School fees and the law - public schools

It is nearly 2016 and in South Africa the public schools will start early in January.
By law all parents who enroll their children in Public schools MUST pay school fees - IF their income allows this 

You can check whether you qualify for partial, total or not at all for exemption here:

Calculating exemption possibility

(click on the (PDF) link of the first google link that appear - it is government notice R 1052 published on the 18th October 2006)

It is imperative that parents take note of their right to exemption of school fees if they qualify in terms of the law.

3.   Obligations of governing bodies and principals when learner is admitted to a public school

(1) The principal must notify a parent of the following:

(a) the amount of the annual school fees to be paid and the procedures for applying for exemption;

This is not an option - it is a task that must be performed by the principal.

(b) the fact that the parent is liable for the payment of school fees unless

he or she has been exempted from the payment thereof;

This again places the onus square on the shoulders of the principal and following on 

to this is the following requirement of an action to be performed by the Principal: 

(c) a form (Annexure A), contemplated in section 41(4)(c) of the Act,

must be completed by the parent and signed by the principal of the

school and by the parent, indicating that the parent has been

informed about the provisions of paragraphs (a) and (b);

This again is not optional - it MUST be done.

(d) one copy of the signed form contemplated in paragraph (c) will be

handed over to the parent when the learner is admitted to the public(e) 

If a parent is in arrears by one month or more, the governing body will

investigate whether the parent qualifies for exemption before acting

in terms of section 41(1) of the Act.

 This is the punchline -  an action to be performed by the governing body and it also spells out the actions to be taken BEFORE any legal action can be taken

Prescribed debt - comments by ADRA ceo Marius Jonker

The following article has been copied from "the latest" Adra Link Magazine written by the Association of debt recovery agents' ceo Marius Jonker on the issue of Prescription and their view on Section 126B of the NCA as amended on the 15th of March 2015.

I will underline the issues where I am commenting on and will paste my comments in Red ink.


Section 126B and Prescription
Section 126B is a prominent feature of The National Credit Act as
amended. There are several interpretations of section 126B
which vary substantially. (*1)Interpretations encountered thus far
includes that the wording of section 126B is unconstitutional
and as such not truly enforceable, that section 126B only creates
a duty to educate the consumer on the defence of prescription
and thereafter normal collection processes may follow until the
consumer successfully raises the defence of prescription,(my comments:)

(*1)This, of course, would be the view of creditors. We have seen various attempts from creditors to try and enforce the collection of very evidently prescribed debt and bullying consumers into agreeing to pay on these accounts or to sign an AOD.  Our view is that these attempts are criminal in its best form and that consumers take the legal route and lay charges with this amendment as basis.As is mentioned further on in the article transgressions can cost a creditor dearly and consumers must be wide awake and take them head on should it seem to be an attempt at collecting on prescribed debt after the date of 15 March 2015................. Our view is clear:  The insertion with the amendment makes it clear that  


that
the section creates an onus on the credit provider to ensure that
no enforcement action is taken on potentially prescribed debt
and should a debt be prescribed that the credit provider (nor its
agent the debt collector) may take any enforcement action on
the account whatsoever.
To further complicate the matter many credit providers have
based their internal policies on how to deal with prescription not
on legal opinion but on potential reputational risk they may
incur.
Readers are requested to share legal opinion they may have
obtained on this and any other topic with the ADRA office. It is
our intention to provide members with as many available
opinions as possible to assist them in making their own decision
on which interpretation they believe is correct. Where requested
legal opinions will not be published but used for internal
information purpose only.
Irrespective of the opinion the member may prefer, credit
providers and debt collectors will have to implement a sound
prescription management policy backed by the necessary
systems. A transgression of the section may result in a fine being
imposed on the credit provider to a maximum amount of R1m or
10% of its annual turnover per transgression. Credit providers
will insist on outsourced debt collection service providers having
a sound policy and systems in place to prevent such liability for
the credit provider/client.
Any prescription management policy will have to deal with the
following basic issues:
1. Ensure all information relevant to prescription is received
from the credit provider when receiving instructions. Such
information will include the last payment date, the date when
the debt became due and payable, default dates and when
the prescription period commenced, what the relevant
prescription period is and any events which might have
interrupted or stayed prescription.
2. The debt collector will have to train all staff on the topic of
prescription and ensure that all events which interrupt or stay
prescription are identified and recorded. Where prescription
is interrupted as a result of an acknowledgement of debt
(implicit in an undertaking to pay the debt in instalments or
otherwise) the recordings of such conversations will have to
be stored for the life span of the account.
3. Prescription interrupting or staying events will have to be
reported to the credit provider/client.
4. Accounts nearing potential prescription in the hands of the
debt collector will have to be identified, the credit
provider/client informed (in writing) and specific instruction
obtained on how to deal with such accounts.
It will be prudent for members to address the topic of
prescription in detail in their service level agreements with
clients. In particular members are advised to stipulate under
which circumstances the member will be liable to the credit
provider for any losses suffered by the credit provider/client as a
result of debt prescribing in the hands of the debt collector or a
penalty imposed for a transgression of section 126B. Ideally the
debt collector will want to be completely absolved of liability but
this might not always be achievable.
Members will be kept advised of any developments on this front
and are members reminded to please send legal opinions on this
(or any other relevant topic) to the ADRA office at
info@adraonline.co.za.
Opinions and views will be published in the “Members Area” of
the website as and when they become available. Two detailed
opinions were placed at time of drafting of this message. It is not
within ADRA's mandate to prescribe to members how to manage
their businesses or to provide them with legal opinion. The
views published (as with all other views and opinions) are
subject to the full disclaimer appearing on the website.
Marius Jonker
CEO
|

