Usury Act, 1968 (Act No. 73 of 1968)1. Definitions |
In this Act, unless the context otherwise indicates—
means a rate calculated by expressing the annual finance charges as a percentage of the principal debt;
means a rate calculated by multiplying the finance charge rate per period by the number of such periods in one year;
means, in relation to movable property leased in terms of a leasing transaction, the money value of such property at the expiry of the lease, as determined by the lessor at the time of the conclusion of such transaction;
means any person to whom a moneylender has granted a loan of a sum of money in terms of a money lending transaction, or any person to whom, whether by delegation, cession or otherwise, the rights and obligations of a borrower in respect of a money lending transaction have passed;
means the person having the executive authority within a regulatory institution;
means any document of identification, irrespective of the form thereof, issued in connection with a credit card scheme by a manager to a credit card holder;
means a credit card holder referred to in the definition of credit card scheme;
means any arrangement or scheme under which—
| (a) | any person (in this definition referred to as a manager) carrying on such arrangement or scheme— |
| (i) | authorises any person (in this definition referred to as a credit card holder) in terms of, and on the conditions of, an agreement between the manager and the credit card holder— |
| (aa) | to purchase any goods or obtain any services on the strength of a valid credit card issued to him by such manager from any person (in this definition referred to as a supplier) authorised by such manager in terms of, and on the conditions of, an agreement between such manager and the supplier to sell goods or render services to any such credit card holder on the strength of a valid credit card issued to him by such manager; |
| (bb) | to obtain an amount of cash from such manager on the strength of a valid credit card issued to him by such manager; |
| (ii) | in terms of, and on the conditions of, an agreement between himself and a supplier, undertakes to pay for any goods purchased or services obtained from such supplier by a credit card holder, or for any rights in any agreement for the purchase or obtaining of such goods or services, on the strength of a valid credit card issued to him by such manager; |
| (b) | a supplier in terms of, and on the conditions of, an agreement between himself and a manager undertakes to sell goods or render services to a credit card holder on the strength of a valid credit card issued to him by such manager; |
| (c) | a credit card holder in terms of, and on the conditions of, an agreement between himself and a manager undertakes— |
| (i) | to pay to such manager any amount paid by such manager to a supplier in respect of goods sold or services rendered by such supplier to such credit card holder, or in respect of any rights in any agreement for the purchase or obtaining of such goods or services, on the strength of a valid credit card issued to him by such manager; |
| (ii) | to repay to such manager any amount of cash obtained by such credit card holder from such manager on the strength of a valid credit card issued to him by such manager; |
means any person who is granting or has granted credit to a prospective credit receiver or to a credit receiver in terms of a credit transaction, or any person to whom, whether by delegation, cession or otherwise, the rights or the rights and obligations of a credit grantor in respect of a credit transaction have passed;
means any person to whom a credit grantor has granted credit in terms of a credit transaction, or any person to whom, whether by delegation, cession or otherwise, the rights and obligations of a credit receiver in respect of a credit transaction have passed;
means any transaction, whatever its form may be, and whether or not it forms part of another transaction, by which—
| (a) | a credit grantor sells or supplies to a credit receiver movable property or services, against payment by the credit receiver to the credit grantor of a sum of money; or |
| (b) | a credit grantor transfers or grants to a credit receiver the use or enjoyment of movable property or services against payment by the credit receiver to the credit grantor of a sum of money; |
means—
| (a) | a debenture created and issued in terms of, and in respect of which the person issuing it has complied with, the provisions of the Companies Act, 1973 (Act No. 61 of 1973); |
| (b) | a security as defined in section 1(1) of the Exchequer and Audit Act, 1975 (Act No. 66 of 1975); |
| (c) | any bill, bond, security or any other document issued as evidence of the borrowing of money by any institution, council or body contemplated in section 84(1)(f) of the Republic of South Africa Constitution Act, 1961 (Act No. 32 of 1961), or by the Electricity Supply Commission or the Rand Water Board or by any other institution, council or body designated for the purposes of this paragraph by the Registrar by notice in the Gazette; |
means, in relation to an instrument of debt, the registry in which such instrument of debt may properly be registered; and "registrar of deeds" used in that connection has a corresponding meaning;
