# Regulatory Compliance Category > National Credit Act Forum >  Debt: Legally cancelling a debt over 3 years old

## Citizen X

1.	Are debt collectors hounding you by post and/or telephone for debts older than 3 years?
2.	Law students at an advanced stage of LLB studies have a legal way based on the law to have such debts cancelled!!!!!
3.	You will be provided with a letter stating certain sections  of a certain Act that you can either post, email or take personally to the debt collector or the creditor i.e. bank or store
4.	The law offers you a duel guarantee a) The creditor is obligated by law to cancel the debt, b) The creditor does not cancel the debt but sends you summons, this very act will become your defence
Eg.On 1 August 2008 you entered into a cell phone contract with xyz cell phones. You pay until 1 July of 2009, and then for whatever reason, you stop paying,  The creditor has from 1 July 2009 up to and including 1 July 2012 to collect this debt from you failing which the debt can be cancelled by following a specific legal procedure.

*Invitation to take part in a survey: Fill in PDF questionnaire* 
1.  Preliminary research that I have conducted has demonstrated that many people are unaware of their rights regarding extinctive prescription claims. I have also established that certain creditors dont have policy documents on extinctive prescription. I further established that there is a great deal of uncertainty from both debtors and creditors as to how extinctive prescription should be claimed and whether there is a difference between an extinctive prescription claim and a special plea of prescription. There is also unpredictability as to how a creditor may respond to your your claim. *It doesnt help to have a law and that law doesnt work!!!!*!
2.  I believe that a section should be added to that act which places a lawful obligation on the creditor to process a debtors prescription even where the debtor has done so telephonically and confirm the same in writing.
*If you would like to take part in this survey*, kindly send a blank email to  vanash.naick@gmail.com with the subject survey. I will then send you a pdf fill in form, you select your answers, save it and then email as a pdf attachment to vanash.naick@gmail.com
*This is a good cause!!!*
Kind regards,
Vanash Naick

----------

Look02 (26-Feb-12)

----------


## Modise

Hi Viny,

What happens when a debt is bought from the creditor by the so called debt collectors? Does the 3 year period apply from the original date of debt or from the date of purchase by the debt collector? Not sure if i make sense.

----------


## Dave A

It seems this is what you get for your R400.00:




> 3. You will be provided with a letter stating certain sections of a certain Act that you can either post, email or take personally


Or you could send them a link to this thread.

----------

nipole (11-Apr-13)

----------


## Citizen X

Hi Modise,

It applies from the original date of debt! It is imperative that I make the following clear: The Act/legislation/statute applicable is the prescription act 68 of 1969. That being said, the creditor will not make you aware of this and will try and trick you so that the prescription period can start all over again. The most common ways they do this, is to get you to acknowledge the debt, i.e. say that you unemployed and will pay someday. Prescription will then run from the date you state this, also, if you make arrangements to pay, prescription will be interuptted and run from that date.
Bear in mind there is a very specific legal way to claim prescription!!! The fee mentioned includes not only giving you this very specific legal letter but also saving this letter as a pdf file on a disc for you so that you can also email it as an attachment. In all the cases we dealt with, the creditor immediately cancelled the debt and updated there records.

----------


## Citizen X

Hi Dave,

The following is given:-
1. A Detailed letter claiming prescription in terms of the Prescription Act;
2. The letter saved as a pdf file on a disc so that you can also email it as an attachment to the creditor
3. Attorney's normaly charge R2000 for this service, but becuase we are law students our price is reduced

----------


## Modise

Thanks Viny.

----------


## Mr Capo

Hi Viny.
I sold my house when I was in financial distress almost 4 years ago and was left with a shortfall amount. The bank never attempted to collect this and I am sure this over the 3 year period. If I use your services and letter could this debt be cancelled.

----------


## Mr Capo

If a debt collector attempts to "trick" you into a new prescription period can you use your letter to still cancel the debt?

----------


## Citizen X

Indeed you can! Most commonly, the creditor via an attorney will attempt to get you to acknowledge debt or make payment arrangements. Whilst these factors do cause prescription to start all over again, it is a material fact that debt collectors such as mbd, vvm, norman bisitetc donot record their telephone convesations and the person who phones you is not an attorney!

----------


## Dave A

If anything that has prescribed arrives in writing, just write the word *Prescribed* in bold letters across the statement/bill/demand/whatever and post it back to the sender.

If it's a phonecall, tell them to send you a letter setting out their claim. Then refer to the first paragraph.