SOLUTIONS TO SELLING “DIFFICULT TO FINANCE” FIXED PROPERTIES

DECEMBER 7, 2015 The Hive comments

Purchasers are increasingly finding it difficult to obtain financing for the purchase of farms, agricultural land, commercial and industrial property.  There are many reasons for this of which banks’ so-called affirmative finance is only one of them.  Banks see these types of properties also as “high risk” – or at least higher risk than normal home loans.  Many sellers of these properties can consider granting the purchaser a bond for the purchase amount, to be paid off over a period of time. There is only one problem.  The NCA requires the seller to register as an incidental credit provider even if it refers to only this one transaction and the seller might never intend to finance anyone ever again.

Some sellers, even with the advice of their attorneys accept an acknowledgement of indebtedness and consent to judgment as sufficient protection, prior to shaking hands and signing off the transfer documents. Before the NCA, the mere registration of the bond or the notice confirming the installment sale of a property registered at the Deeds Office was sufficient. Together with the required written agreement it constituted protection to the incidental money lender in the event of a defaulting purchaser.

The National Credit Act has changed all that. The Act provides, inter alia, that in any credit agreement where the credit amount exceeds R500 000 (five hundred thousand Rand), the lender must be registered as a credit provider. This includes the occasional private farm seller, commercial land owner et all, even if it is a one-off arrangement with no intention by the seller to provide credit to any other person ever again. Failure to register as a credit provider prior to a transaction that can be defined as a “credit transaction” is a transgression of the Act.

Should the credit provider not be registered and the purchaser defaults on the payment agreement, section 89(5) of the National Credit Act is unequivocally prescriptive on how the courts are to deal with such circumstances. A recent judgment in the Constitutional court regarding the right not to be arbitrarily deprived of property and the so-called Limitation clause. J van der Westhuizen delivered a majority judgement on 10 December 2012 which declared the arbitrary forfeiture of property to the state prescribed in section 89(5)(c) of the National Credit Act to be inconsistent with section 25(1) of the constitution, and thus invalid.

But this still leaves the prospective credit provider – in a case of default by the buyer – with the prospect of dealing with the NCA whose intention is to discourage the provision of credit outside the framework set by the legislature.  There are other recourses for the seller – which I am not going to deal with here (  pursuance of such agreement must then be made in terms of unjustified enrichment, and specifically the conditio ob turpem vel iniustam causam.)

All this can be prevented by just registering with the NCR which in itself for the purpose of the deal is not a major train smash.

Although some of my learned friends differ on the point of selling of  property utilizing “Hire Purchase”, which according to our interpretation is not governed by the NCA as no interest is charged and only an occupational rent is paid ( plus normally a deposit) and the transaction is noted on the title deed at the deeds office – There are other requirements that have to be met – like payment of the transfer duties or VAT if applicable has to be made within a certain period (it will attract penalties of not paid)  But the transaction is 100% safe for both parties in that ownership will effectively pass only to the purchaser upon transfer and as the transaction is noted on the title deed, whatever happens to the seller does not negatively affect the buyer.   Expert legal opinion has been obtained on this issue by writer hereof and contains amongst others the following reasoning behind the system:

1.   The purchaser enter into a purchase agreement of land where the property is properly defined and priced

2.       The payment of the purchase price is described as an amount having to be paid up front (a deposit) and the rest of the purchase price at a future determinable date.

3.      No interest is charged on any future portion of the purchase price to be paid.

4.      . Only monthly occupational rent is payable.

5.      The transaction is logged on the title deed

Anyone requiring assistance with any of the above actions are welcome to contact writer hereof

For further reading see National Credit Regulator vs Fillippus Albertus Opperman and others, case number CCT34/12 [2012] ZACC 29 and case law quoted by both the majority judgement and descending judgment written by J Cameron.

