Trade and Industry Minister Rob Davies. Picture: GCIS
Trade and Industry Minister Rob Davies. Picture: GCIS

MPs who are trying to pass a debt relief bill last week lambasted the Department of Trade and Industry (DTI), the National Credit Regulator (NCR) and the National Consumer Tribunal (NCT) for an "appalling" submission on the proposed bill.

The chairperson of the portfolio committee on trade and industry, Joanmariae Fubbs, who described the presentation made by acting deputy-director general Macdonald Netshitenzhe as "an insult to the committee", said the committee would write to the minister of trade and industry to make him aware of its disapproval of the joint submission by the department, the regulator and the tribunal.

MPs from across the board were unanimous in their criticism. The DA’s Dean Macpherson said the presentation was the worst he had listened to or seen on paper in the four years he had served on the committee. "For a bill that is so important, what was tabled is wholly insufficient. It shows that the department has not taken the bill seriously and that it has not sought the legal advice it should have."

Macpherson was especially scathing of statements made by Netshitenzhe including that "legal opinions are just legal opinions; we should leave it up to the courts" and "technicians should not contradict their political principals".

"That is not the way to formulate legislation," Macpherson said. "It is this very stance that has led to so much legislation being overturned by the courts and referred back to Parliament because you, DG, do not want to say to your principals, ‘I think you should do x and y.’

"For you to say the lack of constitutionality of the bill should not frustrate this process … makes me furious. Parliament should always be looking to uphold and defend the Constitution," he said.

Numerous stakeholders, from debt counsellors and debt collectors, to microlenders and banks, have claimed that the bill is unconstitutional. Some have argued that debt is the "property" and therefore no one but the owner of the property can extinguish the debt. The bill proposes that reckless lending be criminalised and also criminalises debt counsellors who fail to investigate reckless credit and consumers who are in breach of an order issued by the tribunal. But in terms of the Constitution, failure to pay a debt is not a criminal offence. Other stakeholders have cautioned that the bill creates separate classes of citizens, favouring those who have more debt than others, which is unconstitutional and against the spirit of the National Credit Act.

ANC MP Adrian Williams agreed with Macpherson that the presentation did not help the committee and called for a "comprehensive answer to the public hearings that were received".

"With regards to the constitutionality, we need a legal opinion and not just the opinion of the DTI. From the public hearings, the issues around the constitutionality of this bill were technical and I want an opinion from a lawyer who says this is what was raised and these are the arguments we could use to get this bill through, not just, ‘Well, the banks write off money already and therefore our bill must be constitutional.’"

The DA’s Ghaleb Cachalia said the presentation was "particularly thin". "On your point about technicians not contradicting principals. Technicians are there to inform principals with technical knowledge, and if the facts and figures contradict what the principals have in their minds, then it is valuable input. There’s nothing in this document which addresses any of the unintended consequences that may arise out of this bill. That is what we should be applying our minds to. And you in the DTI should be leading that line of inquiry. This committee has heard a number of particularly good presentations. Pregnant with facts and figures, arguments for and against, and questions. You address none of these."

The EFF’s Elsabe Natasha Ntlangwini said her time would have been better spent watching President Jacob Zuma’s interview with the SABC. "No disrespect to the person who delivered the presentation, but come back with a more concrete presentation."

In closing, Fubbs said the presentation was "appalling" and should be redone and not reworked. "We genuinely want to hear from the DTI, NCR and NCT: what is your considered and informed opinion and for what reason? Where it requires legal constitutional expertise, get it! It’s not sufficient for us to know that you support the spirit of the bill. If this had gone to court, the court would have found that you had not applied your minds. So, I must rule that a letter be sent to the minister informing him of the committee’s conclusions on the presentation and requesting that the DTI, NCR and NCT return with a presentation that can add value, substantively to what we are doing."

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