[139] For a discussion of the problematic aspects of this article, see Kelly-Louw “Consumer Credit,” paragraph 86 of endnotes 33 and 34, 162-163; Scholtz et al National Credit Act, sections 9.3.3 and 12.3; and Otto and Otto National Credit Act Explained in footnotes 60 and 61, pp. 59-60. 2 Reminders within the meaning of the previous Consumer Credit Act In the case of the Land Disposal Act, as in the earlier Consumer Credit Act discussed above, the same question arose, namely whether the reminder must be received by the consumer in order to comply with Article 19. Article 19 of the Land Sale Act regulates (and restricts) the right of a seller (creditor) to act in the event of a breach of a contract for the sale of real estate. Article 19 of the Law on the Sale of Immovable Property, prior to its amendment, provided that a creditor must inform the consumer (buyer) of the offence in question in advance. It was intended that the notice would be given to the consumer, sent by registered letter to his address. The case was then referred to the Supreme Court of Appeal, and the question to be decided was whether service of the section 129 notice was part of the plea. The lender argued that, although service of the notice under section 129 had to be invoked and proved, it was a procedural step which did not form part of the cause of action and therefore had no bearing on section 28 § 1 (d) of the Courts of First Instance Act. The lender argued that the plea was obvious if the contract concluded in Bloemfontein had been breached in Bloemfontein and that this was sufficient to establish the jurisdiction of the Bloemfontein Court of First Instance.

[133] Initially, it appeared that the Constitutional Court`s ruling in the Sebola case had put an end to the long-standing debate on the service of the notice under Article 129. This view was short-lived, as two different high courts (the Western Cape High Court in Cape Town and the KwaZulu-Natal High Court in Durban) began to interpret and apply the Ebola ruling differently. [83] In both cases, the creditors sent the notices under subsection 129(1) by registered mail to the appropriate post offices and, in both cases, the notices were returned to the creditors as “not collected”. The respective high courts have delivered contradictory judgments which have again confused credit providers as to how they have to prove that they have fulfilled their obligations under Article 129(1) CNE when submitting a reminder to a consumer. It is doubtful whether the legislature intended to impose such a burden on a credit provider by merely delivering the notification referred to in Article 129 to the address chosen by the consumer, which it is required to do within the meaning of the CRA. However, section 19 of the Land Disposal Act was subsequently amended by the Land Disposal (Amendment) Act 1983. [51] The latter Act deleted, among other things, the word “informed” in § 19(1) and replaced it with the word “notified”. In Van Niekerk/Favel[52], the Court confirmed that the requirement of service under § 19 is fulfilled if the letter is sent by registered mail, whether or not it reaches the intended addressee (consumer/buyer). Van Niekerk v. Favel[31] was another case concerning the service of notices within the meaning of the Land Sale Act.

In Van Niekerk v. Favel, the judge agreed with the view expressed in Marques v Unibank Ltd that the requirement of service was satisfied if the letter was sent by registered mail, whether or not it was received by the intended addressee. The National Credit Amendment Act was signed into law by the President on May 16, 2014,[117] but did not enter into force until March 13, 2015. The National Credit Amendment Act amended section 129 of the NCA, including adding three subsections. The Constitutional Court convinced and confirmed its findings in the Sebola case and before the Court that the lender does not have to prove that the communication was subjectively brought to the consumer`s attention or that the communication must be served personally on the consumer. [103] In this context, section 129 provided that the lender must ultimately “bring the consumer`s attention in writing.” Under section 65(2) of the LCN, by making the document available to the consumer in one of the ways provided for in that section, the creditor fulfils that obligation to draw the consumer`s attention to the reminder. [104] The Court considered the purpose of the CRA and the significance of service of the notice under paragraph 129(1)(a), as noted by Sebola and Kubyana. The Supreme Court of Appeal held that it was essential for a creditor to maintain compliance with section 129 of the NCA in order to disclose a cause of action arising from the default of a credit agreement.