National Credit Act, 2005 (Act No. 34 of 2005)SchedulesSchedule 3 : Transitional provisions |
| 1. | Definitions |
| (1) | In this Schedule— |
"effective date" means the date on which this Act, or any relevant provision of it, came into operation in terms of section 173;
"pre-existing credit agreement" means an agreement that was made before the effective date, and to which this Act applies; and
"previous Act" means a law repealed by section 172.
(2) A reference in this Schedule—
(a) to a section by number is a reference to the corresponding section of—
(i) the previous Act, if the number is followed by the words "of the previous Act"; or
(ii) this Act, in any other case;
(b) to an item or a subitem by number is a reference to the corresponding item or subitem of this Schedule.
| 2. | Delayed application of required registration |
Despite section 40, the requirement in terms of this Act for a credit provider or a credit bureau to be registered—
| (a) | takes effect 40 business days after the effective date; and |
| (b) | during the first year after the effective date, that requirement is temporarily satisfied from the time that a person applies for registration as a credit provider until a regulator has made a final decision with respect to that application. |
| 3. | National register of credit agreements |
| (1) | Despite section 69, the requirements of section 69(2), (3), (4) and (5) remain inoperative until a date declared by the Minister by notice in the Gazette after— |
| (a) | the National Credit Regulator has established the register of credit agreements as required by section 69(1); and |
| (b) | the Minister has received advice from an independent auditor that the National Credit Regulator has established reasonable and effective means to receive and compile information to be reported to it in terms of section 69. |
| (2) | The Minister may prescribe the information to be registered by a credit provider in respect of a pre-existing credit agreement, in lieu of the information required by section 69(2). |
| 4. | Application of Act to pre-existing agreements |
| (1) | This Act applies to a credit agreement that was made before the effective date, if that credit agreement would have fallen within the application of this Act in terms of Chapter 1 if this Act had been in effect when the agreement was made, subject to subitems (2) to (5). |
| (2) | The provisions of this Act referred to in the first column of the following table apply to a pre-existing credit agreement only to the extent indicated in the second column of the table. |
Provisions of the Act |
Extent to which the provisions apply to a pre-existing credit agreement |
Chapter 1 Chapter 2 Chapter 3 Sections 67 and 68 Sections 70 to 72 Sections 95 to 98 Chapter 5 - Part E Sections 122 and 123 Chapters 6 to 9 Schedules 1 and 2 |
Apply fully to a pre-existing credit agreement from the effective date, except that section 5(3) does not apply in respect of a pre-existing credit agreement. |
Chapter 4 - Part D |
Applies to a pre-existing credit agreement only to the extent that it does not concern reckless credit |
Chapter 4 - Part A Section 91 |
Apply to a pre-existing credit agreement only with respect to actions or omissions that occur on or after the effective date. |
Section 69 |
Applies to a pre-existing credit agreement only after the date declared by the Minister in terms of item 3. |
Sections 89 and 90 |
Apply to a pre-existing credit agreement only to the extent that common law, national or provincial legislation applied, to similar effect, to such an agreement or provision as at the date the agreement was made. |
Section 93 Chapter 5 - Part D |
Apply to a pre-existing credit agreement from the effective date, subject to subitem (3). |
Chapter Part - Part C Sections 92, 94, 99 and 121 Chapter 5 - Part C |
Do not apply to pre-existing credit agreements, subject to subitem (3). |
| (3) | With respect to any credit agreement, other than a pawn transaction, made within one year before the effective date, the credit provider must within six months after the effective date— |
| (a) | provide the consumer with— |
| (i) | a statement that meets the requirements of section 92; and |
| (ii) | a document that meets the requirements of section 93, |
to the extent that a document or statement contemplated in terms of subparapaphs (i) or (ii) above has not already been provided to the consumer by the credit provider prior to the effective date; and
| (b) | introduce a form of periodic statement that meets the requirements of section 108. |
| (4) | On application by a credit provider the National Credit Regulator, if it is satisfied that it is impracticable for the credit provider making best efforts in good faith to comply with all or part of subitem (3), may— |
| (a) | extend the time within which the credit provider must comply with the obligations of subitem (3); or |
| (b) | enter into a compliance agreement with the credit provider establishing a plan and schedule for meeting the requirements of subitem (3). |
| (5) | Despite section 95, for the purposes of this item, a change after the effective date to any credit agreement that was made before the effective date constitutes the making of a new credit agreement, unless it is a change to— |
| (a) | the interest rate under a variable rate agreement; or |
| (b) | the interest rate or the credit limit under a credit facility. |
| 5. | Maximum interest rate |
The maximum annual finance charge rate set in terms of the Usury Act, 1968 (Act No. 73 of 1968), and in effect immediately before the effective date continues in force despite the repeal of that Act, as the maximum interest rate, until the Minister first prescribes a maximum rate of interest in terms of section 105.
