1.1. “Act” or “NCA” means the National Credit Act, No 34 of 2005 and Regulations published in terms of the NCA;
1.2. “agreement” means the Pre-Agreement Statement and Quotation together with these terms and conditions;
1.3. “application” means the application by the consumer for bsmart membership and a bsmart card with related credit facility or a budget facility (whichever will apply in the circumstances);
1.4. “bonus”means, subject to clause 12.2and 12.3, the amount credited to the member’s facility periodically (as determined by Cape Consumers from time to time and subject to the agreement) calculated in terms of Cape Consumers’ policies as a percentage of monthly bonus qualifying purchases paid during the period as required by Cape Consumers;
1.5. “bonus qualifying purchases” means purchases of goods and/or services that qualify for a bonus in terms of Cape Consumers’ policies;
1.6. “bsmart membership” or “membership” means the Buyers Reserve Fund membership as provided for in our Memorandum of Incorporation and Articles of Association in terms whereof we administer a buy aid for and on behalf of our members, including a rewards offering and bonus as referred to in clause 12.2.
1.7. “budget facility” (where applicable) means the portion of the credit facility that can be used by you for purchases that is repayable over an extended period agreed with us, up to a maximum of 36 months;
1.8. “Buyers Reserve Fund” means the fund established by the company, for the members in terms of the Memorandum of Incorporation;
1.9. “Cape Consumers” or “company” or “credit provider” or “us” or “we” or “our” means Cape Consumers (Pty) Ltd, Registration No. 1955/003218/07, of Atlantic Centre, 3rdFloor, 14 Christiaan Barnard Street, Cape Town and VAT no. 4320104542;
1.10. “card” or “bsmart card” means the bsmart card, a valid electronic card that Cape Consumers issues to members to use for transactions between members and retailers;
1.11. “consumer” means the person who applies to enter into an agreement with Cape Consumers for a bsmart card and/or related facility on the terms of this agreement;
1.12. “credit bureau” means any or all of the following:
1.12.1. Experian (Head Office), contact number 0861 105 665,
1.12.2. TransUnion (Head Office), contact number 0861 482 482,
1.12.3. Compuscan (Head Office), contact number 0861 514 131,
1.12.4. Expert Decision Systems (XDS) (Head Office), contact number 0860 937 000,
1.12.5. Consumer Profile Bureau (CPB) (Head Office), contact number (010) 590 9505;
1.13. “credit facility” means the credit facility linked to the bsmart card that Cape Consumers provides to members on the terms of the agreement;
1.14. “credit limit” means the maximum amount that the member may spend in a trading period as per the quotation;
1.15. “due date” means the date that payment is due for purchases made during the trading period, and which will be the last day of the month;
1.16. “facility” means the credit facility or the budget facility or both, whichever applies in the circumstances;
1.17. “levy” means the amount payable by the member on all levy qualifying purchases, calculated as a percentage of the purchase price of the goods and/or services, and which percentage may differ from retailer to retailer;
1.18. “levy qualifying purchases” means purchases of goods and/or services where a levy is payable;
1.19. “member” means a consumer who has entered into an agreement with Cape Consumers and described as a “buyer” in our Memorandum of Incorporation;
1.20. “prime rate” means the prime lending rate of First National Bank Limited;
1.21. “quotation” or “Pre-Agreement Statement and Quotation” means the written quote with specified credit limit and other information as required by the Act;
1.22. “retailer” means any supplier of goods and/or services contracted by Cape Consumers to supply goods and/or services to members against payment utilising the card and/or facility;
1.23. “trading period” means the period commencing on the 16th day of each month and terminating on the 15th day of the following month, or any other period that Cape Consumers determines from time to time.
2.1 You, the consumer, have applied for membership and a card and/or facility with Cape Consumers. Cape Consumers has provided you with a Pre-Agreement statement and Quotation in terms of the NCA and you have agreed to the terms thereof.
2.2 The NCA applies to the facility as provided for in this agreement.
2.3 Cape Consumers may allow you to apply for membership and a card and/or facility and to enter into an agreement with Cape Consumers by telephonic or electronic means, in which case the voice or electronically recorded Pre-agreement Statement and Quotation will form part of the agreement.
2.4 As part of the application process you are required to answer all questions truthfully and you agree that we may share your information with third parties, including credit bureaus for purposes of your application and your agreement with us.
2.5 If you are married in community of property, you agree that you have obtained the written consent from your spouse to apply for a facility and enter into an agreement with us.
2.6 You may conclude the agreement at any time within a 5 business day period from the date of the Pre-Agreement Statement and Quotation.
