Agricultural Debt Management Act, 2001 (No. 21 of 2001)

Government Gazette REPUBLIC OF SOUTH AFRICA Vol. 438 Cape Town 7 December 2001 No. 22913 THE PRESIDENCY No. 1314 7 December 2001 It is hereby notified that the President has assented to the following Act, which is hereby published for general information:– No. 45 of 2001: Agricultural Debt Management Act, 2001 AIDS HELPLINE: 0800-123-22 Prevention is the cure · 2 No. 22913 GOVERNMENT GAZETTE, 7 DECEMBER 2001 Act No. 45, 2001 AGRICULTURAL DEBT MANAGEMENT ACT, 2001 (English text signed by the President.) (Assented to 4 December 2001.) To provide for the administration of this Act; to establish the Agricultural Debt Account; to provide for the use of the account as a mechanism to manage agricultural debt repayment; to administer monies in the account; to determine the purpose for which funds in the account may be used;. to provide for the auditing and reporting on the account; to provide for variollls matters relating to debt agreements, interest rates, the collection and writing olf of debt, the registration of bonds and property; and to provide for matters connected therewith. BE IT ENACTED by the Parliament of the Republic of South Africa, as follows: Definitions 1. In this Act, unless the context otherwise indicates " account" means the Agricultural Debt Account referred to in section 3; 5 "agreement" means any oral or written agreement relating to debt, and includes a unilateral undertaking by any person in favour of the State; "Agricultural Credit Act" means the Agricultural Credit Act, 1966 (Act No. 28 of 1966); "Coloured Farmers Assistance Law" means the Coloured Farmers Assistance Law, 10 1973 (Act No. 1 of 1973) (Coloured Persons Representative Council); "debt" means any amount contractually or statutorily owed to the State as a result of assistance, loans or subsidies in terms of the provisions of the Agricultural Credit Act, the Coloured Farmers Assistance Law or financial assistance schemes, and includes any amount owed as rent or interest or resulting from or relating to such 15 debt; "department" means the national Department of Agriculture; "Director-General" means the Director-General of the department; "financial assistance scheme" means subsidies, loans and other advances administered by the department; 20 "Minister" means the Minister responsible for agriculture in the national government; "officer" means an officer as defined in section 1 (I) of the Public Service Act, 1994 (Proclamation No.103 of 1994); "Public Finance Management Act" means the Public Finance Management Act, 25 1999 (Act No. 1 of 1999); and "rent" means rent charged by the department for the use of land. Administration of Act 2. (1) The Minister is responsible for the administration of this Act. (2) Subject to the provisions of subsection (3), the Minister may delegate any of his 30 or her powers or duties in terms of this Act, to an officer of the department. 4 No. 22913 GOVERNMENT GAZETTE, 7 DECEMBER 2001 Act No. 45, 2001 AGRICULTURAL DEBT MA.l\lAGEMENT ACT, 2001 Any power or duty capable of being exercised or performed under the provisions of section 5 may only be delegated to the chief financial officer in the department who has been designated as such under the Public Finance Management Act. The Minister must designate an officer of the department to administer this Act, and such officer may be assisted by as many officials or other persons a.s are deemed 5 necessary to give effect thereto. (5) Subject to the provisions of subsection (3), the Director-General may delegate any of his or her powers or duties to an officer designated under subsection (4), or to an officer assisting that officer. Agricultural Debt Account IO 3. ( 1) The Agricultural Credit Account kept in terms of section 20A of the Agricultural Credit Act, continues to exist despite the repeal of that Act and is to be called the Agricultural Debt Account. (2) The monies standing to the credit of the account on the date of commencement of this Act, consist of all- 15 (a) monies standing to the credit of the Agricultural Credit Account immediately before that date and received as repayment of debt under or as a result of the provisions of the Agricultural Credit Act; (b) monies received before that date as repayment of debt under or as a result of the provisions of the Coloured Farmers Assistance Law; 20 ( c) such other monJes standing to the credit of the Agricultural Credit Account on that date and received by the department as repayment of debt under or as a result of financial assistance schemes or as rent. (3) The monies standing to the credit of the account consist of all obligations relating to debt referred to in subsection (2), on the date of commencement of this Act. 25 ( 4) The Di rector-General is the accounting officer of the