----------


## Look02

Viny

(1)My house was repossessed in 2008 and got evicted same year. I found a new job and try to apply for new bond with different bank in November-2010; only to find out my house was never sold. Last month the bank promised to evict the people that are currently occupying the property but the interest will not be written off because the sale did not proceed. Since more than 3 years has passed, and the bank never contacted me, can i use your letter to write off interest which accumulated 4 years ago since i was under the impression that the Bank sold the property?

(2)I had credit card with “xyz” bank and stop payments in 2007 (no job no income).  I found new job and open new savings account with same bank in 2010. Somehow they managed to link the credit card to my savings acc (online). Last month (November 2011) i start receiving emails from collectors demanding 2007-2011 payments with 40% discount option. I have not used the credit card in nearly 5 years and destroyed it. Can your letter help when account is still active (activated without my permission) but never used?

----------


## Citizen X

Hi there,

Firstly, It’s more of a legal document than a letter that I provide. It is drafted specifically to apply to your individual situation as it not only includes the actual prescription claim with references to the relevant sections, sub sections, paragraphs and sub paragraphs of the Act but also relevant case law of the Supreme Court of Appeals that apply to your specific situation.
1.	With regards to your house, regrettably, the prescription period for a bond is 30 years!;
2.	With regards to your credit card, yes, the prescription period of 3 years does indeed apply and I can draft a legal document for you to claim prescription for this debt and therefore have the debt cancelled. Fortunately for you a credit card is not regarded in law as a ‘negotiable instrument’ ‘bill of exchange’ or ‘promissory note’, as the prescription period for these is 6 years.
I’m bases in Lenasia, South of Johannesburg. I normally prefer personal consultations, but if this is not possible because of your geographic location I can do business with you via email.
Bishop.consultants@gmail.com

----------

Dave A (19-Dec-11), Look02 (26-Feb-12)

----------


## magiclifestyle

This is such valuable information especially if someone has been lured into unaffordable debt as happened extensively prior to the NCA.

----------


## Dave A

> i start receiving emails from collectors demanding 2007-2011 payments with 40% discount option. I have not used the credit card in nearly 5 years and destroyed it.


I tend to be suspicious of this sort of debt collection call, particularly when they are offering a discount option upfront. Generally this is because they know that they are on shaky legal ground.

Worse still, it could be a debt collection scam.

----------


## Citizen X

When does a debt become due

Section 12(1) of the Prescription Act provides that: Subject to the provisions of subsections (2) and (3), prescription shall commence to run as soon as the debt is due. 
1.	This important determination of when the debt actually becomes due is fairly straight forward. A prescription claimant needs to show in the claim that prescription has started to run as at a certain date;
2.	This is also important where a defendant raises a plea of prescription, that is where, the creditor still takes the matter to court;
3.	In Gerike v Sacks 1978 (1) SA 821 (A) par 827-828, the court decided that when the defendant raise the plea of prescription, the onus is on the defendant to prove his defence and to prove the date when the plaintiff acquired actual or deemed knowledge required in terms of subsection (3) of the identity of the debtor and of the facts from which the debt arises
4.	The time when the prescription  runs  depends on the creditor‟s knowledge of his right against the debtor. The rules determining when prescription begins to run in respect of various kinds of debt are all subject to the general requirement that the creditor should have knowledge of the identity of the debtor and of the facts from which the debt arises.  Knowledge of the identity of the debtor for practical purposes means sufficient information for a process-server to be able to identify the debtor by name and address. The creditor must in fact know the debtor‟s identity, although knowledge of such facts will of course be relevant in determining whether the creditor exercised reasonable care to establish the debtor‟s identity. ;
5.	To conclude, if a creditor sends you statements, if your details are on their computer systems then the creditor is deemed to know the identity of the debtor. The debt will become due and payable when an instalment or payment is not made, eg X takes out a credit card with abc bank in January 2007 for an amount of R50 000. He uses this entire amount by June 2007, he continues to make payments up to and including 30  November 2007 and then for whatever reason makes no further payments. The debt become due and payable 30 December 2007. The creditor then has 3 years to collect this debt, sue out summons or get an acknowledgement of debt failing which a prescription claim can be submitted  as at December 2010. One must bear in mind that prescription does not take place automatically!!!

----------

Dave A (30-Dec-11)

----------


## nomdeplume

Where a judgment has been issued by a court (in favour of the creditor), when does the debt prescribe ? Example - If judgement was obtained in 2007, but no attachment order was ever carried out...or is the judgment valid indefinitely

----------


## Citizen X

Judgement debts prescribe in 30 years

----------

nomdeplume (29-Dec-11)

----------


## Look02

Hi guys

Sorry I was not able to reply earlier as i was on vacation.
A very hearty thank you for the advices/tips, special thanks to Viny for the wonderful outcome that you have obtained for me. I must say that the service provided by Viny was above and beyond expectations.
Once again, thanks for your support and assistance. Your service, including "The Forum SA" already recommended to others.

