Riccardo Petersen (ZA)

Firm/Organization: Norton Rose Fulbright

Blogs: Financial Institutions Legal Snapshot, Financial services: Regulation tomorrow

Latest Articles

A settlement agreement is not governed by the National Credit Act if the underlying dispute is not

By Riccardo Petersen (ZA) on April 4, 2019

The Supreme Court of Appeal found that if the underlying cause of a settlement does not fall within the parameters of the National Credit Act (NCA), then the settlement agreement cannot logically be converted to a credit agreement under the NCA. The underlying cause (in this case the rental agreement) is of vital significance because the compromise (settlement) remains linked to the underlying cause. The express references in the settlement agreement or acknowledgement of debt…

Financial Institutions Legal Snapshot

Appeal court reluctantly finds a once-off loan requires registration as credit provider

By Riccardo Petersen (ZA) on October 3, 2018

The appeal court has found that the requirement to register as a credit provider is applicable to all credit agreements once the prescribed threshold is reached (currently zero), irrespective of whether the credit provider is involved in the credit industry and irrespective of whether the credit agreement is a once-off transaction. The appeal court reluctantly adopted this approach which is clear from the remarks made in the judgment – that this is an imperfect…

Financial Institutions Legal Snapshot

Prove liquidation claims in three months

By Riccardo Petersen (ZA) on November 21, 2016

If a company goes into liquidation claims must be lodged and proved within three months as from the conclusion of the second meeting of creditors of the insolvent company. The case of Wishart v Billiton is a reminder that although the Companies Act 1973 was largely repealed, the provisions relating to winding-up of companies remain in force until a comprehensive insolvency law is enacted. Section 44(1) of the Insolvency Act is applicable to claims against companies…

Financial Institutions Legal Snapshot

Constitutional Court declares that emolument attachment orders need court consent

By Riccardo Petersen (ZA) on September 20, 2016

In our blogs from July 2015 and August 2015 we dealt with the High Court’s judgment declaring certain aspects of the long-established but often abused debt collecting process of emolument attachment orders unlawful. On 13 September 2016, the Constitutional Court confirmed that changes must be effected to section 65J (2)(a) and (b) of the Magistrates Courts’ Act (MCA), so the court and not the clerk of the court can issue the order, ensure that it…

Financial Institutions Legal Snapshot

Registration as credit provider – Final determination threshold set at zero

By Riccardo Petersen (ZA) on June 7, 2016

On 11 May 2016, the Department of Trade and Industry announced in Government Gazette 39981 that the new credit provider registration threshold will be Nil (R0). Is the threshold rational and reasonable? If the threshold is not rational, credit providers whose credit agreements are to be declared void may be able to challenge the threshold. The essence of the newly set threshold is that any person who grants credit within the ambit of the National…

Financial Institutions Legal Snapshot

Extra-territorial application of NCA to offshore credit agreements

By Riccardo Petersen (ZA) on May 25, 2016

A settlement agreement concluded outside South Africa between a foreign company and a person resident in the United Kingdom that was concluded completely outside the South African credit market and has no bearing on accessibility to credit by South Africans or the nature of credit products available within South Africa does not “have an effect within” South Africa and is consequently not regulated by the National Credit Act (NCA). In Sunrock Limited v Louis and …

Financial Institutions Legal Snapshot

Shareholder has no claim for company’s loss

By Riccardo Petersen (ZA) on April 7, 2016

A plaintiff who was a shareholder in a liquidated company sued the company’s bank for a R50 million loss in value of his indirectly held shareholding allegedly caused by intentional conduct of the bank for lending money beyond the means of the company and then liquidating the company. The delictual claim for pure economic loss failed because no wrongfulness was proved. The plaintiff was a shareholder thrice removed from the company. The notion that a company…

Financial Institutions Legal Snapshot

Holding a director liable for the debts of a company needs proof of fraud or recklessness

By Riccardo Petersen (ZA) on October 5, 2015

Default judgment, without any evidence being led, was granted against a director under section 424(1) of the Companies Act 1973 on the basis that the business of the company was carried on recklessly or with intent to defraud creditors or for some other fraudulent purpose. No evidence was led to establish these allegations. Even though the defendant director in Minnaar v van Rooyen failed to take the steps he should have taken to defend the action,…

Financial Institutions Legal Snapshot

National Credit Act salary attachment procedure revisited

By André Vos & Riccardo Petersen (ZA) on August 6, 2015

In early July 2015 the High Court declared aspects of a long-established but often abused debt collecting process unlawful, with potential wide-ranging consequences. It could render hundreds of thousands of salary attachment orders unenforceable. In our recent blog post we highlighted the findings of what is known as the Desai Judgment (after the judge who wrote it). On 20 July 2015 the Department of Justice and Constitutional Development announced that it is working on an…

Financial Institutions Legal Snapshot

Salary attachment procedure declared unconstitutional

By André Vos & Riccardo Petersen (ZA) on July 10, 2015

The High Court has declared aspects of a long-established but often abused debt collection process unlawful, with potentially wide ranging consequences, as it could render hundreds of thousands of salary attachment orders unenforceable. Aspects of a salary attachment process, known as an emoluments attachment order (EAO), was declared unconstitutional in The University of Stellenbosch Legal Aid Clinic v The Minister of Justice and Correctional Services on 8 July 2015. In summary, the court found that:…

Riccardo Petersen (ZA)

A settlement agreement is not governed by the National Credit Act if the underlying dispute is not

Appeal court reluctantly finds a once-off loan requires registration as credit provider

Prove liquidation claims in three months

Constitutional Court declares that emolument attachment orders need court consent

Registration as credit provider – Final determination threshold set at zero

Extra-territorial application of NCA to offshore credit agreements

Shareholder has no claim for company’s loss

Holding a director liable for the debts of a company needs proof of fraud or recklessness

National Credit Act salary attachment procedure revisited

Salary attachment procedure declared unconstitutional

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