Section 129 of the National Credit Act 34 of 2005 (the “NCA”) requires a credit provider to notify a consumer, who is in default of a credit agreement, of the fact that the consumer is in default before the credit provider may commence with instituting legal action against the consumer.

Section 129 (hereafter s 129) only requires “notification” to the consumer and up to now conflicting interpretations existed as to whether the s 129 letter must come to the actual attention of the consumer or whether the requirements of this section will be met if the credit provider can prove that it posted the s 129 letter.

In Rossouw and Another v First Rand Bank Ltd t/a FNB Home Loans (formerly First Rand Bank of SA Ltd) [2011] 2 All SA 56 (SCA) Judge Maya provided more clarity on the issue of the method of delivery of a s 129 letter.

The court referred to section 65(2), which lists methods by which a document may be delivered to a consumer, which includes delivery by ordinary mail, fax, e-mail, printable web page and in person. In order to determine the meaning of “deliver”, the court referred to sections 96 and 168 of the NCA.

Section 96 states that a credit provider is entitled to deliver any notice, including a s 129 notice, to the consumer’s nominated address, as per the credit agreement, or to another address, provided that the consumer gave a notice of a change of address. Section 168 on the other hand deems sending a document by registered post to the consumer’s last known address as proper service or delivery.

Therefore, if a s 129 letter is sent by registered mail to an address nominated by the consumer, the requirements of s 129 will be satisfied, regardless of whether the consumer actually received the letter and whether the letter had come to the actual attention of the consumer.

The onus will however be on the credit provider to prove that it did indeed send the s 129 letter by means of registered mail and that it was sent to the consumer’s chosen address.

About the Writer: Annelene Dippenaar is an admitted attorney, practicing since 2006. She has advised various clients, including registered banks, credit providers and other listed companies on the National Credit Act 34 of 2005. Since 2010 she has been employed by Compuscan, a registered credit bureau, as legal advisor and compliance officer. Annelene obtained a BA. (Law), LLB and LLM at the University of Stellenbosch and is currently writing her doctors thesis.

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