Nomsa Motshegare, the NCR’s chief executive, said yesterday that the ruling would result in consumers giving banks permission to transfer funds from savings accounts in order to honour credit debts.
“The NCR welcomes this judgment, as it protects consumers from financial difficulties caused by the arbitrary transfer of funds from their accounts by banks,” said Motshegare.
Two years ago, the NCR took Standard Bank to task for debiting accounts of customers without their permission based on a loophole in the application of the common law principle called set-off.
The NCR approached the court for a declaratory order to clarify whether sections 90 and 124 of the National Credit Act (NCA) rendered the common right of law set-off applicable in credit agreements.
The common law set-off principle permits the bank to debit money immediately from a client's account as soon as there is money without authorisation and any amount the bank considers to be due to it.
“Banks should obtain permission from consumers before transferring funds from consumers’ accounts to pay amounts due under credit agreements,” Motshegare said.
Judge Raylene Keightley on Friday ruled that section 124 excludes the operation of the common law set-off in all credit agreements that are regulated by the NCA. “While set-off provides a means by which the consumer/debtor can avoid defaulting on his/her debt, there is no need why he/she should be excluded from the process. It seems to me to be precisely for this reason that section 124 preserves a system of set-off, but requires the consent of the consumer before it can be affected,” said Judge Keightley.
Standard Bank had opposed the NCR’s application arguing that in a credit agreement the set-off principle was important in the banking industry, as it allowed it to recover the debt as soon as the creditor's account was in its favour.
The South African Human Rights Commission was a friend of the court in the case, arguing that the set-off principle negatively impacted basic rights, including socio-economic rights.
Cliff Johnson, the vice-chairperson of the National Consumer Union, which represents millions of consumers, said the ruling was good news for consumers.
“It means that banks can no longer take money deposited into your account and use it to offset outstanding debt you might have on a credit agreement with the same bank, without your express permission,” he said.
Johnson said the ruling had reaffirmed the duty of care the banks must exercise over the money they keep on behalf of consumers.