Credit-granting companies are urged to continue to carry out stringent checks on prospective lenders, following a recent ruling that relaxes affordability assessment requirements.
While many local retailers have lauded a recent High Court ruling that binned a legal clause requiring lenders to demand payslips and financial statements from credit applicants, the move has been met with raised eyebrows from SA’s credit regulator – which is concerned it may lead to reckless lending.
Indeed now more than ever, in light of the historic ruling, it is worth reiterating how vital it is for credit lending – in whatever form – to be approached with caution. If you are a business owner that deals with individuals or other businesses, the importance of carrying out thorough checks when assessing customers’ credit status cannot be stressed enough.
While it is unquestionably important for businesses to have customers, financially vulnerable customers only spell trouble – both for your company’s bottom line and the customer, who you as a business should be protecting.
On March 16 this year, the Western Cape High Court made a ruling that binned the clause of the National Credit Regulations that, since 2015, had made it compulsory for credit lenders to acquire payslips and financial statements from prospective borrowers before granting credit.
The judgment applies to all forms of credit lending, from store credit to microloans.
Prior to the recent ruling, subsection 23 A(4) of the National Credit Regulations required credit providers to obtain three recent payslips or bank statements as proof of income from applicants who were permanently employed – and three recent documented proofs of income or bank statements from those who did not receive a salary. If the applicant could not provide proof of income, credit providers had to then get three recent bank or financial statements from them (see page 18 of the Government Gazette, 13 March 2015).
While affordability assessments have always been a requirement of the National Credit Act (NCA), prior to the more stringent requirements put in place in 2015, credit providers were allowed to decide on their own means of carrying these out.
This year’s Western Cape High Court ruling – spurred on by applications by Truworths, the Foschini Group and the Mr Price Group – essentially returns the affordability assessment subsection of the NCA back to its former, more moderate, self.
The three retailers brought the case against the Department of Trade and Industry and the National Credit Regulator (NCR) because they claimed the said affordability assessment regulation adversely affected their businesses.
Continue with caution
However, the NCR, which believes an important tool in the fight against reckless lending and borrowing has been removed, is not happy with the ruling, to the extent it is considering an appeal.
The Credit Ombud, meanwhile, has also reportedly greeted the ruling with caution.
News site iol cites NCR company secretary, Lesiba Mashapa, urging credit providers to continue to carry out thorough credit checks despite the ruling: “We appeal to credit providers to continue to apply the income verification standards set by the regulations to protect themselves and consumers from reckless lending and borrowing.”
While the credit regulations in terms of affordability assessments have been significantly relaxed, Section 81 of the NCA, which requires credit providers to take “reasonable steps” to assess consumers’ financial stability before granting credit, remains in force.
Mashapa has urged credit providers to proceed with caution, and continue to carry out stringent credit checks on prospective customers. “[Credit providers] should request consumers to produce proof of income.”
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- Credit Ombud – National Credit Regulations including affordability (Chapter 3: Page 17)
- The Department of Justice & Constitutional Development – National Credit Act (Page 114)
- Southern African Legal Information Institute – Truworths Limited and Others v Minister of Trade and Industry and Others (4375/2016)  ZAWCHC 41
- iol – High Court ruling removes barriers to credit
- Business Day – Court ruling leaves credit providers in catch-22 situation