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    Debt Settlement Agreement South Africa

    Thursday 16th September 2021

    The Supreme Court of Appeal found that if the underlying reason for a transaction does not fall within the parameters of the National Credit Act (NCA), the transaction agreement cannot logically be transformed into a credit agreement under the ACA. The underlying cause (in this case the lease) is essential, because the compromise (comparison) remains linked to the underlying cause. Explicit references to the settlement agreement or debt recognition are important to associate them with this cause. This debt settlement agreement (the “Agreement”) sets out the terms that govern the contractual agreement between [the enterprise] having its registered office at [ADDRESS] (the debtor) and [the company] having its registered office [address] (the “creditors”) that agree to be bound by this agreement. Therefore, the Tribunal found that if the agreement did not settle a case before the courts, it did not seem permissible or appropriate for the parties to occupy their agreement with these consequences. Even if the above legal situation has not been directly confirmed by either the Supreme Court or the Constitutional Court and seems in principle correct, it remains to be seen whether it will lead to unnecessary double procedures and will have an impact on the rather overcrowded judicial roles in the various departments. The SCA therefore decided that “if the acknowledgements of liability are made in such a way as to interrupt the course of limitation in accordance with Article 14 of the Statute of Limitations, such confirmations should be allowed, even if they are unharmed during the settlement negotiations, but only for the purpose of interrupting the limitation period. The exception itself is not absolute and depends on the facts of each case. And nothing prevents the parties from explicitly or implicitly ousting him in their conversations. What the exceptions allow is to prevent the rule of prejudice and the protection of a creditor. The loan remains protected to the extent that it attests to the existence and quantum of the debt in question. Does the partial payment of a debt “in full and final payment” prevent the beneficiary from demanding payment of the balance? SCA in KLD Residential CC v Empire Earth Investments 17 (Pty) (1135/2016) [2017] ZASCA 98 3 All 739 SCA; 2017 (6) SA (6 July 2017) introduced the limitation period as another limited exceptional circumstance in which it would be acceptable for the Court to allow negotiations as evidence in a courtroom without prejudice.

    The SCA stated: “If a debtor acknowledges the indebtedness of a creditor, including in the context of settlement negotiations without prejudice, recognition as evidence may be admitted only for the purpose of interrupting the expiry of the limitation period within the meaning of section 14 of Act 68 1969.” Section 14(1) of Act 68 1969 provides that the establishment of limitation periods is interrupted by express or tacit recognition by the debtor. Article 14(2) provides that in the event of interruption of the prescription operation referred to in paragraph 1, the limitation period shall continue to run from the date of interruption. KLD Residential CC`s SCA v Empire Earth Investments stated that “the underlying reason for Section 14 of the Ordinance Act is that in the event of an acknowledgement of liability, there is no uncertainty on the part of the debtor as to the existence of the debt.” In addition, the Court referred to the statements of other judges in the following cases: it is increasingly common for the parties at issue to reach a settlement either before the opening of judicial proceedings or before their conclusion. . . .


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