----------

AndyD (05-Jan-12), Dave A (05-Jan-12)

----------


## Dave A

What is the desired conclusion - a letter stating that they acknowledge the debt has prescribed?

----------


## Citizen X

*Indeed, you hit the nail on the head! An official letterhead from the creditor or their attorney stating that the prescription claim is acknowledged, that the debt is now prescribed and that their systems have been updated accordingly.*
*The document I prepare entails an assessment of the individual case. Once that is done depending on the type of debt it is, certain sections of the Act are invoked. Then there are the legal hurdles. There are exceptions to prescription which in this document I prove don't apply. I also utilize SCA caselaw to prove that in the individual case prescription applies. The problem and challenge, that is, in my opinion is when the client attempts to do so himself and just phone and say, " I claim prescription," Creditors and their attorneys can tell when they dealing with a layperson to law and they just ignore the claim all together but when they see that someone extremely knowledgeable in that area is claiming on behalf of a client they tend to take the claim very seriously. Here's a bird's eye view of overcoming 1 legal hurdle, an actual extract from one of my letters*
*3.2** It is herein submitted that the debt became due on or about 2008*
*A debt is “due” when it is claimable by the creditor and, as the corollary thereof, it is payable by the debtor.*


*3.3** The creditor is deemed to have had full knowledge of the identity of the debtor and all the facts from which the debt arose as all the prescription applicant’s details were/are on the creditor’s computer systems including but not limited to the account number, the amount owed at that time, the prescription applicant’s contact details The creditor by way of a process server would have been able to identify the prescription applicant by name and address.*

*3.3.1** There has been NO Wilful concealment by the debtor with regards to his contact information.*

----------


## Dave A

I've got a sneaking supicion in most of these cases where debt collectors are trying to collect prescribed debts (which seems to be ridiculously popular nowadays) the only response is going to be a deafening silence  :Frown:

----------


## Citizen X

That's exactly right! The creditor's and their agents are actively pursuing prescribed debts. They capitalise on consumer ignorance of their prescription right and how such right should be invoked. They simply looking for ackwoledgement of debt, payment arrangements and by doing so they keep the prescription period running and have recourse to the courts as well purely because prescription has not yet been claimed and ackowledged.

----------


## Citizen X

Update:
1. since we have revised our strategy by not only preparing prescription documents, but also serving them on the creditor or their attorney's we've obtained much better  results!

----------


## Citizen X

Update:
I did encounter one client who was not at all happy with our service but due to no fault of us!
To elaborate, whenever a client procures our services, and we prefer personal face to face consultations, We summarise the Prescription Act in laymans terms. We especially emphasize that there are certain events that can interrupt or delay prescription. We make it a point of stating that you must not have acknowledged debt or made payments.
I explained this to client X. Cleint X assured me that he didn’t acknowledge debt. We serve his prescription papers on the creditor in person, via email and via registered post. The creditor replies via post and email and includes the clients acknowledgement of debt in writing 1
This is what it said, “ Yes, I do owe you the money, but I’m unemployed. I lost my job. What do you expect me to do. Where must I get the money from.”
This is a legally valid acknowledgement of debt. Prescription will start to run a fresh from the date on that letter. Don’t make this mistake.

----------

Dave A (27-Jan-12)

----------


## Dave A

Great to hear business is good, Vanash  :Smile:

----------


## Citizen X

Thanks Dave, business is good but also very time consuming. I have not lost sight of the fact that I'm in my late 30's, I left work a few years ago to study law, I don't have employees, I have colleagues which I have to share the proceeds with. My main priority remains obtaining this LLB degree(which has been swea, blood and tears thus far) and being an evangelist!