means the total of any valuable consideration, which a borrower or credit receiver or lessee has given or is owing, whether as part of the principal debt or otherwise, directly or indirectly, to a moneylender or credit grantor or lessor or to or on behalf of any intermediary between himself and a moneylender or credit grantor or lessor in terms of a money lending transaction or a credit transaction or a leasing transaction, and includes, in the case of an agreement in terms of which goods are sold under a condition of repurchase of such goods at a higher price, the difference between the higher price at which the goods are repurchased and the lower price at which the goods are sold, but does not include—
| (a) | a ledger fee; |
| (b) | any amount referred to in section 5(1)(b); |
| (c) | the costs referred to in section 5(1)(e) or (f); |
| (d) | the costs of repair and maintenance of the movable property leased in terms of a leasing transaction; |
| (e) | any valuable consideration specifically included in the principal debt by this Act; |
| (f) | any underwriting fee; |
| (g) | any amount or costs referred to in section 5A(1)(a) or (c); |
means the rate at which finance charges are levied at the end of a period on the balance of the principal debt then owing;
means a money lending transaction—
| (a) | where the moneylender is registered as a bank in terms of the Banks Act, 1965 (Act No. 23 of 1965), or as a mutual building society in terms of the Mutual Building Societies Act, 1965 (Act No. 24 of 1965), or as a building society in terms of the Building Societies Act, 1986 (Act No. 82 of 1986), or any other person or body approved by the Minister by notice in the Gazette; |
| (b) | concluded in terms of a written agreement between the borrower and the moneylender; |
| (c) | where the loan is secured wholly by a first mortgage bond, or a mortgage bond ranking pari passu with a first mortgage bond, over immovable property; and |
| (d) | where such property is used or is intended to be used primarily for residential purposes, or where such property is owned by an ecclesiastical, charitable or educational institution of a public nature which is prohibited by its constitution or any law from distributing any of its income to its members; |
means any person appointed in terms of section 13;
means a written contract or agreement or other document containing the terms and conditions of any contract or agreement in connection with a money lending transaction or a credit transaction or a leasing transaction;
means any director, manager or employee of, and any person who acts on behalf of, a moneylender or a credit grantor or a lessor, and any person, except the moneylender or the credit grantor or the lessor concerned, who receives an application from any person who intends to borrow money in terms of a money lending transaction or to obtain credit in terms of a credit transaction or to lease movable property in terms of a leasing transaction, or who in any manner acts on behalf of any person so intending in any negotiations relating to such loan, obtaining or lease;
means any transaction, whatever its form may be, and whether or not it forms part of another transaction, by which--
| (a) | a lessor leases movable property to a lessee; and |
| (b) | the amount which is owing or will be owed by a lessee to a lessor in connection with a transaction referred to in paragraph (a), is payable or will be payable after the date of the conclusion of the said transaction; |
means a fee charged by—
| (a) | a banking institution as defined in section 1(1) of the Banks Act, 1965 (Act No. 23 of 1965), for keeping on behalf of a client a cheque account from which withdrawals may be made by such client by means of a cheque which is eligible for clearing through the clearing house system of the clearing banks of South Africa and which is so charged whether the account shows a debit balance or a credit balance; or |
| (b) | a banking institution contemplated in paragraph (a) (or its wholly-owned subsidiary) for the issue and use of a credit card in terms of a credit card scheme operated by such banking institution or wholly-owned subsidiary as manager of such scheme; |
means any person who leases movable property in terms of a leasing transaction, and includes any person to whom, whether by delegation, cession or otherwise, the rights and obligations of a lessee in respect of a leasing transaction, have passed;
means any person who leases or has leased movable property to a lessee in terms of a leasing transaction, and includes any person to whom, whether by delegation, cession or otherwise, the rights or the rights and obligations of a lessor in respect of a leasing transaction have passed;
in relation to a credit card scheme, means a manager referred to in the definition of credit card scheme;
means the Minister of Trade and Industry;
means—
| (a) | any person who is granting or has granted a loan of a sum of money to a prospective borrower or to a borrower in terms of a money lending transaction; |
| (b) | any person to whom, whether by delegation, cession or otherwise, the rights or the rights and obligations of a moneylender in respect of a money lending transaction have passed; |
| (c) | the holder of an instrument of debt executed in respect of a money lending transaction; |
| (d) | any manager; |
