Being served means receiving notice or being informed of a party’s intention to act or omit to act - such as receiving a written document via registered post demanding specific performance in terms of an agreement. Serving notice or delivery of notice by credit providers such as banks has been closely examined over recent years.
The National Credit Act 34 of 2005 (NCA) aims to prevent over-indebtedness and to protect consumers who have entered into credit agreements. The NCA applies to credit providers like:
According to the NCA, credit providers may not sue a consumer who has defaulted under a credit agreement before a legal notice (in a form of a letter of default) has been delivered to that consumer. This legal notice is often referred to as the “Section 129 notice”. There has been much confusion as to how the notice should be delivered since it was not clearly defined in the Act. Numerous cases have been heard by our courts and have assisted in clarifying what delivery in terms of section 130 means.
In the case of Nedbank v Binneman, the notice was returned to the credit provider because the consumer failed to collect the registered mail from the post office. Could they claim that the notice didn’t come to their attention? What if consumers simply ignore the legal notices and create legal havoc?
In terms of the Uniform Rules of Court all notices are to be served, excluding those initiating proceedings, by means of physical delivery, registered mail, fax or e-mail. Substituted service may be used where the party is believed to be in South Africa and the other methods of service have not worked.
The credit provider may take additional steps to ensure delivery like sending the notice via fax or email. In the CMC Woodworking Machinery (Pty Ltd v Pieter Odendaal Kitchens case relating to a litigation (not NCA) matter, the judge allowed substituted service and permitted a notice to be sent via Facebook.
For defaulting consumers and defendants who aim to evade legal notices, the long hand of the law will eventually reach you via physical delivery, registered mail, fax, e-mail and even Facebook.
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