account. (5) The account ceases to exist when all outstanding debts have been collected or written off in terms of this Act and monies standing to the credit of the account have been appropriated by Parliament. Crediting and debiting of account 30 4. (1) The account must be credited with (a) all monies received after the date of the commencement of this Act as repayment of debt referred to in section 3(2); ( b) all monies resulting from the collection of outstanding debt referred to in section 3(2); 35 ( c J interest earned from monies invested; and (d) monies accruing from any other source. (2) The account must be debited with ( a) the purchase price and any expense or cost relating to the purchase and management of property acquired under this Act; 40 (b) any fee, expense or cost incurred in terms of section 8(6); ( c) any amount (i) which has been erroneously paid into the account; (ii) which is not owed to the State; or (iii) the reimbursement of which safeguards the interests of the State; and 45 ( d) any amount appropriated by Parliament for agricultural or other purposes, which must be transferred to the National Revenue Fund in terms of section 5. (3) All monies received by the department as repayment or collection of debt other than that referred to in subsection (1), must be deposited into the National Revenue Fund. 50 (4) MonJes standing to the credit of the account that are not immediately needed as contemplated under subsection (2), may be invested with the ( a) Corporation for Public Deposits; and 6 No. 22913 GOVERNMENT GAZETTE, 7 DECEMBER 2001 Act No. 45, 2001 AGRICULTURAL DEBT MANAGEMENT ACT. 2001 (b) approval of the Minister given in consultation with the Minister of Finance, with any financial institution registered as such by the Registrar of Financial Institutions. Utilisation of monies 5. (1) The Director-General may request the transfer of any surplus money standing 5 to the credit of the account to the National Revenue Fund if ( a) such monies will not be needed as contemplated in section 4(2)( a), (b) or ( c); and ( b) the Minister, in consultation with the Minister of Finance, has approved such transfer. 1 0 (2) Monies transferred to the National Revenue Fund from the account may be appropriated by Parliament on the vote of the Department to be utilised for agricultural development programmes in a specific financial year in terms of a business plan submitted by the Director-General, if such business plan is ( a) approved by the Minister; and 15 (b) submitted to the National Treasury at least three months before the beginning of a financial year or the tabling of the adjustments estimates in Parliament. Auditing and reporting 6. ( 1) The financial year in respect of the account ends on 31 March every year. (2) The account must be audited by the Auditor-General. 20 (3) The Director-General must keep such accounting records as are necessary in accordance with the generally recognised accounting practice, as set out in the Public Finance Management Act, to reflect accurately the status of the account. Validity of agreements 7. (1) Any agreement which is still in force immediately before the commencement of 25 this Act and which directly or indirectly relates to a debt, remains a legally binding agreement and is enforceable as such, despite the repeal of any legislation under which or as a result of which that agreement was concluded. (2) Any provision of the repealed legislation referred to in subsection (1), is considered to be valid and may be invoked as if it had not been repealed, in so far as it 30 directly or indirectly relates to or is connected with any agreement contemplated in that subsection. (3) Any mortgage bond, condition or restriction relating to a debt and registered against immovable property on the date of commencement of this Act, remains in force despite the repeal of any legislation under which that mortgage or condition was 35 effected. ( 4) Any provision of the repealed legislation referred to in subsection (3) is, in so far as it is necessary to give effect to any bond, condition or restriction registered against the title deed of that property, considered to be valid and may be invoked as if it had not been repealed. 