| (1) | A credit agreement or a provision of a credit agreement that, in terms of this Act, is prohibited or may be declared unlawful, is not void unless a court or the Tribunal, as the case may be, declares that agreement or provision to be unlawful. |
[Section 164(1) substituted by section 27 of Notice No. 1081, GG 42649, dated 19 August 2019]
| (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). |
