The ECT Act and Enforceability of Electronic Communications in Variation of Contracts

The recent appeal case of Spring Forest Trading 599 CC v Wilberry (Pty) Ltd t/a Ecowash and Another (725/13) [2014] ZASCA engaged with several issues in relation to the provisions of the Electronic Communications and Transactions Act 25 of 2002 … Continue reading

Can South African Business survive the strike season?

In August 2012 thirty four miners were shot dead following a confrontation between Lonmin miners and the SAP, at Marikana. This year wave upon wave of strikes have disrupted the economy, namely: The Eskom strikes which have, it is reported, … Continue reading

Lease Agreements points to consider

Almost every person has entered into a lease agreement at some point in their lives, but most people are unaware of the consequences associated with a lease when they enter into the actual agreement. It is a harsh reality that … Continue reading

Favorite MS Sebola and another (“Sebolas”) v The Standard Bank of South Africa Limited
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Justice Cameron of the Constitutional Court (“Con Court”) handed down judgment as follows

  • The main issue before the Con Court was whether the notice provisions of section 129, read with section 130 of the National Credit Act 34 of 2005 (“the NCA”) “demanded that a consumer actually receives this written notice before the creditor may start legal proceedings to recover the debt, whether it is enough for the credit provider to simply prove that the notice was sent to the debtor’s chosen address, or whether some other method of drawing the default to the notice of the consumer is sufficient”;
  • The Con Court found, in respect of notices delivered by credit providers in terms of section 129 of the NCA (“section 129 notices”) that the NCA does not demand that the credit provider must prove that the notice actually came to the attention of the consumer, since that would ordinarily be impossible;
  • Generally, the Con Court advised that where a section 129 notice is posted by registered mail, mere despatch is not enough.  What is required is that a post-despatch “track and trace” print-out from the website of the South African Post Office (which we are advised is available on the website for a period of 1 (one) year from date of despatch) is obtained by the credit provider and that this, together with the registered slip, must be annexed to the credit provider’s summons or particulars of claim, which should also include the allegation that “the 129 notice was delivered to the relevant post office and that the post office would, in the normal course, have secured delivery of a registered item notification slip, informing the consumer that a registered article was available for collection.” The Con Court found that the above would constitute adequate proof of delivery as required by the NCA. If a consumer wished to contest this and avers that the section 129 notice did not reach him/her, then the court must establish the truth of the consumer’s claim and if it finds that the credit provider did not act correctly, then the matter is simply adjourned to allow the credit provider to rectify the omission