----------


## Citizen X

*What does “stay’ prescription mean?*
*Stay is just a legal word for delay;**Besides events that cause prescription to run afresh such as acknowledgement of debt and actual payments to that account, there are certain events that will not cause prescription to run afresh but rather delay prescription. Let me explain.**One factor which will cause prescription to stay is when you are outside the Republic of South Africa i.e. overseas;**To illustrate. Mr X takes a personal loan of R20 000 from xyz bank in January 2008. He pays diligently for 6 months up to and including June 2008. He then stops paying for whatever reason. In principle the creditor xyz has 3 years from the date that the debt became due to collect that debt before it prescribes and we’ve addressed that prescription never takes place automatically, you need to claim for prescription i.e. submit a prescription claim. In this example the debt would be due and payable on 30 July 2008, so on the 30 July 2011 the debt becomes eligible for a boa fide prescription claim.;**Mr X is aware of this and intends to submit a prescription claim. BUT Mr X has travelled extensively during this period, in 2009 he went to the USA for 3 months, in 2010 he went to Canada for 2 months and in 2011 he went to work in Britain for 4 months and as such his credit bureau reports have been updated and now show that he was employed by leech company. In practice prescription is now “stayed for 9 months, the total of the months that he was outside the country. So we need to add 9 months to the original prescription period before it prescribes. The debt will effectively be eligible for a prescription claim on 30 April 2012;**A meticulous creditor will pick this up on the credit bureau, it is standard practice for a creditor to first check the credit bureaus to see if the debt is still listed before they will even entertain a prescription claim;**No xyz has an astute attorney Mr Snake. Mr Snake picks up that Mr X was overseas and now requests a copy of Mr X’s passport to essentially prevent the prescription claim from ever taking place and the creditor loosing such money;**In my opinion(only my humble opinion!) I would argue that it is unreasonable based on the reasonable man concept of law to request a personal document from Mr X on the following basis: 1: The creditor is not the judiary who by way of a court order can demand a passport; 2: the credit is not the executive(police force) who by way of a search warrant can seize a passport; 3: the creditor is not an international country who in terms of international law can indeed seize a passport holder’s  passport should such a person commit a crime on their territories which includes oceans, rivers and water ways; and 4: The credit is not a South African customs/airport official who can indeed seize a passport for example drug smuggling etc.*

----------


## Dave A

> *In my opinion(only my humble opinion!) I would argue that it is unreasonable based on the reasonable man concept of law to request a personal document from Mr X on the following basis: 1: The creditor is not the judiary who by way of a court order can demand a passport; 2: the credit is not the executive(police force) who by way of a search warrant can seize a passport; 3: the creditor is not an international country who in terms of international law can indeed seize a passport holder’s  passport should such a person commit a crime on their territories which includes oceans, rivers and water ways; and 4: The credit is not a South African customs/airport official who can indeed seize a passport for example drug smuggling etc.*


And I would argue that the debtor is obliged to release the passport for examination as a previous attempt to contact the debtor had been met with a response that the debtor was currently overseas.

At which point the old passport is "lost" and a new passport is tendered  :Stick Out Tongue:

----------

Citizen X (14-Feb-12)

----------


## Citizen X

Dave, that is absolutely brilliant! I was in a real impasse here that was notoriously difficult to negotiate around. You have essentially provided a very simple solution to a rather complex and drawn out legal dilemma for the prescription claimant!

----------


## Dave A

Not that smart if the debtor might need the visas in the lost passport one day.

There are also other avenues of enquiry.
A persistent creditor's lawyer might also pursue tax returns - a claim for an overseas allowance might embarrass.
Credit card records and bank statements too.

Quite hard to wander overseas without leaving any trail at all.

If there was a collection call, and the creditor was told the debtor was overseas, and there's enough money on the table, you might expect more requests.

----------


## Citizen X

STEVE FROM XYZ BANK IS MISLEADING HIS MANAGING DIRECTOR
I had a telephonic discussion with an attorney “ Steve”  on Monday from XYZ bank with specific regards to a prescription claim that we served on them on behalf of our client Mr’s Joubert.
1. I was utterly and completely mesmerized by “Steve’s” understanding of the prescription act 68 of 1969 or rather lack of understanding;
2. Let me explain, we served a prescription claim and followed up on it, we required as a common courtesy a letter to the effect that the prescription claim is acknowledged, processed and their systems updated accordingly. This debt is more than 5 years old, no acknowledgement of debt tacit or otherwise has taken place in this regard, no payments have been made by the debtor within a 5 year period;
3. In order to process a prescription claim, the creditor simply has to check ITC, XDS and Experian to ascertain whether that account is still listed, this will be prima facie evidence that the debt is indeed prescribed; the creditor will then establish whether any acknowledgement of debt has taken place tacit or otherwise as well as whether payments were made within that 3 year period which would cause prescription to run a fresh. If all is in order the creditor is legally, morally and ethically obliged to update their internal systems and indicate on that account that a prescription claim was submitted, that it was processed and that the debt is indeed now prescribed. They should as a courtesy confirm this in writing on their letterhead. They may well not be obligated to confirm this in writing but in my opinion should;
4. “Steve” from xyz bank an attorney by the way telephonically informed me that prescription can only be claimed if you go to court! I was left breathless,” where did “Steve” from xyz bank get his LLB degree, did he perhaps buy it!
5. What is more troubling is that he has mislead hid md in believing that this is indeed the case;
6. A case in point, we all know that Governmental departments are lacking in service delivery and that there is a difference between the billing system and the meter readings and that generally people are dissatisfied with the way that they are treated by the local councils, but guess what, even the Mookgophong Local Municipality has a policy document on the prescription act and procedures on how to process a prescription claim..go figure..see attached!!!!
7. In a case such as this we simply complete an affidavit to the effect that we have served a prescription claim in a proper manner endorsed by the magistrates court rules service of documents rules(even though the that act is not applicable for service of a prescription claim, we still ensure proper service). We then give the client this affidavit to keep for their records and if the creditor is dumb enough to sue out summons, the client will simply enter a special plea of prescription and yes, we will come and testify that we served the prescription claim on the creditor….