School fees : Actions when confronted by a debt collector

In terms of the schools act every parent is required to pay school fees when their children attend a government school.  It is also the Parent's right to apply and be granted exemption in terms of the formula described in the act if they are in financial difficulties. In most cases parents either do not know of this right or how to go about it.   The Principal and governing bodies have been tasked with specifics regarding this and in my humble opinion if they neglected to do what the act requires of them they cannot collect on this Debt. 

In Government Notice in the Government gazette nor 23311 dated 18 October 2006  Grace Naledi Mandisa Pandor, Minister of Education after consultation with the council of Education Ministers and the Minister of finance and in terms of sections 39(4) and 61 of the South African Schools act no 84 of 1996 published refulations ind the Schedule for general information.

This is critical information to every single person in South Africa who were or are unable to pay school fees and are being haunted by debt collectors.

The Notice higlights the following : ( Exact extract from the notice in red - my comments on this in black)  

3.   Obligations of governing bodies and principals when learner is admitted to a public school

(1) The principal must notify a parent of the following:

(a) the amount of the annual school fees to be paid and the procedures for applying for exemption;

This is not an option - it is a task that must be performed by the principal.

(b) the fact that the parent is liable for the payment of school fees unless

he or she has been exempted from the payment thereof;

This again places the onus square on the shoulders of the principal and following on 

to this is the following requirement of an action to be performed by the Principal: 

(c) a form (Annexure A), contemplated in section 41(4)(c) of the Act,

must be completed by the parent and signed by the principal of the

school and by the parent, indicating that the parent has been

informed about the provisions of paragraphs (a) and (b);

This again is not optional - it MUST be done.

(d) one copy of the signed form contemplated in paragraph (c) will be

handed over to the parent when the learner is admitted to the public(e) 

If a parent is in arrears by one month or more, the governing body will

investigate whether the parent qualifies for exemption before acting

in terms of section 41(1) of the Act.

 This is the punchline -  an action to be performed by the governing body and it also spells out the actions to be taken BEFORE any legal action can be taken 

Should you have been contacted in any way by a debt collector - what can you do ?

If you are of the opinion that you could have qualified for exemption were you informed that you can apply for exemption and did the Principal act in accordance with the act ?

Template to be used in an email to the school Principal if collections are being done by the school itself or to the debt collector if this is done via a debt collector or attorney. 

DEAR SIR/MADAM,

Your recent email/telephone call refers.

To enable me to properly respond to your collection effort on an alleged debt of school fees I need the following from you :

a.   A copy of the form, contemplated in section 41(4)c of the South African Schools act no 84 of 1996 that was signed by myself  and the Principal informing me of the amount of the annual school fees to be paid and procedures for applying for exemption, 

as well as:

b.   Actions taken by the governing body when it appeared that payment of the school fees were one month in arrears to investigate whether the parent qualified for exemption before acting in terms of section 41(1) of the Act.

Upon receipt of the requested information I will revert back to you.

Greetings

(Your name) 

  

Prescription of debt South Africa in layman's terms.

Application of Prescription.     CONSUMERS can do themselves a favour and save the following somewhere for future reference:  On the 13th of March this year the amendments to the NCA came into force.  Apart from anything contained therein the following paragraph is of PARAMOUNT IMPORTANCE :       "Insertion of section 126B in Act 34 of 2005
31. The following section is hereby inserted in the principal Act after section 126A:
‘‘Application of prescription on debt
126B. (1) (a) No person may sell a debt under a credit agreement to which this Act applies and that has been extinguished by prescription under the Prescription Act, 1969 (Act No. 68 of 1969).
(b) No person may continue the collection of, or re-activate a debt under a credit agreement to which this Act applies—
(i) which debt has been extinguished by prescription under the Prescrip- tion Act, 1969 (Act No. 68 of 1969); and
(ii) where the consumer raises the defence of prescription, or would reasonably have raised the defence of prescription had the consumer been aware of such a defence, in response to a demand, whether as part of legal proceedings or otherwise.’’.
This is applicable from 13 March this year and should you already have acknowledged prescribed debt before this date this does not apply.  It also does not apply if you are already paying on these previously acknowledged debt..........BUT ANYTHING you did after the 15th of March if the debt has prescribed can be undone.  I am not going to go into a massive debate here -  Just read the portion carefully and you will understand - especially the last portion : " where the consumer raises the defence of prescription, or would reasonably have raised the defence of prescription had the consumer been aware of such a defence, in response to a demand, whether as part of legal proceedings or otherwise.’’.

Handling bullies-For Dummies................

One of the dictionaries define a bully as:

A blustering, quarrelsome, overbearing person who habitually badgers and intimidates 

smaller or weaker people. 

