Finally we have the answer to what constitutes delivery of the section 129 notice under the NCA.
The requirement that a credit provider is obliged to provide notice in terms of section 129(1)(a) to the consumer must be understood in conjunction with section 130, which requires delivery of the notice.
The statute, though giving no clear meaning to “deliver”, requires that the credit provider seeking to enforce a credit agreement aver and prove that the notice was delivered to the consumer.
Where the credit provider posts the notice, proof of registered despatch to the address of the consumer, together with proof that the notice reached the appropriate post office for delivery to the consumer, will in the absence of contrary indication constitute sufficient proof of delivery.
If in contested proceedings, however, where the consumer avers that the notice did not reach him or her, the court must establish the truth of the claim. If it finds that the credit provider has not complied with section 129(1), it must in terms of section 130(4)(b) adjourn the matter and set out the steps the credit provider must take before the matter may be resumed!
Essentially whilst this decision in Sebolla and Another v Standard Bank and Others ZACC 11 is clear in what is required,it will still mean that the Sabellos are not yet out of the woods and that they achieved a technical victory.