----------


## Dave A

On legal advice of dubious merit, have you ever read some of the blogs at Constitutionally Speaking?

At times some of our government ministers seem to get truly questionable advice and you have to wonder - maybe they'e telling their client what they *want* to hear rather than what they *need* to hear so that the paycheck keeps coming in  :Detective: 

Or maybe they're just incompetent  :Confused: 

Come to think of it, which is worse?  :Huh:

----------


## simbo

HI Viny,

I have a private debt that is over 3 years old!

The person I owe money to has never contacted me to cliam there money and I have made several attempts to contact them without reply.

On my final attempt to contact them I gave them a deadline for them to give me in writing the amount I owed and they responded with an amount alot higher than I thought the amount was so I made them an offer of an amount I was happy to pay and another deadline which they have now missed.

My question is after 3 years without any contact from them and therefore no attempts on there behalf to claim the money is the debt still valid given also that they have missed deadlines to claim there money?? 

[QUOTE=Vanash Naick;53595]1.	Are debt collectors hounding you by post and/or telephone for debts older than 3 years?
2.	Law students at an advanced stage of LLB studies have a legal way based on the law to have such debts cancelled!!!!!
3.	You will be provided with a letter stating certain sections  of a certain Act that you can either post, email or take personally to the debt collector or the creditor i.e. bank or store
4.	The law offers you a duel guarantee a) The creditor is obligated by law to cancel the debt, b) The creditor does not cancel the debt but sends you summons, this very act will become your defence
Eg.On 1 August 2008 you entered into a cell phone contract with xyz cell phones. You pay until 1 July of 2009, and then for whatever reason, you stop paying,  The creditor has from 1 July 2009 up to and including 1 July 2012 to collect this debt from you failing which the debt can be cancelled by following a specific legal procedure

----------


## Citizen X

In essence your offer was a tacit acknowledgement of debt. However, it can also be argued that this was not an acknowledgement of debt but rather a suspensive condition i.e. payment would only come about if a certain future state of affairs were realised namely the meeting of the deadline alternatively the acceptance of offer. It can be argued that the offer, in terms of the law of contract, is ony an invitation to do business subject to acceptance of the offer based on the terms and conditions of the offer. If I were in your position I would claim prescription as there's nothing to loose by claiming prescription i.e. a prescription claim can't harm you, if anything it may just benefit you. Rather have something on record that you can use in your favour at a later stage. *This however is completely up to you!*

----------


## Look02

I can't begin to tell you how much I appreciate all of the effort that you made on my behalf. Thank you is simply not enough for your tireless endeavors and hard work which has given me some contentment now. I hope you have a continued success in representing those in a time of true need. I can put the past behind me now and start my life anew.
I will soon make an appointment to see you in person, just waiting on my travel agent to confirm my flight to South Africa.

----------

Citizen X (26-Feb-12)

----------


## Citizen X

Many thanks indeed for the very kind feedback. When I get such feedback it is truly motivating!

----------


## Citizen X

I'm going to post an attachment in the near future that will address of aspects of prescription and all eventualities and scenarios in one document so that you can be equipted to submit a prescription claim yourself and get the desired results!!!

----------


## Citizen X

Hi guys!

1. As promised, in this my final post on prescription claims I empower YOU to claim for prescription without having to pay a middleman to do it for you!
2. Find attached an actual prescription claim letter(this one is for debts that prescribe in 3 years), modify it with your personal information, ensure that you state the date that the debt became due;
3. Find attached a FAQ doc that answers all questions on presciption claims
I trust that this thread has been of benefit to you!
4. Enforce your rights, don't be afraid to claim for prescription, " The biggest man you ever gonna see was once a baby!"Bob Marley :Cool:

----------

Dave A (03-Mar-12)

----------


## ANTONETT

Can someone please help me? This lady contacted my employer yesterday 04/06/2012 wanting to confirm my employment.  I found out it is some debt management and that I have made a loan in 2005 from some company.  I told her that I do not remember it and that she should send through the contract that I have signed.  I cannot remember not paying it as it is 7 years ago.  I never heard from them since 2005.  Was it appropriate from her to contact my employer and what should I do now.  Please help me

----------


## Nydiap

Hi Vanash,

I have old debt from 2006 but now see that in 2011 a judgement was put on my credit record that was not there before, can they do this and is this then still prescribed debt?

