| (a) |
at the time the agreement was made the consumer was an unemancipated minor unassisted by a guardian, or was subject to— |
| (i) |
an order of a competent court holding that person to be mentally unfit; or |
| (ii) |
an administration order referred to in section 74(1) of the Magistrates’ Courts Act, and the administrator concerned did not consent to the agreement, |
and the credit provider knew, or could reasonably have determined, that the consumer was the subject of such an order;
| (b) |
the agreement results from an offer prohibited in terms of section 74(1); |
| (c) |
it is a supplementary agreement or document prohibited by section 91(a); |
| (d) |
at the time the agreement was made, the credit provider was unregistered and this Act requires that credit provider to be registered; or |
| (e) |
the credit provider was subject to a notice by the National Credit Regulator or a provincial credit regulator requiring the credit provider— |
| (i) |
to stop offering, making available or extending credit under any credit agreement, or agreeing to do any of those things; or |
| (ii) |
to stop offering, making available or extending credit under the particular form of credit agreement used by the credit provider, |
whether or not this Act requires that credit provider to be registered, and no further appeal or review is available in respect of that notice.
| (3) |
Subsection (2)(a) does not apply to a credit agreement if the consumer, or any person acting on behalf of the consumer, directly or indirectly, by an act or omission— |
| (a) |
induced the credit provider to believe that the consumer had the legal capacity to contract; or |
| (b) |
attempted to obscure or suppress the fact that the consumer was subject to an order contemplated in that paragraph. |
| (4) |
Subsection (2)(d) does not apply to a credit provider if— |
| (a) |
at the time the credit agreement was made, or within 30 days after that time, the credit provider had applied for registration in terms of section 40, and was awaiting a determination of that application; or |
| (b) |
at the time the credit agreement was made, the credit provider held a valid clearance certificate issued by the National Credit Regulator in terms of section 42(3)(b). |
| (5) |
If a credit agreement is unlawful in terms of this section, despite any other legislation or any provision of an agreement to the contrary, a court or the Tribunal, as the case may be, must make a just and equitable order including but not limited to an order that— |
[Words preceding subsection 89(5)(a) substituted by section 17 of Notice No. 1081, GG 42649, dated 19 August 2019]
| (a) |
the credit agreement is void as from the date the agreement was entered into; |
| (b) |
[Subsection (5)(b) deleted by section 27(b) of Act No. 19 of 2014] |
| (c) |
[Subsection (5)(c) deleted by section 27(b) of Act No. 19 of 2014] |
Basic Conditions of Employment Act, 1997
