The purpose of s129 of the National Credit Act (NCA) is to ensure that a consumer is notified of the default and of the various options available to the consumer.
In Sebola v Standard Bank the Constitutional Court held that a credit provider can normally show compliance with s129 by:
- proving that the notice was sent by registered mail;
- proving that the notice reached the correct post office; and
- producing a post-despatch track and trace report from the post office website or producing proof of actual delivery.
It does not matter if the credit provider does not satisfy these requirements if there is evidence that the consumer received the notice. This is again made clear by the Supreme Court of Appeal judgment in Navin Naidoo v The Standard Bank of South Africa Limited [9 March 2016]. The consumer appellant conceded in his plea that he had received the s129 notice but tried to rely on the failure of the bank to prove delivery and, inconsistently, the bank’s failure to respond to his reply to the s129 notice.
The court criticised this technical stance adopted by the consumer. The court emphasised that ultimately the question is whether delivery of the s129 notice as envisaged in the NCA had been effected, which the consumer had admitted.
This judgment is to be welcomed because it prevented the consumer from abusing the provisions of s129 to escape liability.