NCR disputes lawyers’ interpretation of in duplum rule

The National Credit Regulator (NCR) has differed with lawyers’ interpretation of a key piece of legislation which forms the lifeblood of SA’s debt collection industry, says a Moneyweb report. The conflict centres on the interpretation of the in duplum rule as contained within the National Credit Act (NCA) – and as sparked by a Moneyweb investigation which revealed an apparent abuse of unsecured borrowers by collection attorneys.

The NCR’s Lesiba Mashapa said the statutory in duplum caps the fees lawyers may charge in connection with the collection of loans. Under the NCA’s extended version of in duplum collection, costs – together with interest and other fees that accrue when the consumer is in default – should not exceed the unpaid balance of the capital amount of the loan. However, the report notes, Mashapa’s interpretation of the law differs fundamentally from the interpretation which is put into practice by the majority of collection attorneys.

Lawyers maintain that in duplum does not include lawyers’ fees, effectively allowing them to charge defaulters amounts well in excess of the principal amount of the loan. This interpretation has allowed for situations where SA workers had been charged apparently exploitative amounts – upwards of 10 times the principal – for the recovery of outstanding debt. By Mashapa’s interpretation, this practice – believed to be widespread – is illegal.

– Extract from Legal Brief, 27/09/2012

Homeless take city to court

Durban – Residents of a KwaMashu informal settlement and the shack dwellers’ movement Abahlali baseMjondolo have taken the eThekwini Municipality to court for failing to comply with a court order to provide homes for residents evicted from the area.

In 2009, residents of the Siyanda settlement near KwaMashu were evicted from their shacks by the Department of Transport and relocated to transit camps to make way for the construction of Dumisani Makhaye Drive.

Despite opposition from residents, an eviction order was granted on March 6, 2009, and the residents were relocated less than two weeks later. The court order stated that all basic services be provided in the transit camps, and that the residents be moved to formal houses within 12 months. More than three years later, the movement said residents have no water, electricity or sanitation and are still waiting for houses.

In the Durban High Court on Monday, advocate Geoff Budlender SC, acting for the residents, said: “If the court made an order for the municipality to do something and they can’t, the matter should have gone back to court.

“They [eThekwini Municipality] can’t say they’re not going to comply because they cannot afford it. The municipality has a constitutional obligation.”

Budlender argued that the city was looking for excuses not to comply with the order.

The municipality’s counsel, John Pammenter SC, argued before Acting Judge Nigel Hollis that it was shocking that the order had been granted.

“No one told us that the order sought was to compel the municipality to supply houses. The order should never have been sought,” Pammenter said.

The municipality had found out two weeks after the matter was finalised that the order had been granted compelling it to provide houses, Pammenter said.

“We were asked by the MEC for transport to provide 560 houses and we did that. Out of the blue, we heard that the order asked the city to provide more houses.”

Pammenter said there was no obligation to provide homes for the 38 applicants housed in transit camps on Richmond Farm because the municipality did not provide housing from its own funds.

He said the order was “fundamentally wrong”.

Acting Judge Hollis said: “If the municipality is saying it [the order] should never have been granted, why didn’t they do something about it?”

Pammenter said the city should have been obliged to report on the availability of houses. “No proper investigation was done,” he said.

Acting Judge Hollis said: “It’s all very well to say there’s no money. For emergencies like this they [the city] might be able to ask for special funds.”

The matter was adjourned for a decision.

– Daily News 18/09/2012 (via

Friends of court issue in dispute

The Constitutional Court will hear an application by a rights organisation today on whether a friend of the court can present evidence in a High Court matter.

The Children’s Institute had been admitted as an amicus curiae to the High Court in Johannesburg for a case on whether certain children were in need of care, notes a report on the IoL site. The institute applied to present evidence, but this was refused on the basis that High Court rule did not allow friends of the court to do this in a High Court matter. The rights group applied to the Constitutional Court for leave to appeal the ruling. It submits that the High Court rule, properly interpreted, does not prohibit friends of the court from presenting evidence. In addition, amici curiae had an important role to play by representing the interests of vulnerable people involved in litigation.

From Legal Brief, (18/09/2012)

Action plan for democracy education

Action plan for democracy education – Ulaanbaatar, Mongolia
Lindi Coetzee recently returned from participating in a seminar in Ulaanbaatar, Mongolia. The aim of the seminar was to produce an action plan for democracy education. This is a global initiative by the Community of Democracies. Community of Democracies is a global intergovernmental coalition of democratic countries, with the goal of promoting democratic rules and strengthening democratic norms and institutions around the world.
It was founded in 2000 during a Ministerial Conference in Warsaw. In 2000 in Warsaw ministerial delegations from 106 countries from all around the world signed the final declaration Toward the Community of Democracies, naming values which constitute democracy. The aim of the declaration was to demonstrate methods of support to those countries which strive for freedom and democracy.
Community of Democracies is an important global platform for exchange of experiences and consultations toward building and strengthening of democratic order inside the countries as well as in the international system. The members of the Community of Democracies are countries who meet democratic standards worked out and adopted at Community’s summits in Warsaw in 2000 and in Seoul in 2002.
The action plan will aim at being a model that can be adapted by education ministries worldwide to suit each country’s particular cultural context.  Such an Action Plan will be a crucial, concrete step that governments can take to make democracy education a vital part of their democratic consolidations. Citizens that are educated about their rights and responsibilities within a democratic regime will help to ensure that democracy takes root during fragile transitions.
Street Law South Africa has been asked to present its experience of presenting democracy education programs in the informal public sector since the inception of our Democracy for All program in the early 1990’s. We will also share how Street Law participated in the curriculum development process nationally and provincially after 1994 in South Africa to ensure the inclusion of democracy and human rights education in the formal school curriculum.