352 Kritiese evaluasie van die toepassingsveld van die “National Credit Act”* 1 PN Stoop B Com LLB LLM Lektor, Departement Handelsreg, Universiteit van Suid-Afrika SUMMARY A critical evaluation of the National Credit Act’s field of application The National Credit Act came into force on 1 June 2007. It offers greater protec- tion and has a wider field of application than its predecessors. In order for a transaction to qualify as a credit agreement in terms of this Act, it must fall within the scope of the different credit agreements which are credit transac- tions, credit facilities, credit guarantees or a combination thereof. Basically, the Act applies to all credit agreements between parties dealing at arm’s length and made, or having an effect within the Republic of South Africa, except where an exclusion applies. The purpose of distinguishing between different credit agreements and the three categories thereof, small, intermediate and large, is to determine whether an agreement falls within the scope of the Act and to sim- plify regulation. Different requirements and rules of the Act apply to the differ- ent classes and types of transactions. Two essential elements of a credit agree- ment which should be present in order for the Act to apply are: (i) deferred payment or repayment; and (ii) a fee, charge or interest imposed with respect to the deferred payment. The distinction between the different credit agree- ments can be problematic. Some of the issues which have been identified are with regards to the distinction between a credit facility and an instalment agreement, which is a credit transaction; between a discount transaction and incidental credit; and between lease agreements and instalment agreements, which are credit transactions. Furthermore, there are ambiguities which include whether interest, fees or charges should be imposed in instances of secured loans and mortgages as the Act is silent on this. A number of anomalies come to light when referring to the definitions of “mortgage” and “secured loans” and it is also unclear which agreements should be included in “secured loans”. The last ambiguity refers to the classification of a credit guarantee as a small, large or intermediate credit agreement. These issues, anomalies and ambiguities in the Act and its field of application are discussed and analysed. 1 I nleiding Die kredietmark wat die afgelope 40 jaar in Suid-Afrika (SA) ontwikkel het, word deur ’n tekort aan deursigtigheid, beperkte mededinging, hoë koste ________________________ * Hierdie artikel is ’n verwerking uit ’n Verbruikersbeskerming 881-werkstuk, ter gedeeltelike vervulling van die vereistes van die graad LLM (Kontraktereg). Hier- mee betuig ek my opregte dank teenoor Mnr S Renke (UP) vir die hulp met die werkstuk. 1 34 of 2005 (net beskikbaar in Engels).