SERI has taken note of the Constitutional Court’s decision in Kubyana v Standard Bank, handed down on 20 February 2014. SERI respects the decision of the Court. However, we remain concerned that the decision may not do enough to protect distressed consumers who have fallen into arrears on their credit agreements and who are genuinely in need of debt counselling and other alternative dispute resolution mechanisms. These options are a debtor’s last hope of consensually resolving disputes which may result in money judgments being taken against them, perhaps leading to the loss of a home, or other property vital to their well-being.
SERI considers that it is credit providers – who are as a rule extremely well-resourced – that are best placed to ensure that every reasonable effort is made to inform a distressed consumer of his or her options, and the rights flowing from them. Distressed consumers should not be required to say why they did not know of rights that were never explained to them. More than anything else, those in distress - whether economic, social or personal - deserve to be treated with dignity, sympathy and respect in the credit agreement enforcement process.