40 (5) Any reference to the "Agricultural Credit Board", the "Coloured Persons Agricultural Assistance Board", "Secretary" or any other person or officer in legislation or in an agreement referred to in subsection (1) or (2), or in legislation or a bond, condition or restriction referred to in subsection (3) or (4), must be considered to be a reference to the Minister, and he or she may exercise the powers or perform duties 45 attributed to such person. Debt 8. (1) The Director-General ( a) must on a continuous basis monitor the repayment of debt and investigate any factor that may influence the timeous repayment thereof; 50 (b) must audit all securities relating to debt; ( c) must collect a debt that is outstanding; ( d) may acquire movable or immovable property in the course of debt collection in terms of this Act; and 8 No. 22913 GOVERNMENT GAZETTE, DECEMBER 2001 Act No. 45, 2001 AGRICULTURAL DEBT MANAGEMENT ACT. 2001 may exercise any power or take any other action relating to a debt that may be required to safeguard the interests of the State. Any immovable property acquired by the Director-General under subsection (1 J must, as soon as practicable, be registered in the name of the Government of the Republic of South Africa. 5 (3) The Director-General may, at the request of a debtor or any person having a legitimate interest therein and on such conditions as he or she may determine ( a) consolidate amounts and interest owed as debt under different agreements; (b) substitute debtors, vary or substitute bonds, impose or vary conditions or restrictions, vary securities or accept other securities; lO (c) vary or waive any right of the State subject to the provisions of this Act, consent to any legal act and vary or waive any term of an ~~,~~,.,5 agreement; (d) determine any other condition subject to which an agreement is concluded or amended, including interest rates, the payment of collection costs or legal fees incurred in the collection of debt, and the incorporation of any bond, condition 15 or restriction or other provision of an existing agreement into that agreement. (4) The Director-General (a) may write off a debt relating to the account; (b) must write off such debt in accordance with the provisions of the Public Finance Management Act and a policy determined by the Department. 20 (5) The Director-General may, on such conditions as he or she may determine ( a) contract with any suitable person to collect the debt that is outstanding and to take all such actions relating thereto as may be necessary to ensure the collection thereof; ( b) appoint any suitable person to represent him or her at auctions where assets of 25 a debtor are sold and buy such assets on behalf of the State; (c) from time to time enter into agreements with such other suitable persons as may be necessary to safeguard the interests of the State in terms of this Act. (6) The fees of or the expenses or costs incurred by a person referred to in subsection (5) must be paid out of the account. 30 Tendering of documents for registration and exemptions 9. (1) An officer in the department may, despite the provisions of any other Act, tender a bond, agreement, consent, authorisation or other document at any deeds registry registration or filing, and the registrar must on receipt thereof, cause the necessary endorsements to be made in his or her records despite any requirement of the 35 Deeds Registries Act, 1937 (Act No. 47 of 1937). (2) No duties, taxes or other fees, are payable in respect of an endorsement under subsection (1). The provisions of the Stamp Duties Act, 1968 (Act No. 77 of 1968), do not apply to any agreement existing on or entered into after the commencement of this Act. 40 Repeal of laws 10. The laws set out in the Schedule are hereby repealed to the extent set out in the third column thereof. Short title and commencement 11. This Act is called the Agricultural Debt Management Act, 2001, and comes into 45 operation on a date determined by the President by proclamation in the Gazette. 10 No. 22913 GOVERNMENT GAZETTE, 7 DECEMBER 2001 Act No. 45, 2001 AGRICULTURAL DEBT MANAGEMENT ACT, 2001 Schedule No. and year of Short title Extent of repeal law Act 28 of 1966 Agricultural Credit Act, 1966 The whole Act 45 of 1968 Agricultural Credit Amendment Act, 1968 The whole Act 66 of 1970 Agricultural Credit Amendment Act, 1970 The whole Act 10 of 1971 Agricultural Credit Amendment Act, 1971 The whole Act 15 of 1972 Agricultural Credit Amendment Act, 1972 The whole Act 81 of 1977 Agricultural Credit Amendment Act, 1977 The whole Act 67 of 1979 Agricultural Credit Amendment Act, 1979 The whole Act 87 of 1979 Designated Areas Development Act, 1979 The whole Act 27 of 1980 Agricultural Credit Amendment Act, 1980 The whole Act 73 of 1981 Agricultural Credit Amendment Act, 1981 The whole Act 18 of 1982 Agricultural Credit Amendment Act, 1982 The whole Act 67 of 1982 Second Agricultural Credit Amendment Act, The whole 1982 Act 42 of 1983 Agricultural Credit Amendment Act, 1983 The whole Act 51 of 1987 Agricultural Credit Amendment Act (House of The whole Assembly), 1987 Act 53 of 1993 Agricultural Credit Amendment Act (House of The whole Assembly), 1993 Act 175 of 1993 Agricultural Development Fund Act, 1993 The whole Act 65 of 1995 Agricultural Credit Amendment Act, 1995 The whole Act 21 of 1998 Land Bank Amendment Act, 1998 Items 1, 2 and 3 of the 3rd column of the Schedule