| (1) |
A referral contemplated in section 86A(6)(e) may be considered by a single member of the Tribunal in the prescribed manner and form, with reference to the documents included in the referral from the National Credit Regulator and any representations contemplated in section 86A(9). |
| (2) |
The Tribunal may, in addition to its other powers in terms of this Act, after having considered the information contemplated in subsection (1) and any other relevant information— |
| (i) |
suspend all of the qualifying credit agreements, in part or in full, for 12 months, which period may be extended for one further period of 12 months, taking into account the factors referred to in subsection (3); and |
| (3) |
When considering the suspension or part suspension of a credit agreement, an alteration or extension of that suspension, or the extinguishing of the whole or a portion of the total of the amounts contemplated in section 101(1) under a qualifying agreement, the Tribunal must take into account relevant factors, which factors may include the following: |
| (a) |
Whether the debt intervention applicant— |
| (i) |
is a disabled person, a minor heading a household, a woman heading a household, or an elderly person; |
| (ii) |
had ever applied for debt review or for an order of sequestration or administration; or |
| (iii) |
ever had any debt extinguished by an order of a court or Tribunal; |
| (b) |
the circumstances of the debt intervention applicant and any act or omission— |
| (ii) |
that resulted in, or contributed to, the fact that the debt intervention applicant does not have sufficient income or assets to allow for the obligations of the debt intervention applicant to be re-arranged during the period contemplated in section 86A(6)(d); or |
| (iii) |
by the debt intervention applicant to secure an income or increase existing income; or |
| (c) |
an act or omission of each affected credit provider— |
| (i) |
when entering into the relevant credit agreement; or |
| (ii) |
during the process contemplated in section 86A and during the proceedings before the Tribunal. |
| (a) |
Section 84 applies to a suspension contemplated in subsection (2)(b)(i). |
| (b) |
Subject to subsection (6), if the period of prescription in respect of a suspended credit agreement would be completed before or on, or within one year after the day on which the suspension ended, the period of prescription shall not be completed before a year has elapsed after the day on which the suspension ended. |
| (a) |
The National Credit Regulator must review the financial circumstances of the debt intervention applicant eight months after an order was granted in terms of subsection (2)(b), and determine whether the debt intervention applicant at that time has sufficient income or assets to allow for the obligations of the debt intervention applicant to be re-arranged during the period contemplated in section 86A(6)(d). |
| (b) |
The National Credit Regulator must, where the debt intervention applicant— |
| (i) |
has sufficient income or assets to allow for the obligations to be re-arranged during the period contemplated in section 86A(6)(d), refer the matter with a recommendation to the Tribunal in the prescribed manner and form for an order contemplated in section 87(1A); or |
| (ii) |
still does not have sufficient income or assets to allow for the obligations to be re-arranged during the period contemplated in section 86A(6)(d), refer the matter to the Tribunal to consider an extension of the period of suspension as contemplated in subsection (2)(b)(i). |
| (c) |
If the Tribunal orders an extension of the suspension, the National Credit Regulator must again conduct the review contemplated in paragraph (a) eight months into the extended suspension period and where the debt intervention applicant at that time— |
| (i) |
has sufficient income or assets to allow for the obligations to be re-arranged during the period contemplated in section 86A(6)(d), refer the matter with a recommendation to the Tribunal in the prescribed manner and form for an order contemplated in section 87(1A); or |
| (ii) |
still does not have sufficient income or assets to allow for the obligations to be re-arranged during the period contemplated in section 86A(6)(d), refer the matter to the Tribunal to consider the extinguishing of the whole or a portion of the total of the amounts contemplated in section 101(1) under each qualifying agreement. |
| (d) |
Section 86A(9) applies with the necessary changes when the National Credit Regulator does a referral contemplated in paragraphs (b)(ii) or (c)(ii). |
| (6) |
The Tribunal may, in addition to its other powers in terms of this Act, after having considered— |
| (a) |
the referral contemplated in subsection (5)(c)(ii); |
| (b) |
whether the debt intervention applicant still does not have sufficient income or assets to allow for the obligations to be re-arranged during the period contemplated in section 86A(6)(d); and |
| (c) |
the factors contemplated in subsection (3), and subject to subsections (7) and (8), declare the total of the amounts contemplated in section 101(1) under the qualifying credit agreements as extinguished. |
| (7) |
The extinguishment contemplated in subsection (6)— |
| (a) |
may be a percentage of the total of the amounts contemplated in section 101(1) under each qualifying agreement; and |
| (b) |
must apply equally to all the qualifying credit agreements. |
| (8) |
When granting an order contemplated in subsection (6) the Tribunal must limit the debt intervention applicant’s right to apply for credit contemplated in section 60 for a minimum period of six months and the Tribunal may limit said right for such further period as the Tribunal deems fair and reasonable— |
| (a) |
taking into account the factors referred to in subsections (3) and (9); and |
| (b) |
subject to the maximum periods referred to in subsection (9). |
| (9) |
The total period of limitation on the debt intervention applicant’s right to apply for credit contemplated in subsection (8)(a) may not exceed 12 months and when determining an appropriate discretionary period, the following factors must also be considered: |
| (a) |
The total unsecured debt; |
| (b) |
the number of credit agreements that were submitted for debt intervention; |
| (c) |
the period of each qualifying credit agreement; and |
| (d) |
the debt intervention applicant’s credit record. |
| (10) |
The National Credit Regulator must notify the debt intervention applicant of any order contemplated in this section, and serve a copy thereof in the prescribed manner and form, on— |
| (a) |
all credit providers that are listed in the application; and |
| (b) |
every registered credit bureau. |
| (11) |
The Tribunal may rescind or change an order for debt intervention if information is placed before the Tribunal showing that the debt intervention applicant who applied for debt intervention was dishonest in his or her application or fails to comply with the conditions of the debt intervention order. |
[Section 87A inserted by section 15 of Notice No. 1081, GG 42649, dated 19 August 2019]
Maintenance Act, 1998