Let us disect some of these very discriptive words :

Blustering: Loud, arrogant speech, often full of empty threats.   Quarrelsome :  ready or likely to argue or disagree.  Overbearing: often trying to control the behavior of other people in an annoying or unwanted way. Habitually badgers and intimidates smaller or weaker people ...............

How discriptive is this ?   This is stunning !    

Now there is a little known fact that everyone must take congnisance of: 

A bully cannot stand to be bullied - Once you stand up for yourself there is a 99% chance they will back off ! 

Now let us apply this definition to the real world.  On one of the facebook pages I frequent people post problems they encounter in life regarding debt, renting of property and all sorts of other issues.   And in practically every one of these there is a bully lurking in the background.

let us discuss a few of these.  

Someone posted about a landlord that is bearing down on a widow because her husband died and he feels she cannot afford to pay the rent. There is still quite a long time left on the original rental contract.  A bully in disguise ? He is not even disguising anything - he is a freaking bully. 

What does the victim do ?   She is so intimidated by this guys action that she might just accept that he is right and she must move.  What can she do ?  She can stand up and tell him in no uncertain terms that he is harrassing her, that if he feels he has the right to do what he is trying to that he must send her a lawyers letter to enforce his right and she will get her lawyer to answer his lawyer and that she will keep him responsible for her costs.  I am prepared to bet anyone 10 to one that he will back off.

Sometimes bullies only apply one of their mean traits:  "Blustering" comes to mind.  Debt 

collectors are masters at this.  The more obtrustive they are the easier they scare the person on the other end of the telephone line.   How do you handle them ?   Stand up and be counted.  Get their name, their company name and telephone number.  In a calm voice you tell them that you do not know what they are talking about and that you need everything they say in writing. "Send me and email"   "Sorry I did not hear you - you cannot send me an email ?"   "Sorry that is the only way you will communicate with me - I need to be able to identify you"...............Click.........Either they will put the phone down or you do so.    You have taken away his only weapon : The telephone. Do not engage with them on the phone- do not respond to sms's.    Any creditor must send you a notice required by law in terms of the National credit act before they can issues summons.  You are awarding them the opportunity to communicate with you via email.  If they refuse you are within all your rights to refuse to speak to them.  

To conclude :   Change your role from Victim to aggressor.    

Accept that you are dealing with a bully - they will back down if you stand on your rights

Do not feel intimidated because you are speaking to a debt collector - there are reasons for you situation and the other party must either understand that or leave you alone.  That is why you must insist on everything in Writing !   Everything does not mean something - It means everything .

Human Error vs Malicious Intent

Some recent events have highlighted the shortcomings of various systems regarding the money of debtors.  Debtors are given debt based upon their ability to repay.  Or would I rather say that is what is supposed to happen.  Creditors should ask themselves a few questions before extending credit :
Is the state of the economy such that debtors will be able to sustain their repayments by keeping their jobs.   Can the debtor pay?  This is where afforability assessments are crucial. Will the debtor pay ? Checking of credit records and credit profile are applicable. If all else fails - will the creditor have security that can be monetized to recover some damages ?

It is recognized that a proper credit industry will have all these things in place.  Unfortunately they do not - Not by a long shot.

So what happens in practise ?

Creditors do not have an ethical code of conduct. If you ever find one please send me a copy.

They will do anything to make money.  Greed is the word . Need I quote more than the recent Lewis stores debacle, & the recent court case regarding the salary emoluments in the Cape ?

If you follow court cases regarding debt recovery you will find more often than not that banks issue required notices in terms of the NCA to the wrong addresses  They always claim this as human error just like Lewis is now claiming human error in their wrong doings with clients. How do you spell "human error"  - I spell it "malicious intent"

Just remember that most judgments about debt are by default. That means that the action was not defended.  I am prepared to bet you a fine dollar that in most cases the notices and summonses were intentionally sent to the wrong address knowing full well that if the client does not know of the impending action they will not respond and will not defend.

Here is a scenario that proves what I am saying.  I changed my chosen domicilium address in writing in October 2010.   The bank acknowleges the change by stamping a copy of the letter at a branch. Standard operating procedure apparently requires of them not to do anything about this.
In 2014 they sent a 129 notice to a 10 year old address - not the previous one on record - actually not on record at all.  They issue summons at the same address.  They send the Sherrif to the same address and get a nulla bona ( no loose assets to attach) They get a judment and put the house up for auction.
They claim "Human error"  I claim Malicious intent. ( a friend saw the sales advertisement in the newspaper and informed me )

This case proves beyond any reasonable doubt that there are systems and standard operating procedures in place with (especially banks) creditors to ensure that they get their judgments by hook or by crook with the emphasis on CROOK.

(P. The judgment was rescinded by the bank - costs for their account)