National Credit Act, 2005 (Act No. 34 of 2005)Chapter 4 : Consumer Credit PolicyPart A : Consumer Rights61. Protection against discrimination in respect of credit |
| (1) | Relative to the treatment of any other consumer or prospective consumer, a credit provider must not unfairly discriminate directly or indirectly against any natural person, juristic person or association of persons on one or more grounds set out in section 9(3) of the Constitution, or one or more grounds set out in Chapter 2 of the Promotion of Equality and Prevention of Unfair Discrimination Act, when— |
| (a) | assessing the ability of the person to meet the obligations of a proposed credit agreement; |
| (b) | deciding whether to refuse an application to enter into a credit agreement, or to offer or enter into a credit agreement; |
| (c) | determining any aspect of the cost of a credit agreement to the consumer; |
| (d) | proposing or agreeing the terms and conditions of a credit agreement; |
| (e) | assessing or requiring compliance by the person with the terms of a credit agreement; |
| (f) | exercising any right of the credit provider under a credit agreement, this Act or applicable provincial legislation; |
| (g) | determining whether to continue, enforce, seek judgment in respect of, or terminate a credit agreement; or |
| (h) | determining whether to report, or reporting, any credit information or record. |
| (2) | Subsection (1), read with the changes required by the context, applies equally to— |
| (a) | a credit bureau, when offering its services to the public, and when accepting, compiling, analysing, modifying or reporting any credit information or record; |
| (b) | the ombud with jurisdiction or alternative dispute resolution agent, when offering or holding out the ability to resolve a dispute or assist in the resolution of a dispute between a credit provider and a consumer in terms of this Act, or in accepting or refusing a referral of such a matter, or in delivering any such service to credit providers and consumers; |
| (c) | a debt counsellor when offering or holding out the ability to serve as a debt counsellor in terms of this Act, or in accepting or refusing a referral of such a matter, or in delivering any such service to consumers; and |
| (d) | an employer or trade union, when acting in terms of section 75(3) or (4). |
| (3) | Subsections (1) and (2) apply in respect of a consumer or prospective consumer that is an association or juristic person to prohibit unfair discrimination against that association or juristic person based on the characteristics of any natural person who is a member, associate, owner, manager, employee, client or customer of that association or juristic person. |
| (4) | It is not discrimination on the basis of age to— |
| (a) | refuse to receive or consider an application for credit from an unemancipated minor; or |
| (b) | refuse to offer an unlawful credit agreement to, or enter into an unlawful credit agreement with, an unemancipated minor. |
| (5) | A credit provider may determine for itself any scoring or other evaluative mechanism or model to be used in managing, underwriting and pricing credit risk, provided that any such mechanism or model is not founded or structured upon a statistical or other analysis in which the basis of risk categorisation, differentiation or assessment is a ground of unfair discrimination prohibited in section 9(3) of the Constitution. |
| (6) | In respect of an alleged contravention of this section, any person contemplated in section 20(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act, may either— |
| (a) | institute proceedings before an equality court, in terms of Chapter 4 of the Promotion of Equality and Prevention of Unfair Discrimination Act; or |
| (b) | make a complaint to the National Credit Regulator in terms of section 136, which must refer the complaint to the equality court, if the complaint appears to be valid. |
| (7) | A court may draw an inference that a credit provider has discriminated unfairly against a consumer or prospective consumer if that credit provider— |
| (a) | knew or reasonably could have known that the consumer or prospective consumer, or a natural person contemplated in subsection (3), was a historically disadvantaged person; |
| (b) | has made a decision contemplated in section 62(1)(a) through (d), with respect to that consumer or prospective consumer; and |
| (c) | has refused, or failed without reasonable cause, to respond to a request made in terms of section 62 in respect of that decision. |