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When a creditor gets tired of playing nice, trying to get funds out of a consumer voluntarily, they send out a letter called a section 129 notice. This letter is the last warning that a creditor is about to send a consumer a summons (much like a section 86(10) letter for consumers under debt review). The next step the creditor takes is to send a summons and then try get a judgment against the consumer. Armed with a judgment the creditor can try take a portion of the consumers salary or can even try take back the consumers assets which they financed.

At each step of this enforcement process, of course, the consumer has a right to appear at court and object or to ask the court to make a payment plan if necessary.

What has been happening to many consumers though, is that creditors have been sending these section 129 notices to the wrong address and then taken legal action against a consumer who is unaware of the legal action. The Constitutional Court have now handed down a ruling in the matter of Sebola vs Standard Bank that could have far-reaching implications for consumers in this regard.

The major benefit is that consumers will now be aware of when legal action is about to happen (normally 10 days after issuing this letter). The section 129 notice also encourages consumers to sort out the problem with their creditor. One way the notice by law has to mention is via debt review. Ironically the debt for which the section 129 notice is issued cannot be included in a debt restructuring court order as suggested by a debt counsellor to a court. It can be allowed for in the consumers budget section of monthly costs but not in the list of debts that is restructured. It does however allow the consumer to bring the debt up to date and then have that debt included in the debt restructuring if they are able.

Many consumers who are under debt review at the moment have received these section 129 letters…or have they? Now that the Constitutional Court has ruled that these section 129 notices have to be sent via registered mail to the consumer (unless they have specifically chosen another form of delivery) it may be that in recent times most consumers have not legally speaking been sent a section 129 notice. The banks and other creditors will now have to engage in a huge section 129 notice campaign via registered mail. This ruling may present many consumers with a defense in matters which have begun in court where a section 129 notice was not sent to them via registered mail. It might also have a bearing on matters where a section 86(10) notice was sent to consumers who are under debt review.

More than that, a creditor that takes legal action now  has to include the proof that the consumer came and fetched the registered letter in the application for a judgement. What this does is ensure that consumers, like Mr and Mrs Sebola, actually learn about the possible legal action before it happens. In their case, the notice from the bank went to completely the wrong town. It is now unlikely that such a set of circumstances will be repeated in the future as the consumer will have to actually have received the notice via registered mail. When giving the judgment on the matter Justice Edwin Cameron said that the purpose of the section 129 notice is to “give consumers a last chance before court enforcement procedures drop the guillotine on them”.

It feels like a big victory for the consumer after a series of mixed rulings which have recently seen consumers on the back foot. This ruling can be seen as a clear win for consumers though, and will hopefully help consumers take appropriate action when creditors do start to take legal action.

 

If you have received a section 129 notice go see a debt counsellor for advice on how to remedy your financial situation.