means any transaction which, whatever its form may be, and whether or not it forms part of another transaction, is substantially one of money lending, and includes—
| (a) | any agreement in terms of which goods are sold under a condition of repurchase of such goods at a higher price, in which case the lower price at which the goods are sold shall for the purposes of this Act be deemed to be a sum of money lent; |
| (b) | any transaction under which goods are purchased by or services are rendered to or any amount of cash is obtained by a credit card holder in terms of a credit card scheme, in which case the price at which the goods are so purchased or such services are so rendered or such amount of cash is so obtained shall for the purposes of this Act be deemed to be a sum of money lent by the manager concerned to such credit card holder; |
| (c) | any transaction under which immovable property is sold against payment by the purchaser to, or to any person on behalf of, the seller of a sum of money at a stated or determinable future date or in whole or in part in instalments over a period in the future, in which case such sum, excluding finance charges, shall for the purposes of this Act be deemed to be a sum of money lent by the seller to the purchaser, but does not include a transaction under which immovable property is sold and in terms of which— |
| (i) | no finance charges are levied by the seller on the purchase price; |
| (ii) | the full purchase price is payable against registration of the immovable property in the name of the purchaser or a transferee nominated by the purchaser; and |
| (iii) | no interim instalment is payable by the purchaser between the date of the sale and such registration, save for an initial deposit payable in one amount by the purchaser to a practising attorney or an estate agent to be held in trust pending such registration, and rent or occupational interest constituting a reasonable compensation for the use and enjoyment by the purchaser of the immovable property in question; |
| (d) | any transaction in terms of which a sum of money owing for alterations or improvements to immovable property is to be paid by a debtor at a stated or determinable future date or in whole or in part in instalments over a period in the future, in which case such sum of money shall for the purposes of this Act be deemed to be a sum of money lent to the debtor; |
means a single annual finance charge rate agreed upon at the conclusion of a money lending transaction, credit transaction or leasing transaction and which remains unaltered for the whole duration of the transaction concerned;
means, where the parties to an agreement in connection with a money lending transaction or a credit transaction or a leasing transaction have agreed that the sum of money payable in connection with the transaction—
| (a) | must be paid at a stated or determinable future date, the time that must elapse between the date upon which the transaction was concluded and the date upon which payment of the said sum of money must be made; or |
| (b) | must be paid in whole or in part in instalments over a period in the future, the time that must elapse between the date upon which the transaction was concluded and the date upon which the first instalment is payable or the time that must elapse between the dates upon which two consecutive instalments are payable; |
means, in relation to a leasing transaction, an amount which, if invested on the date of the commencement of such transaction for the duration of the transaction at the annual finance charge rate stipulated in the instrument of debt executed in connection with such transaction, shall equal on the date of expiry of such transaction the book value on such last-mentioned date of the property leased in terms of such transaction;
means in relation to—
| (a) | a money lending transaction— |
| (i) | the cash amount in money actually received by or on behalf of a borrower in terms of the said transaction; plus |
| (ii) | the costs in respect of stamp duties actually paid or to be paid by the moneylender in connection with the said transaction and which are owing to him by the borrower; plus |
| (iii) | if the moneylender is authorized thereto in terms of an agreement in writing between himself and the borrower— |
| (aa) | where the money loan is wholly or partly secured by a mortgage bond over immovable property or a notarial bond over movable property— |
| (aaa) | the costs actually paid or to be paid by the moneylender in respect of the preparation, execution and registration of the mortgage bond; |
| (bbb) | taxes, other fiscal charges and licence fees and any compulsory charge in respect of any sectional title scheme to a body corporate constituted in terms of section 28 of the Sectional Titles Act, 1971 (Act No. 66 of 1971), actually paid or to be paid by the moneylender in respect of the property concerned; |
| (ccc) | premiums actually paid or to be paid by the moneylender to an insurer registered in terms of the Insurance Act, 1943 (Act No. 27 of 1943), including an underwriter at Lloyds authorised in terms of the said Act to carry on insurance business in the Republic, in respect of an insurance policy in terms of which the property concerned is insured against loss or damage caused by fire, riot, civil disturbance, earthquake and loss of income and against any other loss or damage against which such property is ordinarily insured; |
