The bank failed to give notice to the defaulting consumer under section 129 of the National Credit Act before issuing summons against the consumer. By the time it gave notice with the consent of the court, three years had passed since the debt became due. The consumer alleged that the debt had prescribed. The court found that, despite the absence of notice, the summons was valid and the debt had not prescribed.
Despite the absence of notice, the summons was valid.
A section 129 notice imposes conditions for the institution of action in court to recover a debt under the National Credit Act and delivery of the notice is compulsory. When a court allows the notice to be delivered after issue of summons, the action is not void. Section 130(4) allows a court to pause or adjourn the proceedings so that the notice can be given to the consumer who is then given an opportunity to go for debt counselling. The summons remains a valid summons and it therefore interrupts prescription.
