Section 129, read with Section 130, of the National Credit Act (“the NCA”) provides that when a consumer falls into default in terms of a credit agreement, the creditor is required to send a written notice to the defaulting consumer to advise the consumer that the credit agreement be referred to a debt counsellor, alternative dispute resolution agent, consumer court or ombud with jurisdiction with the aim of resolving the default and / or develop and agree to a payment plan in order to bring the arrear payments up to date.
Prior to relevant amendments there were a number of issues pertaining to the actual delivery and receipt of the section 129 notice, with the crux of the issue being whether it is required that the defaulting creditor must actually receive the notice and be made aware of the notice before the credit provider can approach the relevant court for further legal action. In terms of Section 130 of the NCA, the consumer has 10 (ten) business days from receipt of the Section 129 notice to respond thereto, failing which the credit provider may proceed to institute legal proceedings.
In Rossouw v Firstrand Bank the Supreme Court of Appeal found that there was no indication of what was meant by the term “delivered” in section 129, and the court then proceeded to state that the credit provider is to provide proof that the credit provider had in fact delivered the Section 129 notice.
The Rossouw case was followed by Sebola v Standard Bank in 2012 in the Constitutional Court wherein the court ruled that a credit provider must do more than merely prove that the section 129 notice was delivered and provide proof that the notice had in fact been received by the correct post office for delivery to the consumer’s address. This can be done by the notice being sent per registered mail with proof of delivery being a track-and-trace printout from the South African Post Office indicating that the notice had in fact reached the correct post office for delivery to the consumer.