----------


## Citizen X

1.      It’s clear that default judgment was obtained against you. Default judgment is granted when a defendant does not file a notice of intention to defend. A judgment is collectable for 30 years but only stays on credit bureaus for 5 years after which it is automatically expunged. A judgment creditor is well within their rights to obtain a garnishee order i.e. debit order against your salary. This is simply done by contacting your HR;
2.      Extinctive prescription does not take place automatically. For certain types of debt if a period of 3 years has elapsed from the date of your last payment, you become eligible for extinctive prescription. Should you not claim extinctive prescription, a creditor is well within their rights to sue out summons, in which case judicial process interrupts prescription.
3.      The best way forward for you, given the fact of judgment is to pay the judgment creditor in full, get a consent affidavit from the creditor wherein they, in the prescribed manner, consent to rescission, you then instruct counsel and have an attorney go to court to have the judgment rescinded.

----------


## Defcon

Vanish,

Your advice on this thread is much appreciated. I was contacted by a debt collector today, and not being aware of how things work acknowledged my debt. However the default was over 3years ago and I just want to know whether the acknowledgment on such old debt would give them further grounds to collect? I have not made payment, but would like to know what my options are.

Thanks in advance

----------


## Citizen X

1.It depends on how the acknowledgement was made. The Act allows for even tacit acknowledgement. The Act is silent on unlawful duress. Quantitative research revealed that more than 2000 people out of 3086 were threatened with warrant of arrest at their work and this caused them to pay,
2. It also depends on what the amount is. Litigation is costly, it’s not worth anyone’s while to go to court over a few thousand rands.
3. Under the circumstances you still have the right not to pay, but the creditor still has the right to sue out summons. You can change the summons on merits or raise prescription;
4. It can’t harm to still claim extinctive prescription.
I’d just like to take this opportunity to explain something. Substantive law deals with rights and obligations, so it can tell you what your rights are and what obligations you have or no longer have.BUT, it adjective law in particular civil procedure which gives you the very specific method for recourse through the courts i.e. either summons or motion proceedings. Courts are moving towards motion proceedings because it’s cheaper and far quicker to completion.
With extinctive prescription, you can claim extinctive prescription directly from the creditor or if a matter proceeds to court, raise it as a special plea…

----------


## Mark101

Hi Vanash,

I have a quick question if you dont mind, do all debt at the bank have a 30 year period for collection (ie: personal loan) or is it just applicable to home loans?

----------


## Citizen X

The sort answer is that all debts become eligible for extinctive prescription in 3 years besides tax debts, state held debts, and bonds. Bonds become eligible for extinctive prescription after 30 years! The 3 year category includes credit cards, retail apparel accounts, vehicle finance, furniture finance and yes personal loans. There are requirements however, it must not be a judgement debt, no payment must have been made in this period and no acknowledgement of debt must have been signed in this period.. Soon I'm going to reintroduce extinctive prescription to such a point where the finished product will be beyond reproach!

----------


## Citizen X

A reintroduction to extinctive prescription
The case for extinctive prescription claims in South Africa
I have resolved to reintroduce extinctive prescription in an academically acceptable manner. To do so , one would have to have a source of references and some form of table of contents.
References: I will cite a full source of references at the end of this topic, it won’t be anything soon! In the interim, I’ve resolved to using footnotes to cite references.
Table of contents: I do have a table of contents, but it won’t be possible to include page numbers for the purpose of these posts, but you may accept that posts will follow the table of contents. 
Posts in stages: I will make posts in stages, and number them i.e. Post 1

----------


## Citizen X

Post 1
*TABLE OF CONTENTS*

*Number*
*Item*
*Page*

*1*
*Introduction*


*2*
*Hypothesis*


*3*
*An Outrageous Question*


*4*
*The Prescription Act as a Statute*


*4.1*
*A Statute remains an active Statute until repealed*


*4.2*
*The National Credit Act and a sense of urgency, The Prescription Act 68 of 1969 and no sense of urgency*