2.7 The agreement will regulate the relationship between you and Cape Consumers in relation to the membership and use of the bsmart card and/or facility.
3. STATEMENT OF ACCOUNT:
3.1 We will deliver a monthly statement of account to you by email, unless you choose to receive it by postal mail.
3.2 The statement will show:
3.2.1 the monthly membership fee;
3.2.2 the purchases for the month;
3.2.3 the total levies for the month;
3.2.4 the yearly interest rate that applies to any outstanding balance;
3.2.5 the interest for the month (if applicable);
3.2.6 the instalment due for any budget facility (if applicable);
3.2.7 the instalment due in terms of any loan agreement (if applicable);
3.2.8 the total amount due on the date that the statement is processed;
3.2.9 any other information required by the NCA.
3.3 As the member it is your duty to make sure that you receive your monthly statement. If you have not received your statement, you must inform us in writing. If you did not receive a monthly statement, for whatever reason, it does not mean that you do not have to pay the amount that is due and payable to us.
3.4 It is important that you check your monthly statement to make sure that it is correct. If you do not agree with any item or entry on the monthly statement, you must write to us within 30 (THIRTY) days of the date of the statement and inform us why you do not agree in order for us to investigate it, obtain the relevant documents and make the necessary enquiries. In the interim you must still pay the full amount due to us as shown on your monthly statement. If there was indeed an error, we will refund you the amount that we owe to you.
4.1 You must pay the full amount due as per your monthly statement of account on the last day of the month for which the statement applies.
4.2 Unless otherwise agreed in writing, the debit order authorization (if applicable) shall continue until the total amount due in terms of the agreement is repaid in full and you agree not to (i) cancel the debit order; (ii) close the bank account; or (iii) allow your salary to be paid into another bank account before the total amount due in terms of the agreement has been paid in full.
5. DEFAULT ADMINISTRATION COSTS:
If you do not pay by the due date, we will charge you default administration costs as provided for in terms of the NCA, which includes permissible charges in terms of the relevant rules of the Magistrates' Court Act 32 of 1944; the Superior Courts Act 10 of 2013 and Debt Collectors Act 114 of 1998.
6. EARLY SETTLEMENT:
You may settle the total outstanding balance, whether due or not, at any time prior to the last day of the month. You do not need to inform us in advance, but if you want to settle the full outstanding balance, you must pay us the total unpaid balance of the principal debt at the time, as well as any unpaid interest and all other fees and charges owing to us on the date that you settle the full outstanding balance.
7. MEMBER’S RIGHT TO CANCEL:
7.1 You may cancel the agreement by paying the total amount owing to us, in terms of clause 6.
7.2 Before you make the final payment, you must request the total amount owing to us and we will confirm the amount either telephonically, or via fax or e-mail.
7.3 Please confirm to us in writing if you intend to cancel the agreement.
8. ADDRESS FOR NOTICE:
8.1 Cape Consumers choose the address on the application form, as the address where we will accept all documents, pleadings and notices from you in connection with the agreement.
8.2 You choose the residential address on the application form, as your domicilium citande et executandi (the address where a summons or other legal documents or notices will be delivered to you) to accept service of all documents, pleadings and notices from us in connection with the agreement.
8.3 Any party that wants to change the addresses for this purpose must notify the other party in writing what the new address will be.
9. CREDIT LIMIT AND/OR BUDGET LIMIT DECREASE:
You may at any time request in writing that we reduce or set a maximum limit for your facility.
10. CREDIT BUREAU INFORMATION:
You confirm, agree and acknowledge that:
10.1 we may send information about your application, granting and termination of your facility, and your agreement with us, to any credit bureau and the credit bureau may share the information with other parties such as registered credit providers;
10.2 we may find, verify and receive information from other registered credit providers, when we consider your application or credit worthiness;
10.3 we may make enquiries with third parties to confirm whether the information that you supplied during the application process or at any time during the term of the agreement, is correct;
10.4 if you do not comply with the agreement, we will report this to the credit bureau;
10.5 the credit bureau provides a credit profile and a credit score on your credit worthiness;
10.6 we can obtain and disclose the above information to any third party if:
10.6.1 it may be to your benefit;
10.6.2 we must do it in terms of the law;
10.6.3 we believe that it is in our or the public’s interest to disclose the information;
10.7 when required, we may disclose your personal information to the credit bureau. All subscribers to the credit bureau have access to the information;
10.8 you can contact the credit bureau and request that your information be disclosed to you and request that the credit bureau corrects any wrong information;
10.9 you may also file any complaints with the National Credit Regulator on 0860 627 627 or contact the National Credit Tribunal.
