24 Mar 2010
It is common knowledge that in terms of S130 of the NCA, service of a S129 Notice is peremptory. But “What does service mean?” The High Court in Natal held that for registered post, actual receipt is not required.
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NEWS FLASH!
It is common knowledge that in terms of S130 of the NCA, service of a S129 Notice is peremptory. But “What does service mean?”
The High Court in Natal held that for registered post, actual receipt is not required. Thus even if a registered letter, correctly addressed to the consumer’s last domicillium citandi et executandi is “returned to sender”, delivery has taken place. (Munien v BMW Financial Services).
Another Natal High Court Case it was held that the words 'draw the default to the notice of the consumer', 'providing notice' and 'delivered a notice' cumulatively reflect an intention on the part of the legislature to impose upon the credit provider an obligation which requires much more that the mere dispatching of the notice contemplated by section 129(1)(a) to the consumer in the manner prescribed in the Act and the regulations. The credit provider is required to bring the default to the attention of the consumer in a way which provides an assurance to the court . . . that the default has indeed been drawn 'to the notice of the consumer'. (ABSA Bank Ltd v Prochaska t/a Bianca Cara Interiors)
The Gauteng High Court has now held that the correct question to ask when considering if there has been compliance with section 129(1)(a), in terms of the wording of the section, is not whether the notice has been "delivered" to the consumer, but is rather whether the credit provider has "drawn the default to the notice of the consumer in writing". Compliance with section 129(1)(a) of the National Credit Act requires that notice of any default by the consumer be brought to his actual attention; and that failure on the part of the credit provider to do so will bar the institution of legal proceedings with the result that any action instituted before then will be premature.
In the above case registered S129 notice was sent to the correct address, but the post office failed to notify the consumer and it was “returned to sender”. The Court held that delivery did not actually occur and postponed the application for summary judgment sine die.
In short proof of receipt of registered S129 Notice must be attached to a Request for Default Judgment.
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