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Justice Cameron of the Constitutional Court (“Con Court”) handed down judgment as follows

  • The main issue before the Con Court was whether the notice provisions of section 129, read with section 130 of the National Credit Act 34 of 2005 (“the NCA”) “demanded that a consumer actually receives this written notice before the creditor may start legal proceedings to recover the debt, whether it is enough for the credit provider to simply prove that the notice was sent to the debtor’s chosen address, or whether some other method of drawing the default to the notice of the consumer is sufficient”;
  • The Con Court found, in respect of notices delivered by credit providers in terms of section 129 of the NCA (“section 129 notices”) that the NCA does not demand that the credit provider must prove that the notice actually came to the attention of the consumer, since that would ordinarily be impossible;
  • Generally, the Con Court advised that where a section 129 notice is posted by registered mail, mere despatch is not enough.  What is required is that a post-despatch “track and trace” print-out from the website of the South African Post Office (which we are advised is available on the website for a period of 1 (one) year from date of despatch) is obtained by the credit provider and that this, together with the registered slip, must be annexed to the credit provider’s summons or particulars of claim, which should also include the allegation that “the 129 notice was delivered to the relevant post office and that the post office would, in the normal course, have secured delivery of a registered item notification slip, informing the consumer that a registered article was available for collection.” The Con Court found that the above would constitute adequate proof of delivery as required by the NCA. If a consumer wished to contest this and avers that the section 129 notice did not reach him/her, then the court must establish the truth of the consumer’s claim and if it finds that the credit provider did not act correctly, then the matter is simply adjourned to allow the credit provider to rectify the omission

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