Constitutional Court Judgment on Sending S129 Notices ito NCA
Just when creditors had thought that the issue of how to send S 129(1)(a) notices to debtors in terms of the National Credit Act had been resolved (Clarity on Sending of NCA S129 Notices), the Constitutional Court has now added to the obligations in sending these notices, in the judgment handed down today in the case of Sebola and Another v Standard Bank of South Africa and Another CCT98/11.
S 129(a)(a) Notices are meant (what purpose they actually serve is material for another article) to in the words of Wallis J (as he then was) in the BMW Financial Services (Pty) Ltd v Donkin (15548/08)  ZAKZDHC 17; 2009 (6) SA 63 (KZD) (4 June 2009):
“That notice invites the debtor to refer the credit agreement (not the debt) to a debt counsellor, alternative dispute resolution agent, consumer court or ombud with jurisdiction. The purpose of such reference is either to resolve a dispute that may exist in relation to that agreement or to reach agreement on a plan that will enable the debtor to bring his or her payments under the agreement up to date. In other words what is contemplated is a consensual process mediated by the person to whom the credit agreement has been referred. “
In the Sebola case the debtor argued that the registered S129 Notice had gone to the wrong post office and that he never received it. As a result the Constitutional Court has added the following safe guard for debtors. Where sending S129(1)(a) Notice to defaulting debtors at their domicilium address by registered post (at 76):
“In practical terms, this means the credit provider must obtain a post-despatch “track and trace” print-out from the website of the South African Post Office. As BASA’s submission explained, the “track and trace” service enables a despatcher who has sent a notice by registered mail to identify the post office at which it arrives from the Post Office website. This can be done quickly and easily. The registered item’s number is entered, the location of the item appears, and it can be printed.
The credit provider’s summons or particulars of claim should allege that the 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. Coupled with proof that the notice was delivered to the correct post office, it may reasonably be assumed in the absence of contrary indication, and the credit provider may credibly aver, that notification of its arrival reached the consumer and that a reasonable consumer would have ensured retrieval of the item from the post office.”