*4.3*
*No definitional clause in 1969 Act*


*5.*
*Historical Framework*


*5.1*
*Prescription dates back centuries*


*5.2*
*Extinctive prescription forms part of South African Private Law*


*6*
*Interpretation of the 1969 Act*


*6.1*
*Statutory interpretation*


*6.2*
*Stages of interpretation of the 1969 Act*


*6.3*
*The concept of extinctive prescription*


*6.4*
*The common law position of extinctive prescription*


*6.5*
*Extinctive prescription in practice*


*6.5.1*
*Meaning of as soon as the debt is due*


*6.5.2*
*Meaning of debt*


*6.5.3*
*Debtor’s wilfully preventing creditor from becoming aware of the knowledge of the debt*


*6.5.4*
*Knowledge of the debtor*


*6.5.5*
*Corporate South Africa is by and large an exception to section 13 of the 1969 Act*


*7*
*The difference between an extinctive prescription claim and a special plea of prescription*


*7.1* 
*Example of Plaintiff’s particulars of claim*


*8*
*The need to invoke extinctive prescription when claiming prescription directly from a creditor*


*8.1*
*A case in point*


*8.2*
*Remedy in cases where the creditor refuses to process an extinctive prescription claim*


*8.3*
*Debt review and extinctive prescription*


*9*
*A parallel between Public Law and Private Law*


*10*
*Professional ethics and an attorney providing a debt collector function*


*10.1*
*Estoppel*


*10.2*
*Law and a crisis of an ethical nature*


*11*
*Choice of research framework*


*11.1*
*Research design and methods*


*11.2*
*Quantitative research*


*11.3*
*Post mortem Questionnaire*


*12*
*Qualitative research*


*12.1* 
*Background*


*12.2*
*The pre-determined approach*


*12.2.1*
*Mr A*


*12.2.2*
*Mr B*


*13*
*An investigative journalism approach*


*13.1*
*A gross abuse of the section 57 and 58 procedures of the Magistrates Court Act 32 of 1944*


*13.1.1*
*Mr F and an eighteen year old debt*


*13.1.2*
*The document Mr F signed*


*14*
*A theory as to why a potent statute can become diluted over time*


*14.1*
*Distortion of communication*


*14.2*
*A case in point*


*15*
*Findings*


*16*
*Recommendations*


*17*
*Conclusion*


*18*
*References*



*Annexure A: Questionnaire*

----------


## Citizen X

1. Introduction
This work will address the practical position of extinctive prescription claims in South Africa today. It will address the ease alternatively the difficult of claiming extinctive prescription in terms of section 11(d) of the Prescription Act 68 of 1969. It will reveal shortcomings in industry and the Prescription Act itself and perhaps more importantly it will make recommendations for the amendment of the 1969 Act. This work in and of itself is an impassioned plea to the South African Law reform commission to initiate the amendment of the 1969 Act. The purpose of such recommended amendments is to make the Act more meaningful and applicable to a debtor who is eligible for an extinctive prescription claim and simply wants to claim extinctive prescription. The finished product of this work includes: An extinctive prescription precedent, a recommended covering letter, a recommendation of how the Act should be amended, a recommended schedule where such a schedule would be preferred to an amendment, a recommendation for enabling legislation where enabling legislation would be preferred to an actual amendment of The Act or an addition of a schedule to the Act and a recommendation for a training program on extinctive prescription with specific learning outcomes. This paper will address debts which become eligible for an extinctive prescription claim after a period of 3 years has elapsed from the date of the debt becoming due without any events that interrupt prescription. For classification purposes the natures of these debts are: 1. personal loans, credits cards and vehicle finance providers by registered financial service providers, 2: Retail apparel and accessories provided by registered retail credit providers, 3: Furniture and household goods and appliances provided by registered retail credit providers and 4: Telecommunication goods, service and accessories provided by registered  credit providers. My reference to creditor is by and large corporate South African banks, financial institutions and major retailers. This reference is not only essential but rather quite vital as I will demonstrate in this essay that by and large the provisions of sections 12(2), (3) and section 13[with the exception of section 13(b)] will not be applicable to these organisations alternatively will not find reference to any meaningful dispute where such organisations are the creditor. For the purposes of extinction of debt by the passage of time, sections 10 up to and including section 18 of the 1969 Act apply. What I’m about to postulate is at immediate odds with ‘SLRC Discussion Paper 126, Project 125, Scope of Review’(2011:5) where it is provided that, _‘__The review is limited to harmonisation of prescription periods, and does not include a general review of prescription in general, or the extinction of debts by prescription in particular.’_

