SUING TO ENFORCE A CREDIT AGREEMENT? DELIVER THE NCA NOTICE CORRECTLY! Before taking legal action to enforce any credit agreement, you must deliver to the consumer a notice in terms of the National Credit Act drawing the consumer's attention to the default, and proposing that he/she refer the credit agreement for arbitration, counselling etc. Several recent cases show how critical it is to comply strictly with the Act's requirements for delivery of this notice. In summary, if the notice is delivered to an address chosen by the consumer, the delivery is considered valid - whether or not the consumer actually received it. Thus in a recent High Court case, where a consumer had chosen an address to which there was no mail delivery service, posting by registered post to that address was - despite the lack of mail service - still held by the Court to constitute valid delivery. If on the other hand you deliver the notice to an address not chosen by the consumer, "there would not be compliance with the requirements of the section unless it is proved that the consumer has actually received the notice". And since proving actual receipt will often be difficult, if not impossible, you need to ensure: -
Recent Articles for February 2010; Source: www.dotnews.co.za |
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