11. GENERAL USE OF THE CARD AND/OR FACILITY:
11.1 Cape Consumers will pay the retailer who supplied goods and/or services to you in consideration for payment through use of the card, or written or other instruction and authority by you to the retailer authorising and mandating such retailer to claim payment against your facility, on your behalf when Cape Consumers receives a valid claim from the retailer.
11.2 Cape Consumers will issue a bsmart card to you once you have entered into the agreement with us. At your request, we may agree to issue cards to one or more of the persons that you have nominated. You remain responsible for all amounts owing through the use of the main and additional cards. Your credit or budget limit will not change as the result of additional cards issued to you. We will charge you a yearly card fee of R 55.00 for each additional card issued to you. The fee is payable during the month that we issue the card and will be reflected on your statement.
11.3 You will have a monthly credit limit and budget limit (if applicable) as stated in the quotation, which limit(s) will apply to all additional cards issued. This means that one credit limit and budget limit (if applicable) will apply to all the cards issued to a member.
11.4 You can use the card and enjoy all benefits offered from time to time, subject to the agreement only. We will charge you a transaction fee of R 0.95 each time you use the card.
11.5 You may only use the card and/or facility for purchases of goods and/or services. Without limitation, the card and/or facility may not be used for payment of any retailer accounts unless specifically permitted by Cape Consumers in terms of an arrangement agreed between Cape Consumers and a retailer.
11.6 We will provide you with a list of all retailers on request.
11.7 You can tender the card and/or facility to the retailers for payment of goods and/or services to the maximum amount of your monthly credit limit (or budget limit in the case of payments in terms of the budget facility) available at the time of the purchase and we will pay the retailer on your behalf, subject to the agreement.
11.8 We are not liable to pay any entity or person who is not a retailer as defined in the agreement.
11.9 You can apply for a budget facility 6 (SIX) months after you entered into the agreement for a bsmart card and facility. We may decide whether we will approve or decline the application in terms of our internal rules and subject to the NCA. If we approve it we will allow you to repay the outstanding budget amount over a longer period as agreed (maximum 36 months). You may only use a budget facility for purchases of R 300 or more.
11.10 You can apply for a loan 3 (THREE) months after you entered into the agreement for a bsmart card and facility. We may decide whether we will approve or decline the application in terms of our internal rules and subject to the NCA. If we approve it you will be able to repay the outstanding loan amount over the period as agreed in terms of a separate loan agreement with us.
11.11 If you want to increase your credit and/or budget limit, you can request a limit increase in writing by completing our application form, which we will then consider. This request for an increase does not refer to an automatic annual increase that may apply if you requested an automatic annual increase to your credit and/or budget limit in your application.
11.12 If you have applied for an automatic annual credit limit increase, we will increase your limit in terms of the NCA.
11.13 If you believe you are over indebted, apply to a Debt Counsellor to be declared over indebted, subject to clause 16 below.
11.14 If you have a complaint against us, address it by way of an alternative dispute resolution agent, Consumer Court or Ombud with jurisdiction, or file a complaint with the National Credit Regulator, or file an application to the Tribunal.
11.15 The contact details for the National Credit Regulator are the following:
127 – 15th Street, Randjespark, MIDRAND
Switchboard: 011 554 2600
Call Centre: 0860 627 627 or 0860 NCR NCR
11.16 The contact details for the Credit Ombud are the following:
Call Centre: 0861 662 837 or 0861 OMBUDS
11.17 You have the right to:
11.17.1 decline an option of pre-approved annual credit limit increases as provided for in section 119(4) of the NCA;
11.17.2 be excluded from any -
188.8.131.52 telemarketing campaign that may be conducted by or on behalf of us;
184.108.40.206 marketing or customer lists that may be sold or distributed by us, other than as required by the NCA;
220.127.116.11 mass distribution of email or SMS messages.
11.18 The card will remain our property and you must return it to us on termination of membership or on request.
11.19 You must take proper care of your card, including taking all reasonable steps to prevent any person who does not have the authority to use it, from using it, or to prevent the card from being lost, stolen or damaged.
11.20 If the card is lost or stolen or if you become aware that the card has been used by any unauthorised person, you must tell us by phoning (021) 409 7600 during office hours on business days (08:00 - 16:30) or by contacting Nedbank, the agent of Cape Consumers, at the toll-free number 0800 110 929 after hours.
11.21 Once you have reported the theft or loss of a card, Cape Consumers will not hold you liable if someone uses the card afteryou notified us, unless:
11.21.1 your signature appears on the voucher, sales slip or similar record confirming that you used the card; or
11.21.2 we have other evidence that is satisfactory in our opinion to reasonably confirm that you authorised someone else to use the facility.