| (bb) | premiums actually paid or to be paid by the moneylender to an insurer registered in terms of the Insurance Act, 1943, as agreed between the insured and such insurer in respect of a life policy which is ceded to the moneylender as security for the repayment of the loan; |
| (cc) | premiums actually paid or to be paid by the moneylender to an insurer registered in terms of the Insurance Act, 1943, including an underwriter at Lloyds authorized in terms of the said Act to carry on insurance business in the Republic, in respect of an insurance policy over movable property in terms of which such property is insured against loss or damage caused by fire, riot, civil disturbance, earthquake and loss of income and against any other loss or damage against which such property is ordinarily insured and which property serves as security for the repayment of the loan; |
| (dd) | premiums actually paid by a moneylender on behalf of a borrower for insurance in terms of the Compulsory Motor Vehicle Insurance Act, 1972 (Act No. 56 of 1972); |
| (ee) | amounts expended in respect of fiscal charges, stamp and transfer duties; |
| (ff) | the costs actually paid by the moneylender to a person who practices as an attorney on his own account or as a partner in a firm of attorneys or as a member of a professional company in respect of the preparation of the documents, including the instrument of debt in question and other documents for the security of the loan, embodying the money lending transaction in question; |
| (gg) | where the money loan is not wholly or partly secured by a mortgage bond over immovable property or a notarial bond over movable property, the taxes, charges, fees and premiums of the kind referred to in subparagraphs (a)(iii)(aa)(bbb) and (ccc) relating to the property which is the subject of the money loan and which were actually paid or are to be paid by the moneylender on behalf of the borrower; |
| (hh) | where the money loan referred to in subparagraph (aa) is a housing loan, the fees and premiums mentioned in paragraph 2 of the Schedule, except an administration fee, to the extent and on the conditions mentioned in the Schedule; or |
| (b) | a credit transaction— |
| (i) | the selling price of movable property or services or, if applicable, the difference between the selling price of movable property or services and the cash amount in money paid or to be paid or the reasonable value, agreed upon, of goods delivered or to be delivered by the credit receiver to the credit grantor for application in reduction of the said selling price; or |
| (ii) | the difference between the total sum of money, excluding finance charges, charged by the credit grantor for the use or enjoyment of movable property or services and the cash amount in money paid or to be paid or the reasonable value, agreed upon, of goods delivered or to be delivered by the credit receiver to the credit grantor for deduction from the said sum of money; plus |
| (iii) | the costs in respect of stamp duties actually paid or to be paid by the credit grantor in connection with the said transaction and which are owing to him by the credit receiver; plus |
| (iv) | if the credit grantor is authorized thereto in terms of an agreement in writing between himself and the credit receiver— |
| (aa) | where property is pledged under notarial bond or hypothecated under a mortgage bond over immovable property to the credit grantor as security in connection with the transaction, the costs actually paid or to be paid by the credit grantor in respect of the preparation, execution and registration of the bond; |
| (bb) | premiums actually paid or to be paid by the credit grantor to an insurer registered in terms of the Insurance Act, 1943, including an underwriter at Lloyds authorized in terms of the said Act to carry on insurance business in the Republic, in respect of an insurance policy in terms of which the property sold and any other property serving as security in connection with the said transaction are insured against loss or damage caused by fire, riot, civil disturbance, earthquake and loss of income and against any other loss or damage against which such property is ordinarily insured; |
| (cc) | premiums actually paid or to be paid by the credit grantor to an insurer registered in terms of the Insurance Act, 1943, as agreed between the insured and such insurer in respect of a life policy which is ceded to the credit grantor as security in connection with the said transaction; |
| (dd) | premiums actually paid by the credit grantor on behalf of a credit receiver for insurance in terms of the Compulsory Motor Vehicle Insurance Act, 1972; |
| (ee) | taxes, other fiscal charges and licence fees which may be payable in connection with the said transaction and which were actually paid or to be paid by the credit grantor; |
| (ff) | the costs actually paid by the credit grantor to a person who practices as an attorney on his own account or as a partner in a firm of attorneys or as a member of a professional company in respect of the preparation of the documents, including the instrument of debt in question and other documents for the security of the debt, embodying the credit transaction in question; or |
