| (1) |
Subject to subsection (2), a credit provider may approach the court for an order to enforce a credit agreement only if, at that time, the consumer is in default and has been in default under that credit agreement for at least 20 business days and— |
| (a) |
at least 10 business days have elapsed since the credit provider delivered a notice to the consumer as contemplated in section 86(10), or section 129(1), as the case may be; |
[Subsection (1)(a) substituted by section 30 of Act No. 19 of 2014]
| (b) |
in the case of a notice contemplated in section 129(1), the consumer has— |
| (i) |
not responded to that notice; or |
| (ii) |
responded to the notice by rejecting the credit provider’s proposals; and |
| (2) |
In addition to the circumstances contemplated in subsection (1), in the case of an instalment agreement, secured loan, or lease, a credit provider may approach the court for an order enforcing the remaining obligations of a consumer under a credit agreement at any time if— |
| (a) |
all relevant property has been sold pursuant to— |
| (i) |
an attachment order; or |
| (ii) |
surrender of property in terms of section 127; and |
| (b) |
the net proceeds of sale were insufficient to discharge all the consumer’s financial obligations under the agreement. |
| (3) |
Despite any provision of law or contract to the contrary, in any proceedings commenced in a court in respect of a credit agreement to which this Act applies, the court may determine the matter only if the court is satisfied that— |
| (a) |
in the case of proceedings to which sections 127, 129 or 131 apply, the procedures required by those sections have been complied with; |
| (b) |
there is no matter arising under that credit agreement, and pending before the Tribunal, that could result in an order affecting the issues to be determined by the court; and |
| (c) |
that the credit provider has not approached the court— |
| (ii) |
despite the consumer having— |
| (aa) |
surrendered property to the credit provider, and before that property has been sold; |
| (cc) |
complied with an agreed plan as contemplated in section 129(1)(a); or |
| (dd) |
brought the payments under the credit agreement up to date, as contemplated in section 129(1)(a). |
| (4) |
In any proceedings contemplated in this section, if the court determines that— |
| (a) |
the credit agreement was reckless as described in section 80, the court must make an order contemplated in section 83; |
| (b) |
the credit provider has not complied with the relevant provisions of this Act, as contemplated in subsection (3)(a), or has approached the court in circumstances contemplated in subsection (3)(c) the court must— |
| (i) |
adjourn the matter before it; and |
| (ii) |
make an appropriate order setting out the steps the credit provider must complete before the matter may be resumed; |
| (c) |
the credit agreement is subject to a pending debt review in terms of Part D of Chapter 4, the court may— |
| (i) |
adjourn the matter, pending a final determination of the debt review proceedings; |
| (ii) |
order the debt counsellor to report directly to the court, and thereafter make an order contemplated in section 85(b); or |
| (iii) |
if the credit agreement is the only credit agreement to which the consumer is a party, order the debt counsellor to discontinue the debt review proceedings, and make an order contemplated in section 85(b); |
| (d) |
there is a matter pending before the Tribunal, as contemplated in subsection (3)(b), the court may— |
| (i) |
adjourn the matter before it, pending a determination of the proceedings before the Tribunal; or |
| (ii) |
order the Tribunal to adjourn the proceedings before it, and refer the matter to the court for determination; or |
| (e) |
the credit agreement is either suspended or subject to a debt re-arrangement order or agreement, and the consumer has complied with that order or agreement, the court must dismiss the matter. |
| (5) |
In any proceedings contemplated in this section, if it is shown that the credit agreement was subject to an order contemplated in section 87A(6) and the Tribunal ordered that the whole of the debt underlying that credit agreement was extinguished, the court must dismiss the matter. |
[Section 130(5) inserted by section 21 of Notice No. 1081, GG 42649, dated 19 August 2019]
Housing Development Agency Act, 2008
