsection (3), the court or Tribunal, as the case may be, must consider—

[Words preceding subsection (4)(a) substituted by section 25(g) of Act No. 19 of 2014]

(a)	the consumer’s current means and ability to pay the consumer’s current financial obligations that existed at the time the agreement was made; and

(b)	the expected date when any such obligation under a credit agreement will be fully satisfied, assuming the consumer makes all required payments in accordance with any proposed order.