The impact of the National Credit Act 34 of 2005 on insolvency proceedings
- Authors: Nel, Imo-Rhesa
- Date: 2014-11-04
- Subjects: South Africa. National Credit Act, 2005 , South Africa. Insolvency Act, 1936 , Credit - Law and legislation - South Africa , Bankruptcy - South Africa
- Type: Thesis
- Identifier: uj:12753 , http://hdl.handle.net/10210/12643
- Description: LL.M. (Commercial Law) , When a debtor runs into financial problems and starts neglecting to satisfy his financial obligations as and when they fall due, there are various statutory procedures or remedies available to both the debtor and his creditor(s). The first and most obvious remedy available to the creditor is to demand the satisfaction of the outstanding claim by the issuance of a letter of demand, followed by a summons and subsequent court proceedings in which the creditor will claim what is due to him. If the debtor still neglects to satisfy the judgement debt, the creditor may proceed to have the judgement enforced by means of a warrant of execution in terms of which the debtor’s property will be attached and be sold at a public auction. Another procedure that is available is for either party to apply for a sequestration order in terms of the Insolvency Act.3 The Insolvency Act provides for two ways in which a debtor’s estate may be sequestrated. These two ways have their own separate requirements. The two ways are: 1. Voluntary surrender; and 2. Compulsory sequestration.
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- Authors: Nel, Imo-Rhesa
- Date: 2014-11-04
- Subjects: South Africa. National Credit Act, 2005 , South Africa. Insolvency Act, 1936 , Credit - Law and legislation - South Africa , Bankruptcy - South Africa
- Type: Thesis
- Identifier: uj:12753 , http://hdl.handle.net/10210/12643
- Description: LL.M. (Commercial Law) , When a debtor runs into financial problems and starts neglecting to satisfy his financial obligations as and when they fall due, there are various statutory procedures or remedies available to both the debtor and his creditor(s). The first and most obvious remedy available to the creditor is to demand the satisfaction of the outstanding claim by the issuance of a letter of demand, followed by a summons and subsequent court proceedings in which the creditor will claim what is due to him. If the debtor still neglects to satisfy the judgement debt, the creditor may proceed to have the judgement enforced by means of a warrant of execution in terms of which the debtor’s property will be attached and be sold at a public auction. Another procedure that is available is for either party to apply for a sequestration order in terms of the Insolvency Act.3 The Insolvency Act provides for two ways in which a debtor’s estate may be sequestrated. These two ways have their own separate requirements. The two ways are: 1. Voluntary surrender; and 2. Compulsory sequestration.
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Reinstatement or revival of a credit agreement in terms of the National Credit Act
- Authors: Louw, P.G.
- Date: 2015
- Subjects: South Africa. National Credit Act, 2005 , Credit - Law and legislation - South Africa , Consumer protection - Law and legislation - South Africa
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/59403 , uj:16526
- Description: Abstract: Please refer to full text to view abstract , LL.M.
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- Authors: Louw, P.G.
- Date: 2015
- Subjects: South Africa. National Credit Act, 2005 , Credit - Law and legislation - South Africa , Consumer protection - Law and legislation - South Africa
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/59403 , uj:16526
- Description: Abstract: Please refer to full text to view abstract , LL.M.
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Has the national credit regulator fulfilled its mandate in promoting a credit market as envisaged in the preamble and purpose of the National Credit Act 34 of 2005
- Authors: Govender, Deshni
- Date: 2015-07-14
- Subjects: South Africa. National Credit Act, 2005
- Type: Thesis
- Identifier: uj:13746 , http://hdl.handle.net/10210/14011
- Description: LL.M. (Commercial Law) , Please refer to full text to view abstract
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- Authors: Govender, Deshni
- Date: 2015-07-14
- Subjects: South Africa. National Credit Act, 2005
- Type: Thesis
- Identifier: uj:13746 , http://hdl.handle.net/10210/14011
- Description: LL.M. (Commercial Law) , Please refer to full text to view abstract
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The charging of interest and the validity of variable interest rate clauses
- Authors: Hunter, Carla Rowlene
- Date: 2015-07-14
- Subjects: South Africa. National Credit Act, 2005 , Banking law - South Africa , Interest - Law and legislation - South Africa , Usury laws - South Africa
- Type: Thesis
- Identifier: uj:13712 , http://hdl.handle.net/10210/13978
- Description: LL.M. (Banking Law) , The charging of interest and the variation thereof throughout the term of a credit agreement has, in a modern South Africa, become the rule rather than the exception. This is so because in a constant evolving economy it will not be viable for large financial institutions to commit themselves to fixed interest rates especially where a credit agreement such as a mortgage agreement may extend over many years. With this comes the question as to the extent of a credit provider’s discretion to vary interest rates and the manner in which it purports to do so. Naturally where the National Credit Act finds application in respect of a credit agreement the provisions thereof relating to interest and the variation thereof will determine whether a clause allowing a credit provider to vary the interest rate unilaterally is valid and enforceable. However in instances where the National Credit Act is not applicable to a certain credit agreement, especially in the case where the consumer is a juristic person, the interest rate levied and the variation thereof will fall to be decided in terms of the common law. The application of the common law in this regard is not without difficulty and there have been many conflicting decisions of our courts in this regard. Whilst the supreme court of appeal has finally decided on the matter of discretionary interest rate clauses it is no doubt that this issue will surface for many years to come. This dissertation explains the comparative positions of interest rate and variable interest rate clauses in terms of the National Credit Act and the common law.
