“One of the greatest disservices you can do a man is to lend him money that he can’t pay back.” (Jesse H. Jones, entrepreneur)

A recent High Court decision provides yet another cautionary tale for lenders. The stakes are high: get this wrong, and you could lose everything.

Two big risks for lenders

Before you lend, be aware of two major risks that you need to manage. Both are imposed by the National Credit Act (NCA):

Not registering as a credit provider: If you lend money without registering when you were required to do so, your agreement will be invalid and unenforceable. You will lose everything unless you can convince a court to make a “just and equitable” order allowing you at least a partial recovery. This is by no means guaranteed, so a risk not worth taking.
As a general guideline, if your loan is made at “arm’s length” you will probably have to register. In contrast, loans not made at arm’s length – such as informal loans between family and friends, or between related companies in a group – may be excluded. But the rules are complex and our courts have had to wrestle with several borderline cases over the definition of “arm’s length”. There is no substitute for advice specific to your situation.
Note that even a single qualifying loan, of any size, can trigger the requirement. The thresholds that previously limited it to commercial lenders and to larger loans fell away in 2014 and 2016 respectively.
Reckless lending: Let’s turn now to the second risk, which applies whether you are properly registered as a credit provider or not. We’ll illustrate it with a recent High Court decision in which a family trust’s lending was held to be reckless and therefore irrecoverable.

A family trust lends R430k to a heavily indebted couple

A SAPS employee and her husband, heavily indebted to a range of creditors, approached a debt consolidation business for help in 2012.

Having carried out its version of the credit assessment required by the NCA, the debt consolidator organised a lifeline for the couple in the form of a R430,000 loan from an investor (a family trust) to pay off their debts. The loan was secured primarily by a bond over the couple’s house in Kraaifontein. A secondary security in the form of a sale agreement by the couple to the trust was to be held in reserve and activated only in need. The idea was that, after a short period of financial rehabilitation, the borrowers would refinance the loan through a bank, but that never happened.

When the borrowers defaulted on their repayments, the trust sued for R430,000 plus interest (a lot of money at 17.1% p.a. for 10 years), and an order allowing it to sell the couple’s bonded house to satisfy the debt.

The Court declared the credit agreement “reckless credit” and set it aside. The trust must now write off the balance of its loan and interest, cancel its bond over the couple’s house, and pay all the legal costs. Its only consolation is that the Court, in exercising its discretion to structure a just and equitable solution between the parties, allowed the trust to keep the R251,325 already paid to it.

What went wrong?

Why did the lender lose so badly? In a nutshell, the affordability assessment performed by the debt consolidator was flawed. Instead of asking whether the couple could afford this loan based on their existing financial means (as required by the NCA), the assessment relied on “a risky potential of future funding”, i.e., the speculative prospect of a mainstream bank granting a further loan in the future. The borrowers had always been over-indebted, this new loan made their situation even worse, and therefore the lending was reckless.

Lenders: How to avoid a “reckless lending” declaration

NCA regulations in force since 2015 set out in detail the various technical criteria and formulae to be used in assessments. This is just an overview of what you need to cover:

Perform a proper credit assessment: This is make-or-break. It is a specific and fundamental requirement of the NCA that you carry out a proper assessment before granting credit, and you must be able to prove that you did so with documentary backup if challenged.
Confirm affordability: Assess income, expenses, and existing debt, verifying everything with proper salary slips, bank statements, etc. As we saw in the case above, affordability must be assessed on the borrower’s current “financial means, prospects and obligations”, not future hopes or prospects. You must establish the borrower’s “discretionary income” by subtracting from total income all monthly deductions, living expenses and the like, with reference to a table of “norms” set out in the regulations.
Check repayment history: You must take into account the borrower’s debt repayment history under other credit agreements.
Explain everything fully to the borrower: Make sure the borrower fully understands the structure of the loan, the total costs, obligations, and risks. Use plain, non-technical language to avoid any claims of confusion or deception.
Avoid over-indebtedness: You must be able to show that the repayment plan is realistic and affordable to avoid a finding of over-indebtedness.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.