Given the latest changes to the National Credit Act, No 34 of 2005 (hereinafter referred to as the “Act”) by the National Credit Amendment Act 19 of 2014, legal entities must determine whether they are regarded as credit providers in terms of the Act and the next practical step is to then register as a credit provider. This article will provide the guidelines to assist credit providers with the registration process to ensure compliance with the Act.
In summary the most notable amendments was effected on 11 May 2016 and 11 November 2016 and contain the following:
On 11 May 2016, a new threshold of R 0 (nil) was published and from 11 November 2016, 6 months after the publication of the new R 0 (nil) threshold, all credit providers (irrespective of the number of credit agreements) should register as credit providers with the NCR. This means that any person who extends credit that does not form part of an incidental credit agreement is required to register as a credit provider with the National Credit regulator.
Exclusions (Section 4)
Certain exclusions apply to the requirement to register as a credit provider. Requirements to register as a credit provider is excluded where the consumers are juristic persons (together with all its related juristic persons) with an asset value or annual turnover of at least R1 000 000.00 (one million Rand) or where the juristic person concludes a large credit agreement with the credit provider, with a principal debt of at least R250 000.00 (two hundred and fifty thousand Rand).
Based on the abovementioned information the natural or juristic person can establish whether they are required to register as a credit provider in terms of the Act. If you are required to register you can follow the following steps to assist with your application with the National Credit Regulator for registration of a company as a credit provider in terms of Section 40 and 41 of the Act:
- A fully completed Form 2 (Application for registration as a credit provider) which is attached hereto as available on the National Credit Regulator website at www.ncr.org.za.
- Corresponding organisational information including Companies and Intellectual Property Commission (CIPC) registration documents, organisational legal registration documents and the copies of Identity documents or passports of all directors;
- The auditor or accounting officers’ details including that auditor or accounting officer’s practice number and details of which professional body they belong to;
- Financial Information including the principal debt as at the date of application and the total number of credit agreements that made up the principal debt;
- The list of business premises from where the Company conducts its business
- Declaration by the company stating that the National Credit Regulator or any of its officers may enter the Company’s premises during business hours to conduct any reasonable inquiry;
- A signed resolution stating that the Company wishes to register as a National Credit Provider;
- Disqualification of natural persons to be completed by all directors listed on the entity’s legal registration documents;
- A Criminal Name Clearance Certificate for all the directors. This is obtainable from the South African Police Services or other service providers listed as recognised service providers with the National Credit Regulator;
- Registration fees including an application fee, initial registration fee and branch fee (proof of payment and completed annexure confirmation of payment of fees must be submitted)
- A letter from the bank confirming the applicant’s banking details or a copy of a cancelled blank cheque; and
- Motivation outlining the applicant’s ability to provide developmental credit.
All documentation must be delivered to: 127 – 15th Road, Randjespark, Midrand for the attention of the National Credit Regulator. In the alternative the documentation may be posted to PO Box 209,Halfway House, 1685.
The process can take between 9 (nine) and 12 (twelve) weeks to be completed, pending the provision of accurate information being provided by the natural or juristic person in their application.
Failure to register
Chapter 3, Section 40(3), (4) and (5) of the Act regulates the sanctions that apply to an entity that is required to register as a national credit provider but have not done so. These sections of the Act state:
- Section 40 (3): “A person who is required in terms of subsection (1) to be registered as a credit provider, but who is not so registered, must not offer, make available or extend credit, enter into a credit agreement or agree to do any of those things.”
- Section 40(4): “A credit agreement entered into by a credit provider who is required to be registered in terms of subsection (1) but who is not so registered is an unlawful agreement and void to the extent provided for in section 89.”
If a person fails to register in circumstances where credit is provided as provided by the Act both the capital and the interest may be at risk and the entire agreement can be found to be void to the extent provided for in section 89. We strongly suggest that you take the time to consider whether you are regarded as a credit provider to avoid situations where the whole amount you expended may become unrecoverable.
Barnard Inc is an attorneys firm in Centurion, Pretoria.