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- Authors: Hunter, Carla Rowlene
- Date: 2015-07-14
- Subjects: South Africa. National Credit Act, 2005 , Banking law - South Africa , Interest - Law and legislation - South Africa , Usury laws - South Africa
- Type: Thesis
- Identifier: uj:13712 , http://hdl.handle.net/10210/13978
- Description: LL.M. (Banking Law) , The charging of interest and the variation thereof throughout the term of a credit agreement has, in a modern South Africa, become the rule rather than the exception. This is so because in a constant evolving economy it will not be viable for large financial institutions to commit themselves to fixed interest rates especially where a credit agreement such as a mortgage agreement may extend over many years. With this comes the question as to the extent of a credit provider’s discretion to vary interest rates and the manner in which it purports to do so. Naturally where the National Credit Act finds application in respect of a credit agreement the provisions thereof relating to interest and the variation thereof will determine whether a clause allowing a credit provider to vary the interest rate unilaterally is valid and enforceable. However in instances where the National Credit Act is not applicable to a certain credit agreement, especially in the case where the consumer is a juristic person, the interest rate levied and the variation thereof will fall to be decided in terms of the common law. The application of the common law in this regard is not without difficulty and there have been many conflicting decisions of our courts in this regard. Whilst the supreme court of appeal has finally decided on the matter of discretionary interest rate clauses it is no doubt that this issue will surface for many years to come. This dissertation explains the comparative positions of interest rate and variable interest rate clauses in terms of the National Credit Act and the common law.
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Statutêre beheer oor onbillike kontraksbedinge in kredietooreenkomste
- Van der Colf, Annemarie Louise
- Authors: Van der Colf, Annemarie Louise
- Date: 2015-08-12
- Subjects: Contracts - South Africa , Liability (Law) - South Africa , Malpractice - South Africa , Credit - Law and legislation - South Africa , Consumer credit - Law and legislation - South Africa
- Type: Thesis
- Identifier: uj:13841 , http://hdl.handle.net/10210/14161
- Description: LL.M. , Please refer to full text to view abstract
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- Authors: Van der Colf, Annemarie Louise
- Date: 2015-08-12
- Subjects: Contracts - South Africa , Liability (Law) - South Africa , Malpractice - South Africa , Credit - Law and legislation - South Africa , Consumer credit - Law and legislation - South Africa
- Type: Thesis
- Identifier: uj:13841 , http://hdl.handle.net/10210/14161
- Description: LL.M. , Please refer to full text to view abstract
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Consumer protection under the National Credit Act : duty of the credit provider to prevent reckless credit and over indebtedness
- Authors: Adekanye, Ayobami Esther
- Date: 2016
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/236372 , uj:24193
- Description: LL.M. , Abstract: Please refer to full text to view abstract
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- Authors: Adekanye, Ayobami Esther
- Date: 2016
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/236372 , uj:24193
- Description: LL.M. , Abstract: Please refer to full text to view abstract
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A banking perspective on the constitutional right to housing with emphasis on mortgage agreements
- Authors: Mangena, Dimakatso
- Date: 2017
- Subjects: Right to housing , Housing - Law and legislation , Mortgage loans - Law and legislation , Banking law
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/236354 , uj:24189
- Description: LL.M. (Banking Law) , Abstract: The purpose of this dissertation is to analyse the impact of section 26 of the Constitution on the sale in execution of mortgaged immovable property by the bank as a judgement creditor. When a debtor defaults on payments due in terms of the mortgage agreement, the bank usually approaches the court for default judgement and an order declaring the property executable. Over the past years obtaining a writ of execution declaring immovable property executable has been disputed as being an infringement of a debtor’s right of access to adequate housing. This dissertation starts off by discussing the importance of the housing clause in the Constitution and the commercial value of mortgage finance. Case law dealing with the constitutionality of the sale in execution of mortgaged immovable property will be discussed and from these case discussions it becomes apparent that mortgage foreclosure law has changed as the bank needs to adhere to certain procedural requirements when proceeding with the enforcement of a mortgage debt. Furthermore an order declaring a debtor’s residential immovable property executable, infringes on the debtor’s constitutional right of access to adequate housing, therefore judicial oversight is required before such an order can be granted. Judicial oversight is necessary to ensure that all the relevant circumstances are considered before a decision is made for a debtor’s home to be sold in execution. It ensures that there is a proportionate relationship between the purpose of the sale of a debtor’s home and the effect that such a sale has on the debtor’s rights. Judicial oversight also ensures that the sale in execution process is not abused and will be used as a last resort. The banks, as mortgagees now have a duty to ensure that all other less drastic means of debt recovery are used before approaching a court of law for an order declaring the debtor’s home executable...
