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Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad

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Delivery of the Compulsory Section 129(1) Notice as required by the National Credit Act of 2005

S. Govender, M. Kelly-Louw

Abstract


In terms of section 129(1) of the National Credit Act 34 of 2005 (NCA), a credit provider first needs to provide a consumer with notice of his default and a list of possible remedies to overcome the default, before enforcing the agreement in a court of law. This ensures that the consumer is given the opportunity to remedy his default by, for example, undergoing debt counselling instead of having to incur legal costs when defending legal action brought against him by the credit provider. Before the National Credit Amendment Act 19 of 2014 came into operation, the NCA neglected to specify how this notice should be delivered to consumers, and this has led to various conflicting decisions. The matter was eventually settled by the Constitutional Court in two separate cases. After the Constitutional Court pronounced on the matter, the National Credit Amendment Act came into operation prescribing the manner in which the notice must be delivered. Consumer-credit legislation that existed prior to the NCA coming into operation generally also made provision for similar notices to be delivered to consumers. In this article we briefly look at how the previous consumer-credit legislation dealt with the delivery of similar notices and also consider how the delivery of notices is currently governed by the NCA. Most of the problematic issues surrounding the delivery of the section 129(1) notice have been resolved, but some still remain. One such example is found in a recent Supreme Court of Appeal case, where despite the correct delivery of the notice to the consumer, the notice caused unintended jurisdictional problems for a credit provider trying to enforce the credit agreement.

Keywords: National Credit Act; National Credit Amendment Act; previous consumer-credit legislation; consumer protection; default notice; section 129 notice; delivery; delivery of the section 129 notice; domicilium address; inform; notify; letter of demand; post office receipt; sent by registered mail/post; section 90(2)(k)(vi); jurisdiction; Post Office track and trace report; 28(1)(d) of the Magistrates' Courts Act 32 of 1944.




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