11.22 If there is a change in any of the fees,we will notify you in writing via the monthly statement of account or electronically.
11.23 If there is any change to these terms and conditions as allowed for in law, we will notify you in writing via the monthly statement and the changes will be displayed on our website and be made available through a printable webpage.
11.24 The interest rate for late payments will be linked to the prime rate of First National Bank Limited and will be subject to the maximum rates allowed for by applicable laws like the NCA and Usury Act 73 of 1968.
11.25 You agree to pay to us in terms of the agreement, including all the fees as specified in the agreement. We will reflect all costs and fees on your monthly statement.
11.26 You must pay all amounts shown in the statement that are due to us, on or before the due date. This obligation to pay applies whether or not:
11.26.1 you or any other party paid for goods and/or services with the bsmart card; and/or
11.26.2 the amount recorded in respect of any such purchase is correct; and/or
11.26.3 there is any dispute between you and the retailers; and/or
11.26.4 the retailers can receive payment from any other source or party.
11.27 The monthly statement is prima facie (on the face of it) proof of your debt with us for the purchases from retailers and you agree that if you dispute that, you will have to prove that.
11.28 You agree not to exceed the credit limit or budget limit allocated in terms of the quotation. Where the NCA applies to the agreement we must approve an increase to your credit and/or budget limit in writing. If we in our discretion settle any sales voucher or purchase that exceeds the credit and/or budget limit, this does not mean that we have increased your credit and/or budget limit permanently.
11.29 If you have more than one agreement with us, you must clearly specify in terms of which agreement you are paying, if you want to make a pre-payment on the loan or budget facility
11.30 You agree and confirm that you understand the meaning of this agreement and how it will affect you and what the consequences of this agreement are. If you do not understand any terms or consequences, you must ask Cape Consumers to explain it in a language that you can understand.
12. BSMART MEMBERSHIP AND MEMBER’S RIGHTS:
12.1 The provisions of Cape Consumers’ Memorandum of Incorporation, as may be amended from time to time with the approval of a resolution of the buyers passed with a two thirds majority at a general meeting of the buyers and at which meeting at least 50 (fifty) buyers are present, regulates the affairs of Cape Consumers in relation to the buyers. These affairs include but are not limited to, the Buyers Reserve Fund, general meeting of buyers, the rights of the general meeting of buyers to appoint shareholders of Cape Consumers, and the rights of the buyers at the winding up of Cape Consumers.
12.2 You will receive a bonus as determined by Cape Consumers. The bonus will be credited to the member’s facility after the bonus is declared. In the event of the member closing their facility, any bonus due will be credited to the member’s account and paid out. The percentage that we use to calculate the bonus may differ from time to time.No bonus will be payable to the full amount of bonus qualifying purchases for a trading period where the amount due was not paid in full on or before the due date.
12.3 Please note that although a levy may apply to a purchase as per clauses 13.2 and 13.3 below, not all purchases may qualify for the bonus payment referred to in clause 12.2 above.
12.4 We may decide at our sole discretion to make payments to the Buyers Reserve Fund. Our Memorandum of Incorporation allows us to distribute your share of these payments when the agreement terminates, provided that if the agreement terminates due to your breach of contract, you will not receive any payment and you will forfeit your right to receive any payment.
13. MEMBER’S OBLIGATIONS:
13.1 You will pay membership fees as set out in this agreement.
13.2 You will pay levies on levy qualifying purchases. Levy payments may contribute to your bonus payment referred to in clause 12.2 above.
13.3 Applicable levies on purchases may differ from retailer to retailer.
14. BREACH AND TERMINATION:
14.1 The agreement is not for a fixed period and will continue until either party cancels it in terms of the agreement.
14.2 If you do not make payments in terms of the agreement, you will pay additional interest on the amount that is in arrears, as set out in the quotation.
14.3 If you are in breach of the agreement, the full outstanding amount (including capital, interest, arrear interest, fees and charges allowed for by the Act and/or other administrative costs, legal fees or any other monies owing to us)will immediately become due and payable and you may be liable for other costs that the law allows us to charge, like collections costs.
14.4 If you are not keeping to the payment terms (default), we will tell you in writing and propose that you refer the agreement to a Debt Counsellor, alternative dispute resolution agent, the Consumer Court or the Ombud with jurisdiction, with the intent to resolve any disputes or develop and agree on a plan to bring the payments up to date.