| (c) | a leasing transaction— |
| (i) | the difference between— |
| (aa) | the cash price at which the movable property leased in terms of such transaction is normally sold by the lessor on the date on which such transaction is entered into or, where the lessor is not a trader normally selling such movable property, the market value of such movable property or, when applicable, the money value determined in terms of section 6K in respect of such movable property; and |
| (bb) | the sum of— |
| (aaa) | the cash amount in money paid or to be paid on the date of such transaction by or on behalf of the lessee to or on behalf of the lessor; and |
| (bbb) | the reasonable value agreed upon of property delivered or to be delivered by the lessee to the lessor for application in reduction of the cash price, market value or money value referred to in paragraph (i)(aa); and |
| (ccc) | the present value of the book value of the property leased in terms of such transaction; plus |
| (ii) | the costs in respect of stamp duties actually paid or to be paid by the lessor in connection with such transaction and owing to him by the lessee; plus |
| (iii) | if the lessor is authorized thereto in terms of an agreement in writing between himself and the lessee— |
| (aa) | where property is pledged in terms of a notarial bond or hypothecated under a mortgage bond over immovable property to the lessor as security in connection with such transaction, the costs actually paid or to be paid by the lessor in respect of the preparation, execution and registration of the bond; |
| (bb) | premiums actually paid or to be paid by the lessor to an insurer registered in terms of the Insurance Act, 1943, including an underwriter at Lloyds authorized in terms of the said Act to carry on insurance business in the Republic, in respect of an insurance policy in terms of which the property leased and any other property serving as security in connection with the said transaction are insured against loss or damage caused by fire, riot, civil disturbance, earthquake and loss of income and against any other loss or damage against which such property is ordinarily insured; |
| (cc) | premiums actually paid or to be paid by the lessor to an insurer registered in terms of the Insurance Act, 1943, as agreed between the insured and such insurer in respect of a life policy which is ceded to the lessor as security in connection with the said transaction; |
| (dd) | premiums actually paid by a lessor on behalf of a lessee for insurance in terms of the Compulsory Motor Vehicle Insurance Act, 1972; |
| (ee) | taxes, other fiscal charges and licence fees payable in connection with the said transaction actually paid or to be paid by the lessor, |
| (ff) | the costs actually paid by the lessor to a person who practices as an attorney on his own account or as a partner in a firm of attorneys or as a member of a professional company in respect of the preparation of the documents, including the instrument of debt in question and other documents for the security of the debt, embodying the leasing transaction in question; |
means the executive officer mentioned in section 1 of the Financial Services Board Act, 1990, or, as the Minister may deem fit, a person appointed by him as registrar subject to the provisions of the Public Service Act, 1994 (Act No. 111 of 1984);
means a regulation in force under this Act;
means a legal entity approved as such by the Minister in terms of any regulation or notice promulgated under this definition
means payments made by way of a series of equal instalments at the end of equal consecutive periods, not longer than one year each, as from the date upon which a money lending transaction or a credit transaction or a leasing transaction was concluded: Provided that for the purposes of this definition—
| (a) | the instalments shall be deemed to be equal if all the instalments in the series of instalments are equal except one which does not differ from the other instalments in the series of instalments by more than ten percent; |
| (a) | the periods shall be deemed to be equal if all the periods are of the same duration except the first period if the first period does not differ by more than one half of the duration of any of the other periods where those other periods are not longer than one month each and by not more than one month where those other periods are longer than one month each; |
[Definition deleted by Act No. 49 of 1996]
in relation to a credit card scheme, means a supplier referred to in the definition of a credit card scheme;
[Definition deleted by Act No. 49 of 1996]
includes the regulations and any notice issued thereunder;
means any fee charged by a person in terms of an agreement in writing between such person and any person issuing debentures in terms of which the first-mentioned person undertakes to subscribe to any debentures so issued having an aggregate issued price of not less than R250 000 if such debentures are not subscribed to by any other person, and which fee is charged and payable when all such debentures have been subscribed to;
means a single finance charge rate agreed upon at the conclusion of a money lending transaction, credit transaction or leasing transaction, and which may be altered during the duration of the transaction concerned.