Real Estate Investor Magazine South Africa July 2013 | Page 18

COVER STORY
intervention of the courts, get an attorney to
negotiate lesser payments with your creditors on
your behalf,” advises Gerstner.
If you are already in arrears with some of your
creditors, enlist the help of a debt counsellor
registered with theDCI immediately. Do not
wait until you receive a Section 129 notice
from a creditor, because that will exclude the
particular debt from the protection you enjoy in
terms of the NCA.

Know you have rights
No matter how deeply indebted you are, you have
rights as a credit consumer and you should do
everything in your power to ensure your rights are
respected and upheld.
For example, the NCA caps the rates of interest
creditors may charge. The in duplum rule, as
a pertinent case in point, prohibits interest
charges that exceed the amount of the principle
debt. In addition, if you cannot meet your debt
repayments, section 129(1) of the NCA stipulates
that the bank and the client must ‘develop and
agree on a plan to bring the payments under the
agreement up to date’, but this is often simply
ignored by the banks and other credit providers.
The Constitutional Court has ruled that it
is unconstitutional for a bank to sell a home in
execution where the debt is disproportionately
low compared to the value of the home or to
the amounts already paid in. In addition, only a
judge - and not a high court registrar - can grant a
judgment to a bank or issue a Writ of Execution,
and only once the bank has shown that the
sale of the property is justifiable, given all the
circumstances of the particular case.
Whatever amount is outstanding, Scott Cundill
of NewERA warns: “Be particularly wary of
the banks’ ‘quick-sell’ options for distressed
homeowners and of signing any documents in
which you admit indebtedness. These contracts
often contain clauses through which the banks
obtain your consent to judgment or to an auction,
should your property not be sold on time. This
leaves in you a serious quandary because you have
unwittingly signed away all your rights.”
Many consumers have also faced sheriffs of the
court who act without the correct documentation
and with undue force, sometimes aided and
abetted by police officers, and who remove
or attach property unlawfully. Sheriffs of the
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July 2013 SA Real Estate Investor

court are regulated by statute and have a code
of conduct. They may not mislead the public or
misrepresent themselves, or make unjustified
threats. The UBUNTU Liberation Movement
notes that people have rights to prevent their
property from being taken against their will.
As such, it has published a document “How to
Deal with the Sheriff”, which is available on its
website. It suggests that legal and lawful rights
exists which a