| 6. | Specific preservation of rights, instructions, registration and similar status |
| (1) | Subject to item 7(1), a person who, immediately before the effective date, was registered by an entity contemplated in item 8 as a debt counsellor is deemed to have been registered as such in terms of this Act as from the effective date. |
| (2) | Despite the repeal of the Credit Agreements Act, 1980 (Act No. 75 of 1980), the provisions of section 24 of the Income Tax Act, 1962 (Act No. 58 of 1962), apply to a credit agreement to which this Act applies, to the extent that those provisions would have applied to such a credit agreement if the Credit Agreements Act, 1980 (Act No. 75 of 1980), had not been repealed. |
| 7. | General preservation of regulations, rights, duties, notices and other instruments |
| (1) | A registration that had been issued in terms of section 15A of the Usury Act, 1968 (Act No. 73 of 1968), by an authority administering exemptions under that section, for an indefinite term and in force immediately before the effective date, has a duration, as from the effective date, of the period determined by regulation for that category of registration. |
| (2) | Any other right or entitlement enjoyed by, or obligation imposed on, any person in terms of any provision of the previous Act, which had not been spent or fulfilled immediately before the effective date must be considered to be a valid right or entitlement of, or obligation imposed on, that person in terms of any comparable provision of this Act, as from the date that the right, entitlement or obligation first arose, subject to the provisions of this Act. |
| (3) | A notice given by any person to another person in terms of any provision of a previous Act must be considered as notice given in terms of any comparable provision of this Act, as from the date that the notice was given under the previous Act. |
| (4) | A document that, before the effective date, had been served in accordance with a previous Act must be regarded as having been satisfactorily served for any comparable purpose of this Act. |
| (5) | An order given by an inspector, in terms of any provision of a previous Act, and in effect immediately before the effective date, continues in effect, subject to the provisions of this Act. |
| 8. | National Credit Regulator |
As of the effective date—
| (a) | the assets, liabilities and employees of a regulatory institution designated by the Minister in terms of section 15A of the Usury Act, 1968 (Act No. 73 of 1968), are transferred to and are assets, liabilities and employees, respectively, of the National Credit Regulator; and |
| (b) | any person appointed as an inspector or in any other capacity in terms of the Usury Act, 1968 (Act No. 73 of 1968), may be transferred to the National Credit Regulator. |
| 9. | Provincial regulatory capacity |
Until provincial legislation has been enacted in a province establishing for that province a provincial credit regulator as contemplated in Part D of Chapter 2, the Minister, by notice in the Gazette, may delegate to the relevant MEC of that province all or any of the functions of the National Credit Regulator to be exercised within that province and in accordance with this Act.
| 10. | Continued enforcement of repealed laws |
Despite the repeal of the previous Acts, for a period of three years after the effective date and in respect of a matter that occurred during the period of three years immediately before the effective date—
| (a) | the National Credit Regulator may exercise any power of the Minister in terms of any such previous Act to investigate and prosecute any breach of that Act, as if it were proceeding with a complaint in terms of this Act; and |
| (b) | the Tribunal may make any order that it is authorised to make in terms of this Act that could have been made in the circumstances by a court under any previous Act as if it were proceeding with a complaint in terms of this Act. |
| 11. | Regulations |
On the effective date, and for a period of 60 business days after the effective date, the Minister may make any regulation contemplated in the Act without meeting the procedural requirements set out in section 171 or elsewhere in this Act, provided the Minister has published such proposed regulations in the Gazette, allowing a period of at least 30 business days for comment.