Economic empowerment through business loans - A critical look at credit protection law for small, micro and medium enterprises in South Africa and Australia

Master Thesis


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a) Overview The question to be answered in this dissertation is whether the National Credit Act 34 of 2005 (the NCA), promotes or impedes the sustainable growth of the South African economy. This question will be answered through exploring the importance of the contribution made by small, micro and medium enterprises (SMMEs) to the economy. This research question is premised on the findings in structural change theory of development economics.1 This theory advances the view that for a developing country to obtain sustainable growth of its economy there needs to be a decline in the number of microenterprises over a period of years and an increase in the number small and medium enterprises (SMEs). 2 This dissertation interrogates whether the NCA supports this kind of sustainable growth of the South African economy. The hypothesis proposes that the NCA impedes the sustainable economic development of South Africa. In support of this, I have examined the NCA and the protection that it affords to SMEs in South Africa. Specifically, I have examined the extent to which the NCA permits lending to SMEs by financiers, in contrast to the permission given to financiers to lend to microenterprises. In addition, I have examined the extent to which the NCA protects SME borrowers in cases where the SME qualifies for a loan, so bringing it within the provisions of NCA. This is then contrasted with the protection extended by the provisions of the NCA to microenterprises. In this investigation, I have undertaken a review of case law in South Africa to substantiate my view that the NCA inhibits sustainable growth of the South African economy. The decisions raise some important considerations, including problems caused by the concept of separate legal personality of juristic persons run by an individual in the context of borrowing, the extent to which credit guarantees offered by these individual owners should be legally enforceable and the ambiguity of developmental loans envisaged by the NCA. To address these problems, I have looked to foreign jurisprudence, especially the legal protection offered to SMEs in Australia when taking out a loan. A comparison between South African law and Australian law suggests how access to credit by SMEs and microenterprises can be improved to ensure sustainable economic growth of the economy. b) Research Methodology A doctrinal, desktop-based research method is used. The main documentary data analysed to answer the research question is primary legislation, specifically the NCA and the Usury Act 73 of 1968. Secondary sources, such as commentaries and publications by various researchers will be explored. Further documentary data will include empirical data collected in secondary sources. Other persuasive legal texts will be utilised, such as the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC), The Australian National Consumer Credit Protection Act 2009 (the ACCPA) as well as the Australian Code of Banking Practice (the COBP) c) Limitations to the Study The main limitation to this dissertation has been determining the exact number of SMMEs that exist in South Africa. Studies so far undertaken have used different methodologies and research strategies and their objectives may have differed to the objectives of this paper.3 Despite the growing amount of literature and research that is being conducted regarding SMMEs, there is still very little known about them. This is largely a result of the high number of unregistered SMMEs that exist. A further limitation on the research is that each survey contains different definitions of small, micro and medium business. For example, the South African General Entrepreneurial Monitor (GEM) measures different types of entrepreneurship and not the number of businesses to enable international comparisons. In contrast the department of trade and industry’s (DTI) definition of small business is used to determine the number of small businesses in South Africa; and this is the definition used in the National Small Business Act 102 of 1996 (the Small Business Act).