It is imperative that you, the Consumer, be informed of their rights, when it comes to credit. This is important as some Credit Providers thrive on uninformed consumers and tend to use “Bullying” tactics when consumer falls behind on payments.
The Consumer needs to realise that when they sign a credit agreement with a provider, you will sign a Domicillium Citandi et Executandi clause, which confirms your consent to the serving of any documentation to a specified address. The onus is on the consumer to notify the creditor of any change of address. Should the consumer fail to do so, any correspondence served on the address in the agreement, will be considered as lawfully served by the Sherriff. This is regardless of the fact that the consumer may no longer reside at the address stated in the agreement.
Most Credit providers will allow the consumer to default on two consecutive payments of account before proceeding with legal action. Thereafter a notice in terms of Section 129 of the National Credit Act (NCA) 34 of 2005, will be issued to the consumer. To know if the letter is actually a Section 129 notice, look for mention of the wording: Section 129 of the National Credit Act (NCA) 34 of 2005, in the notice. Most consumers ignore this notice, to their own detriment. These notices are sent either from the Creditor or their Attorneys. In addition, this notice must be provided to you via Registered mail, the function of this notice is to inform the consumer:
- That they are in breach of the Credit agreement
- A request that repayment arrangements be made
Should the consumer fail to respond to the notice within 10 business days of receipt, the Creditor may instruct their attorneys to proceed with legal action.
The attorneys will then issue summons on the consumer, the said summons must be served by the Sherriff of the Court. Should the consumer be unavailable when the Sherriff serves summons, he may attach the document to your front door. After receipt of summons the consumer has a further 10 business days to defend the action. This is done by taking the summons to the Court by which it was issued and advising the Clerk of the Court that you wish to defend the action. You will then be issued a hearing date when you may present your case to the court.
Should the consumer ignore the summons, the attorneys will apply for a default judgement in court. Once judgement is granted, they may proceed to bring application for the Emoluments Attachment Order, also known as a Garnishee. In order to remove the Garnishee from your salary, your attorney would need to bring application for rescission of judgement which will be for the consumers account.