14.5 If you have applied for debt review under Section 86 of the Act and the review is not finalised within 60 (sixty) business days after you applied, we may send a notice to end the debt review in terms of Section 86 (10) of the NCA.
14.6 We may terminate the agreement on 10 days’ notice as provided for in section 123 of the NCA.
14.7 Subject to the provisions of the NCA, we may terminate the agreement if you breach the agreement.
14.8 We may also proceed with legal action against you to enforce the agreement.
14.9 We will only proceed with legal action if:
14.9.1 you have been in default with payment of a monthly statement of account for at least 20 (twenty) business days after due date; and
14.9.2 10 (ten) business days after the date of a letter or notice we issued to you to inform you of the breach (these two time periods – the 20 business day and 10 business day periods - may run at the same time or concurrently); and
14.9.3 you did not respond to the letter or you rejected any proposal from us to refer the matter to a Debt Counsellor, alternative dispute resolution agent, Consumer Court or Ombud with jurisdiction.
14.10 You agree to receive notices (including but not limited to a notice in terms of section 129 of the Act) as referred to in clause 14.9by registered mail at your domicilium address which is the address stated in the application form or if your address has changed, your new address, subject to you informing us in writing of the change in address.
14.11 When the agreement terminates for any reason, all amounts due on personal loans and your budget facility (if applicable) will be transferred to the card facility.
14.12. If you agree with Cape Consumers to pay any outstanding amount in monthly instalments after we have terminated your facility, it does not mean that we have re-opened your facility.
15. EFFECT OF BREACH:
15.1 If you breach any term of the agreement, we may without limiting any of our rights in terms of the law, terminate your use of the facility, cancel the use of the card/s immediately and demand that you pay the full outstanding balance which will immediately become due and payable and immediately return the cards to us.
15.2 In addition to clause 15.1 above:
15.2.1 you will be charged with default administration charges relating to any debt collection activities;
15.2.2 your default status will be noted on the credit bureau which could negatively affect your credit record;
15.2.3 we will give you notice that we intend to terminate the agreement;
15.2.4 your outstanding debt will be handed over to an internal or external debt collection agency for the recovery of the arrears amount.
15.3 If you exceed the approved credit or budget limit, this will be regarded as a breach of the agreement and all outstanding amounts will become immediately due and payable.
15.4 If we take legal action against you to recover any amount due to us, you agree to:
15.4.1 the jurisdiction of the Magistrate’s Court even if the amount that we claim is more than what the Magistrate’s Court normally be entitled to determine; and
15.4.2 pay all legal costs on the scale as between attorney and client, which will include interest, tracing fees and collection commission, as the case may be.
15.5 If you breach the agreement you will forfeit the bonus payment for the months where you were in breach and you will forfeit your share of the Buyers Reserve Fund as provided for in clauses 12.2and clause 12.4. If we terminate the agreement due to breach, you will forfeit any bonus payments and your share of the Buyers Reserve Fund that would have been due to you at the date of breach of the agreement.
15.6 You agree that we can appoint a tracing agent, if you breach the terms of agreement and we are not able to trace you.
16. APPLICATION FOR DEBT REVIEW:
16.1 You have the right to apply to a Debt Counsellor to be declared over indebted.
16.2 You may not apply to a Debt Counsellor to be declared over indebted if, at the time when you want to apply we have already started legal action against you.
16.3 The Debt Counsellor will determine whether you are over indebted and, if so required, the Debt Counsellor will also make a finding on whether the agreement amounts to reckless credit.
16.4 The Debt Counsellor may reject your application or may recommend that both you and us consider and agree on a debt rearrangement plan.
16.5 If the Debt Counsellor finds that you are indeed over indebted, he may issue a proposal recommending that the Magistrate’s Court make an appropriate order.
16.6 If you accept the Debt Counsellor’s recommendation and all parties agree to it, it may be filed as a consent order by the Debt Counsellor.
16.7 If the Debt Counsellor rejects the proposal, you may ask the Magistrate’s Court to apply directly to them for an appropriate order.
17.1 You hereby authorise us to cede (transfer) to any third party, all rights title and interest in and to all or part of your debt with us.
17.2 You may not cede (transfer) any of your rights or duties in terms of the agreement to any party without our written consent.
If we do not exercise or enforce all our rights it will not mean that we waive (do away with) our rights in terms of the agreement.
19. FOR AND ON BEHALF OF LEGAL ENTITIES:
If you are a legal person, the natural person who accepts the quotation/credit facility on behalf of the legal person, warrants that he/she is duly authorized to do so and accepts responsibility for payment of the amount due in terms hereof, as surety and co-principal debtor with said entity.