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- Authors: Mangena, Dimakatso
- Date: 2017
- Subjects: Right to housing , Housing - Law and legislation , Mortgage loans - Law and legislation , Banking law
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/236354 , uj:24189
- Description: LL.M. (Banking Law) , Abstract: The purpose of this dissertation is to analyse the impact of section 26 of the Constitution on the sale in execution of mortgaged immovable property by the bank as a judgement creditor. When a debtor defaults on payments due in terms of the mortgage agreement, the bank usually approaches the court for default judgement and an order declaring the property executable. Over the past years obtaining a writ of execution declaring immovable property executable has been disputed as being an infringement of a debtor’s right of access to adequate housing. This dissertation starts off by discussing the importance of the housing clause in the Constitution and the commercial value of mortgage finance. Case law dealing with the constitutionality of the sale in execution of mortgaged immovable property will be discussed and from these case discussions it becomes apparent that mortgage foreclosure law has changed as the bank needs to adhere to certain procedural requirements when proceeding with the enforcement of a mortgage debt. Furthermore an order declaring a debtor’s residential immovable property executable, infringes on the debtor’s constitutional right of access to adequate housing, therefore judicial oversight is required before such an order can be granted. Judicial oversight is necessary to ensure that all the relevant circumstances are considered before a decision is made for a debtor’s home to be sold in execution. It ensures that there is a proportionate relationship between the purpose of the sale of a debtor’s home and the effect that such a sale has on the debtor’s rights. Judicial oversight also ensures that the sale in execution process is not abused and will be used as a last resort. The banks, as mortgagees now have a duty to ensure that all other less drastic means of debt recovery are used before approaching a court of law for an order declaring the debtor’s home executable...
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Consent to jurisdiction – the rationale in considering a court’s jurisdiction in the issuing of emoluments attachment orders
- Authors: Badenhorst, Quinnell Petro
- Date: 2017
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/242892 , uj:25066
- Description: Abstract: In South Africa tens of thousands of ordinary working people in debt are having substantial portions of their wages or salaries deducted based on unlawfully obtained emoluments attachment orders. Unscrupulous credit providers often insert dubious jurisdiction clauses in credit agreements and end up instituting legal proceedings in courts miles away from where consumers work or reside. In practice, debt collection practitioners use section 45 of the Magistrates’ Courts Act to obtain consent to the issuing of emoluments attachment orders from courts which would not have jurisdiction in terms of section 65J(1)(a) of the Magistrates’ Courts Act. This minor dissertation investigates the inevitable impact of the National Credit Act on civil procedures used by credit providers to collect outstanding debts sounding in money; the interpretation of section 45 of the Magistrates’ Courts Act with regard to its application in practices relating to the issuing of emoluments attachment orders by consent; and the rationale in considering a court’s jurisdiction in the issuing of emoluments attachment orders where the underlying agreement is a credit agreement to which the National Credit Act applies. , LL.M. (Banking Law)
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- Authors: Badenhorst, Quinnell Petro
- Date: 2017
- Language: English
- Type: Masters (Thesis)
- Identifier: http://hdl.handle.net/10210/242892 , uj:25066
- Description: Abstract: In South Africa tens of thousands of ordinary working people in debt are having substantial portions of their wages or salaries deducted based on unlawfully obtained emoluments attachment orders. Unscrupulous credit providers often insert dubious jurisdiction clauses in credit agreements and end up instituting legal proceedings in courts miles away from where consumers work or reside. In practice, debt collection practitioners use section 45 of the Magistrates’ Courts Act to obtain consent to the issuing of emoluments attachment orders from courts which would not have jurisdiction in terms of section 65J(1)(a) of the Magistrates’ Courts Act. This minor dissertation investigates the inevitable impact of the National Credit Act on civil procedures used by credit providers to collect outstanding debts sounding in money; the interpretation of section 45 of the Magistrates’ Courts Act with regard to its application in practices relating to the issuing of emoluments attachment orders by consent; and the rationale in considering a court’s jurisdiction in the issuing of emoluments attachment orders where the underlying agreement is a credit agreement to which the National Credit Act applies. , LL.M. (Banking Law)
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