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13 Feb 2012 18:54
The Constitutional Court will hear argument on Tuesday on whether defaulting debtors must receive notice before action is brought against them by creditors.
The court has to determine whether it is enough for a notice, sent in terms of the National Credit Act, to be simply issued.
It will consider the case of the Sebola family who were in default of payment and did not receive a letter from their creditor, Standard Bank, even though one had been sent out.
Standard Bank obtained default judgment and the family applied for rescission of the judgment on the basis that they had not received the notice.
The South Gauteng High Court found that proof of dispatch was enough.
The family contends the Act, properly interpreted, requires them to have received the notices.
Standard Bank had withdrawn the proceedings against the family but maintains the correct interpretation of the section is that the creditor is required to dispatch the notice and no more.
The Socio-Economic Rights Institute of South Africa has submitted an argument that the debtor must receive the notice and must be aware of all their rights.
The National Credit Regulator has contended that the creditor must have taken steps to bring the notice to the attention of a reasonable consumer and that the notice delivered to the address chosen by the debtor.
The Banking Association of South Africa, on the other hand, says the notice merely needs to be sent.—Sapa
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