Credit providers to proceed with caution

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man-and-women-window-shipping-at-mallCredit-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.

Court ruling

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.”

pbVerify offers a range of B2B and B2C Credit Risk Management tools for any size business in South Africa that grants credit. For more information visit our products page HERE

 

[REFERENCES]

  1. Credit Ombud – National Credit Regulations including affordability (Chapter 3: Page 17)
  2. The Department of Justice & Constitutional Development – National Credit Act (Page 114)
  3. Southern African Legal Information Institute – Truworths Limited and Others v Minister of Trade and Industry and Others (4375/2016) [2018] ZAWCHC 41
  4. iol – High Court ruling removes barriers to credit
  5. Business Day – Court ruling leaves credit providers in catch-22 situation

Consumer credit checks and the NCA

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Consumer credit checks

Businesses need to provide reasons for drawing consumer credit reports, in terms of the National Credit Act. 

If you are a credit provider of any kind, it is inevitable that you will frequently have to dig into the financial history of potential debtors.

pbVerify offers a range of Business to Consumer (B2C) credit check services*, which help businesses make better business credit decisions when assessing new debtors. As SA’s leading data bureau, we know that the better the information you have on your potential customers, the better your decisions will ultimately be.

At the same time, you need to be aware that the rights of the credit-seeking consumer are clearly enshrined in legislation, in particular the National Credit Act (NCA) No. 34 of 2005, and the onus is on you to make sure you comply.

Yes, as a credit grantor following good business practice, you have the basis for an enquiry into a potential debtor’s financial history (i.e. via a credit report) – but a consumer’s credit report is confidential and may not be accessed without legal grounds, or the consumer’s explicit permission.

These “legal grounds” are laid out in the NCA, in the form of prescribed purposes (the Act requires that you specify the reason you are drawing a credit report).

In this article, we will outline the rationale behind the NCA, and list some of the prescribed purposes it incorporates.

The purpose of the NCA

South Africa’s population consists mainly of lower LSM (Living Standards Measure) individuals with limited to no access to credit channels.

According to the Banking Association of South Africa, the complex nature of credit agreements has left many of the country’s consumers vulnerable and often exploited by credit providers.

“This led to the establishment of the NCA [which includes] mechanisms to protect consumers against unscrupulous lending and over-indebtedness.”

The NCA seeks to “promote and advance the social and economic welfare of South Africans, promote a fair, transparent, competitive, sustainable, responsible, efficient, effective and accessible credit market and industry, and to protect consumers.”

The association lists credit providers as banks, micro-lenders, retailers (e.g. furniture and clothing stores) and “all businesses, companies, close corporations, partnerships and individuals who do business on credit, provide loans or charge interest on overdue accounts; and who offer credit within the prescribed threshold values in terms of the [NCA] Act”.

Consumers, says the association, include both individuals (natural persons) and “certain juristic persons [e.g. companies, close corporations, trusts (with more than three individual trustees), partnerships and an association of persons] whose asset value or annual turnover, together with the combined asset value or annual turnover of all related juristic persons, at the time the agreement is made, equals or exceeds the threshold value of R1 million”.

Prescribed purposes

A credit bureau may issue you with a consumer’s credit report in terms of the NCA, under a number of prescribed purposes – including, but not limited to:

  • Account Management
  • Affordability Assessment
  • Alternative dispute resolution
  • Book Assessment
  • Consumer Enquiry
  • Credit Assessment
  • Credit Limit
  • Credit Ombud Enquiry
  • Tracing (non-credit provider
  • Debt Review
  • Education / Employment
  • Employment
  • Fraud Investigation
  • Fraud Prevention
  • Insurance Application
  • Marketing Services
  • Other Legislation
  • On consumer instruction/consent
  • Score Development
  • Tracing
  • Unclaimed Funds

The above are abbreviated descriptions. For the full description, explanation and NCA references, click HERE.

pbVerify’s B2C credit check suite and is available after registration to any business that grants credit to other businesses or consumers.

 

*pbVerify’s Consumer Credit Check services include the Transunion ITC Credit Check; Compuscan Credit Check; Experian Credit Check; XDS Credit Check; pbVerify Credit Check; and our recently added Express Credit Score product (See related blog here).

 

REFERENCES

  1. National Credit Act 34 (2005)
  2. The Banking Association of South Africa website
  3. IOL – Who may see your credit report?
  4. pbVerify blog – Credit vetting: an essential key to SME success
  5. Compuscan’s “Prescribed purposes for access to consumer data” guide