Bibliographie sélective OHADA

The purpose of this thesis is to do a comparative reappraisal of debt relief measures available to natural person debtors in the South African insolvency law. Although the broader South African natural person insolvency system currently includes three statutory debt relief procedures, namely, the sequestration procedure regulated by the Insolvency Act 24 of 1936, the administration order procedure in terms of the Magistrates Courts Act 32 of 1944 and the debt review procedure found in the National Credit Act 34 of 2005, not all natural person debtors have access to the system. The majority of this marginalised group are debtors with no income and no assets (the so-called No Income No Asset (NINA) debtors). Also, only one measure provides real debt relief in the form of a statutory discharge of debt. Furthermore, the existing measures have developed in a haphazard fashion which has led to a multiplicity of procedures, regulators and forums that resulted in ineffectiveness, inequality and uncertainty. The larger system therefore lacks proper policy considerations. This thesis provides the reasons for reform by, amongst others, arguing that the present situation is unconstitutional as it unreasonably and unfairly discriminates against the NINA group of debtors in particular. It measures the broader South African system against internationally accepted principles of efficient and effective natural person insolvency regimes. In this regard it is found that the system as a whole is seriously deficient. With reference to international principles and guidelines as well as suitable attributes found in foreign jurisdictions, the thesis concludes with suggestions for real law reform. Both substantive and procedural recommendations are made.

Nigeria currently has a non-functioning insolvency system; it is yet to record a successful insolvency case. This failure principally is attributable to the weak laws and enforcement policies in existence. The problem is exacerbated by burgeoning consumer debt in the formal sector. The causal factors for this increase in debt are negative economic growth indices such as rising inflation, interest rates and unemployment. With these indices predicted to worsen, a new Bankruptcy and Insolvency Act (BIA) was proposed in 2016. The BIA seeks to regulate individual insolvency proceedings in Nigeria. However, the BIA (as currently conceptualized) does not make provision for debtors with neither income nor assets, often referred to as No Income No Assets (NINA) debtors who, it can be argued, are in the majority in the Nigerian state. The aim in this thesis is to propose debt relief measures that cater for NINA debtors in Nigeria. This proposal aims to prevent further discrimination against these debtors in terms of the current law and the proposed BIA. It envisages that catering for NINA debtors in Nigeria will boost the Nigerian government’s drive to encourage entrepreneurship. In providing for NINA debtors it will provide a safe landing for poor debtors in the event of entrepreneurial failure. The thesis achieves its stated aim by studying international principles and guidelines as espoused by leading bodies. Furthermore, the thesis performs a comparative analysis of relevant NINA provisions in South Africa, Sweden, France, Ireland and Canada. The thesis proposes amendments to the proposed BIA in light of the aforementioned analysis and posits that procedures that are formal and extra-judicial, which have no financial requirements and are easily accessible to debtors should be incorporated.

The regulation of consumer credit in Namibia mainly is provided for by the Usury Act 73 of 1968 and the Credit Agreements Act 75 of 1980. These legislative enactments originated in South Africa and were applied in South West Africa during the period of South Africa’s mandate over what is now the Republic of Namibia. Despite the fact that these enactments are over 35 years old, they are substantially unchanged. In response to an awareness of the threat of consumer over-indebtedness and other events such as financial crises, the purpose in this thesis is to undertake a situational analysis of the debt prevention measures as provided for by the Namibian legislative framework and the extent of protection these measures afford consumers in terms of irresponsible credit and over-indebtedness. A broad survey of the policies aimed at promoting responsible lending benchmarks the Namibian consumer credit regulatory framework against the leading international best principles which have been developed in response to global economic challenges. The Namibia Financial Institutions Supervisory Authority in the 2014 Microlending Bill proposes to introduce responsible lending practices in the form of a compulsory pre-agreement assessment of the prospective consumer before providing them with credit. In a comparative investigation, the creditworthiness assessment and related measures central to the responsible lending regimes in South Africa and Australia are considered. Measuring the Namibian consumer credit regulatory framework against these recent developments, it is submitted that the current debt prevention measures are inadequate in protecting consumers from irresponsible credit lending and the risk of consumer over-indebtedness. This thesis supplies reasons for the need in Namibia to update the regulatory structure of the credit industry in order to protect consumers. As a contribution to the promotion of a culture of responsible lending in the Namibian consumer credit market, the thesis proposes the introduction of responsible lending measures in Namibia’s consumer credit legislative framework.