Can I list a debtor as a bad payer with the credit bureaus?

A credit granting business client can list a business or individual, who has defaulted on payment in accordance with the National Credit Act (NCA) regulations, directly onto the several Credit Bureau Default Listing databases.

This listing will immediately appear on the person's Consumer Credit Report as adverse information under Default listings. In the case of a business, the Default listing will immediately appear on the business's Business Credit Report under Default listings.

Default listings will negatively influence the person or business's credit rating and will reflect on their credit report for a minimum of two years.

These are the steps to follow:

·        In terms of section 72 of the NCA, you are obliged to give your debtor 20 days’ notice of your intention to provide the credit bureaus with any adverse information, and the debtor is entitled to challenge the accuracy of any such information so provided;

·        If, within 20 days, you persist in listing the debtor, it can challenge the accuracy of the information proposed to be reported to a credit bureau or to the National Credit Register.

An HOA can lawfully limit/refuse an owner to purchase pre-paid water and electricity vouchers.

In an earlier post, I mentioned that no-one but a municipality could switch off a defaulting owner’s electricity, and that if a landlord did so, the tenant could bring a spoliation application, forcing the landlord to restore the service.

What happens if the rules of a Homeowners Association (‘the HOA’) provide that the HOA can deny services to an owner that is in breach of its rules? The question is whether a party can contractually agree to forfeit certain rights to his property.

The court had to determine that in the case of Van Rooyen v Hillandale Homeowners Association (1603/2014) [2014] ZAFSHC 226 (11 December 2014).

An owner (van Rooyen) failed to pay certain penalties relating to the latter’s failure to adhere to the HOA’s aesthetical rules. As a result, the HOA limited the owner’s electrical supply. Van Rooyen approached the court in terms of the mandament van spolie for an order restoring his access to and use of electricity.

The court found that the actions of the HOA didn’t amount to spoliation:

‘I am satisfied that the trust’s failure to adhere to the aesthetical rules triggered the imposition of penalties which remained unpaid. The rules and the contract entered into between the trust and the respondent, are binding on the applicant. The respondent was entitled or had the power to refuse to sell applicant prepaid water and electricity vouchers, or to limit the number of units to be sold to applicant. Respondent’s conduct was therefore not unlawful as it acted within the rules and the agreement it entered into with the trust. The conduct of the respondent did therefore not amount to spoliation’.

The court stated further that:

‘It is trite that parties are free to contract as they please. The law permits perfect freedom of contract. Parties are left to make their own agreements, and whatever the agreements are, the law will enforce them provided they contain nothing illegal or immoral or against public policy’. 

On this basis, it could be argued that a tenant can contractually agree to forfeit certain rights to his property, in a lease, or an owner of a sectional title unit can be bound by restrictive Conduct Rules.

Maintenance Courts letting down single mothers

Single mothers applying for child maintenance in KwaZulu-Natal are frustrated with having to deal with unhelpful court staff and a justice system they believe has failed them, says a report in the Daily News that recounts the experiences of several applicants. It says they feel that maintenance courts do not protect the rights of single mothers and their children and say that the process of applying for maintenance is an ‘embarrassing and shameful’ experience. Many said that mothers are ridiculed at the courts and treated like criminals. One of the issues facing maintenance courts, according to the report, is inadequate staff which impacts heavily on the process of maintenance orders. Nationally, there are only 427 court clerks, 86 maintenance officers, 140 maintenance investigators. At the Durban Magistrates’ Court, there are six court clerks and three maintenance officers. Umlazi court has six clerks and two maintenance officers. Pietermaritzburg has only five maintenance officers.

Commission rules in favour of homos exual guesthouses

Homos exual guesthouses that exclude heteros exual couples, women and l esbians have been given the green light by the Commission for Gender Equality (CGE). According to a Sunday Times report, the commission’s ruling said it was possible to discriminate positively. Wits University law lecturer Tracy-Lynn Field is quoted as saying that although the constitutionality of the ruling could still be tested, recommendations made by organisations such as the CGE carried a lot of weight. Field said the Constitution only prohibited unfair discrimination. ‘So the question is, there may be discrimination but the issue is, is it unfair or not?’ The ruling comes after the G ay and L esbian Alliance asked the SA Human Rights Commission (SAHRC) to investigate 11 businesses on the grounds that their exclusivity denied the public access on the basis of s exual orientation, skin colour, gender or religion. The SAHRC referred the complaint to the CGE which, in its ruling, said that ‘accommodation of this nature is necessary in our democratic society to advance legitimate interests of the aforementioned groups’. SAHRC chairman Jody Kollapen said he was worried about the effects of exclusivity. ‘While it may be acceptable to have an association that is established to advance the interest of a particular group, it’s quite different when you are dealing with public facilities.’
Full Sunday Times report

 

Supplied courtesy of Legalbrief Today.

 

Grandfather sued for maintenance of dead son's child

Almost seven years after his only son was murdered, a KZN man is being sued for maintenance for his dead son’s child, says a report in The Witness. The girl was born out of wedlock to his son 10 years ago. Since a precedent-setting case in 2004, grandparents now have a legal duty to support their grandchildren if the mother is unable to and if the father is indigent, said an attorney. The duty also exists if the father has died. Judge PB Fourie ruled in the Cape High Court in 2004 that the Maintenance Act should be declared unconstitutional as it unfairly discriminates against extra-marital children and is contrary to the best interests of the child. If the common law is to keep in step with the values enshrined in our Constitution, then the paternal grandparents have a duty to support their extra-marital grandchildren to the same extent that the maternal grandparents are liable, he held.