Marimuthu Munien v BMW financial services (SA) (PTY) LTD unreported case no 16103/08 (KZD)

Abstract

Section 129(1)(a) read with section 130(1) and 130(3) of the National Credit Act 34 of 2005 (the NCA) provides that, as a required procedure before debt enforcement, a credit provider must draw the default to the consumer's notice in writing and propose that the consumer refer the credit agreement to a debt counsellor, alternative dispute resolution agent, consumer court or ombud with jurisdiction, with the intent that the parties resolve any dispute under the agreement or develop and agree on a plan to bring the payments under the agreement up to date. Even though section 129(1)(a) is silent as to the method by which the default should be brought to the consumer's notice, section 130(1)(a) provides clarity by requiring the section 129(1)(a) notice to be delivered. It appears that a credit provider who fails to comply with the provisions of section 129(1)(a) prior to debt enforcement by means of litigation will be in a procedural predicament as the credit provider will not possess a complete cause of action thus, for instance, rendering the summons excipiable. The crucial question thus appears to be whether or not in a given situation one may say that there was proper compliance with section 129(1)(a) as this directly affects the existence or absence of a complete and proper cause of action. A number of factors has to be considered in order to address this question, the most important being if the section 129(1)(a) notice was duly 'delivered'. In this regard two questions are especially relevant : a) When exactly can it be said that a section 129(1)(a) notice was 'delivered' for purposes of the NCA? b) Is it necessary for such notice to be received by the consumer in order to constitute proper compliance with the delivery requirement pertaining to section 129(1)(a)? The above questions were decided on in a recent judgment, Marimuthu Munien v BMW Financial Services (SA) (Pty) Ltd Case no 16103/08 (KZD) (unreported). This article will analyse section 129(1)(a) of the NCA by inter alia considering the above questions against the backdrop of the particular decision.