Association not prepared to act over attorney-code violations
The national association for debt collectors sets a standard of conduct that has been violated by a firm of attorneys headed by its own president.
But Arnold Olivier, the vice-president of the 240-member Association of Debt Recovery Agents (Adra), said this week that he was not prepared to ask his president, Gert Visser, to step down.
Visser is also the acting managing director of controversial JM Attorneys (Motto: Informed Solutions), which has, since June, twice been told by the Law Society of the Northern Provinces (LSNP) that its letters of demand were unacceptable.
Earlier this month it was warned that if it continued to send out the letters, which were bringing the attorneys profession into disrepute, it would face more serious action.
As an Adra member, Visser represents debt collectors Pholosa Asset Management, whose offices are in the same Randburg building as JM Attorneys.
"We are not negative about last week's Saturday Star article [that disclosed Visser's Adra link] but we don't think it's right to drag Adra into it," said Olivier, who runs the Credit Bureau in Potchefstroom. "It should be addressed under the law society rules and not Adra's. I have spoken to Mr Visser at length and he has done nothing wrong. On the debt collecting side there have been no complaints to us."
He added that, in any event, Visser's two-year presidency would end at the annual meeting on November 9.
Since the beginning of this year, JM Attorneys has sent out numerous letters of demand to ex-Health & Racquet Club (liquidated in 2000) members and Telkom clients who were in conflict with Adra's code of conduct. As an Adra member, Visser was duty bound to honour its code of conduct and ethical standards "in all instances and at all times".
However, Adra has no jurisdiction over JM Attorneys. Among the discrepancies were:
lAdra members must be "just, fair and honest" and must not "deliberately lie or misrepresent any fact". But many of JM Attorneys' letters stated that it was "instructed by its "client", Health & Racquet Club or Telkom, when in fact it had been instructed by the Mayibuye Credit Risk Group, an associated company that buys book debts and has offices in the same building as JM Attorneys. Visser conceded that this part of JM Attorneys' letters was not true, and stated: "We have amended our letters slightly to ensure there is not unintended consequence." Mayibuye is headed by Johan Meiring, who is also a director of JM Attorneys.
lAccording to Randburg attorney André Cruywagen, the letter his client received was a lie when it stated that unless payment was made by February 28, it would be "construed as an express consent" to sell his client's fixed property under section 66 of the Magistrate's Court Act. That section, Cruywagen maintained, came into force only after judgment had been granted. "This false statement is clearly induced to shock and terrorise the layman into paying without further ado," he wrote in a letter of complaint to the LSNP.
lAdra's members are told that they must not "deliberately threaten or cause distress" to a debtor. But JM Attorneys headed many of its letters "Notice of intention to attach fixed property" in bold type, and in the body of the letters it made it clear that unless the person paid within a few weeks, their home would be sold. Often the amounts claimed were no more than R2 000.
lAdra maintains that its members must not send letters that "may constitute excessive harassment of the debtor". Yet a Randburg woman has received five JM Attorneys letters of demand since April, even though she went to the firm's offices after the first letter with her cheque showing she had paid in 2001.
lA member, Adra's code states, "shall not initiate or threaten to initiate communication with the debtor's employers prior to obtaining judgment against the consumer in order to exert pressure on the debtor". In the October letter the Randburg woman received, it stated that her employer "may be summonsed to testify before a magistrate as to what your monthly earnings are". At that stage, as far as she was aware, no judgment had been taken against her. Visser claimed that this was taken out of context.
In an eight-page reply to questions put to him, Visser stated that it was not true to say the LSNP had found the letters of demand to be "unacceptable" and did not feel he should resign as Adra president. He emphasised that Adra had no control over JM Attorneys.
By Jon Abbott The Star 28/10/06
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