National Credit Act, 2005 (Act No. 34 of 2005)
Chapter 8 : Enforcement of Act
Part C : Miscellaneous matters

163. Agents

1)        A credit provider must ensure that its employees or agents are trained in respect of the matters to which this Act applies.

2)        If a credit provider makes use of agents for solicitation, completion or conclusion of credit agreements-

a)        the agents must show an identification card in the prescribed manner and form to any person with whom the agent interacts in the solicitation, completion or conclusion of credit agreements; and

b)        the credit provider must maintain a register in the prescribed manner and form of all agents.

3)        If a person who is not an employee or agent of a credit provider, solicits, completes or concludes a credit agreement for or on behalf of a credit provider or a consumer-

a)        that person must be identified by name and identity number in the credit agreement;

b)        that person must disclose to the consumer the amount of any fee or commission that will be paid if the agreement is concluded; and

c)        any fee or commission to be charged to the consumer-

i)          must not exceed the prescribed amount; and

ii)         may be paid to that person only if the agreement is concluded.

164. Civil actions and jurisdiction

1)        Nothing in this Act renders void a credit agreement or a provision of a credit agreement that, in terms of this Act, is prohibited or may be declared unlawful unless a court declares that agreement or provision to be unlawful.

2)        In any action in a civil court, other than a High Court, if a person raises an issue concerning this Act or a credit agreement which the Tribunal-

a)        has previously considered and determined that court-

i)          must not consider the merits of that issue; and

ii)         must apply the determination of the Tribunal with respect to the issue; or

b)        has not previously determined, that court may-

i)          consider the merits of that issue, or

ii)         refer the matter to the Tribunal for consideration and determination.

3)        A person who has suffered loss or damage as a result of prohibited conduct or dereliction of required conduct-

a)        may not commence an action in a civil court for the assessment of the amount or awarding of damages if that person has consented to an award of damages in a consent order; or

b)        if entitled to commence an action referred to in paragraph (a), when instituting proceedings, must file with the registrar or clerk of the court a notice from the Chairperson of the Tribunal in the prescribed form-

i)          certifying that the conduct constituting the basis for the action has been found to be a prohibited or required conduct in terms of this Act;

ii)         stating the date of the Tribunal’s finding; and

iii)        setting out the relevant section of this Act in terms of which the Tribunal made its finding.

4)        A certificate referred to in subsection (3)(b) is conclusive proof of its contents, and is binding on a civil court.

5)        An appeal or application for review against an order made by the Tribunal in terms of section 148 suspends any right to commence an action in a civil court with respect to the same matter.

6)        A person’s right to damages arising out of any prohibited or required conduct comes into existence –

a)        on the date that the Tribunal makes a determination in respect of a matter that affects that person; or

b)        in the case of an appeal, on the date that the appeal process in respect of that matter is concluded.

7)        For the purposes of section 2A(2)(a) of the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), interest on a debt in relation to a claim for damages in terms of this Act will commence on the date of issue of the certificate referred to in subsection (3)(b).

165. Variation of order

The Tribunal, acting of its own accord or on application by a person affected by a decision or order, may vary or rescind its decision or order-

a)        erroneously sought or granted in the absence of a party affected by it;

b)        in which there is ambiguity, or an obvious error or omission, but only to the extent of correcting that ambiguity, error or omission; or

c)        made or granted as a result of a mistake common to all the parties to the proceedings.

166. Limitations of bringing action

1)        A complaint in terms of this Act may not be referred or made to the Tribunal or to a consumer court more than three years after-

a)        the act or omission that is the cause of the complaint; or

b)        in the case of a course of conduct or continuing practice, the date that the conduct or practice ceased.

2)        A complaint in terms of this Act may not be referred to the Tribunal or to a consumer court in terms of this Act against any person that is, or has been, a respondent in proceedings under another section of this Act relating substantially to the same conduct.

167. Standard of proof

In any proceedings before the Tribunal, or before a consumer court, in terms of this Act the standard of proof is on a balance of probabilities.

168. Serving documents

Unless otherwise provided in this Act, a notice, order or other document that, in terms of this Act, must be served on a person will have been properly served when it has been either-

a)        delivered to that person; or

b)        sent by registered mail to that person’s last known address.

169. Proof of facts

 1)        In any proceedings in any court for the recovery of debt in terms of a credit agreement, if the consumer-

a)        alleges that the cost of credit claimed by, or made to, the credit provider exceeds the maximum permitted in terms of this Act; and

b)        requests that the credit provider be called as a witness to prove the amount of debt claimed to be owing,

the court must not give judgment until it has afforded an opportunity for the consumer to examine the credit provider in relation to the debt claimed to be owing, unless it appears to the court that the consumer’s allegation is prima facie without foundation, or that examination of the credit provider is impracticable.

2)        In any criminal proceedings in terms of this Act-

a)        if it is proved that a false statement, entry or record or false information appears in or on a book, document, plan, drawing or computer storage medium, the person who kept that item must be presumed to have made the statement, entry, record or information unless the contrary is proved; and

b)        an order certified by the Chairperson of the Tribunal is conclusive proof of the contents of the order of the Tribunal.

3)        A statement, entry or record, or information, in or on any book, document, plan, drawing or computer storage medium is admissible in evidence as an admission of the facts in or on it by the person who appears to have made, entered, recorded or stored it unless it is proved that that person did not make, enter, record or store it.

170. Credit provider to keep records

A credit provider must maintain records of all applications for credit, credit agreements and credit accounts in the prescribed manner and form and for the prescribed time.