2. Hypothesis
The Prescription Act 68 of 1969 appears to be an unproblematic South African Statute. This inference is drawn because the Act itself is fairly straightforward and the requirements for extinctive prescription are reasonably clear. The Act in and of itself does not answer many pertinent questions such as:  How does one claim extinctive prescription? How does a creditor process an extinctive prescription claim? How does the finality and legal certainty which extinctive prescription is designed to promote get implemented? Does the creditor merely access the debtor’s account and add a note, “This debt is prescribed, the debtor has claimed extinctive prescription,” or does the creditor confirm to signed letterhead that a debtor has claimed extinctive prescription; the prescription claim has been processed, that the debt is prescribed, that the creditor abandons his claim and that all credit bureaus have or will be updated accordingly? The ultimate problem statement is: How does a debt, regardless of its monetary amount, which is eligible for extinctive prescription, becomes extinguished by prescription in practice to a point where a debtor legally owed a certain amount of money to a creditor yesterday to a point where after the fact of an extinctive prescription claim the debtor no longer owes the creditors any money whatsoever and there is certainty about this fact both to the creditor and to the debtor.
Given the overall aims set out above and for the sake of a clearly defined hypothesis, I have chosen a slight deviation from conventional hypothesis by dissecting my hypothesis into six problem statements.
1. Many financial institutions and major retailers don’t have rules, regulations, policy and procedure in place to process extinctive prescription claims;
2. Many financial institutions and major retailers cannot appreciate the difference between an extinctive prescription claim and a special plea of prescription;
3. Many debt collectors and attorneys acting on instruction of financial institutions and major retailers intentionally preclude a debtor from claiming extinctive prescription and engage in unethical conduct to get a debtor to unwittingly make a payment on a debt that would otherwise be eligible for an extinctive prescription claim. The debtor then unwittingly acts to his/her own prejudice by causing the prescription period to run afresh
4. Many debt collectors and attorneys acting on instruction of financial institutions and major retailers intentionally preclude a debtor from claiming extinctive prescription and engage in unethical conduct to get a debtor to unwittingly acknowledge debt that would otherwise be eligible for an extinctive prescription claim. The debtor then unwittingly acts to his/her own prejudice by causing the prescription period to run afresh
5. There is a training and development need for extinctive prescription in banks, financial institutions and major retailers. Many financial institutions and major retailers don’t know how to process an extinctive prescription claim. It’s not a case where they don’t want to process such an extinctive prescription claimbut more a case that they don’t know how to process an extinctive prescription claim simply because they received no adequate training on extinctive prescription.
6. Many financial institutions and major retailers are used to a situation where they enforce their rights to collect a debt either by using their own internal special collections department, a debt collector or an attorney. Consequently they are used to a situation where they sue out summons for a debt and in many cases easily obtain judgment as the debtor does not file a notice of intention to defend. The aforementioned are simply not used to a situation where a debtor attempts to enforce his/her rights with regards to extinctive prescription. An analysis of these presuppositions will highlight the plight of a debtor who merely wants his/her debt obligation to be extinguished by extinctive prescription based on what the law itself says.
*Gilmore S (2011:1) states that, the art of** practising** law is not to know all the answers, but to know where to find the answers. In order to find the answers, the practitioner must know what to look for. In order to know what to look for the practitioner must be able to sift the facts at hand and to define the problem he or she is dealing with’ (V Tunkel & A de W Horak xi). Academic study should teach one the requisite skills to ‘sift the facts at hand’. However, one is still left with the problem of finding the authority that you need to substantiate your case or finding the written law that will back up whatever case you are making. The information lies in all the physical (both print and electronic) sources of our law — the common law; the legislation; the law reports; the books and the** encyclopaedias**.* 
I intend to substantiate my case.
3. An outrageous question
Reason with me! Is it necessary for us to reinvent the wheel by using the concept of the ‘Twelve Tables,’ to articulate that certain debts become eligible for an extinctive prescription claim alternatively prescribe after the passage of a certain period of time? In order to give full effect to this outrageous question alternatively satirical gesture, a Twelve Table equivalent would be a large notice board in every bank, financial institution and major retailer’s various branches stating that certain debts prescribe after 3 years has elapsed from the date which the debt became due alternatively the month after the date of the last payment, provided that no payments have been made within this 3 year period, no acknowledgement of debt has taken place and no summons has been sued out! There you have it! Our problem statement glaring at us from this page namely most debtors are unaware of their rights with regards to extinctive prescription and the actual procedure of processing an extinctive prescription claim are widely varied in Banks, Financial Institutions and major retailers. What we require here is simple standardization. Allow me to reason with you to a point where we all draw the same conclusions. To reason means to be able to identify and follow the arguments presented by specific thinkers (i.e. what claims are made or conclusions drawn and how they are substantiated [the premises]) and to be able to assess the quality and validity. UNISA(2012: vii). All reasoning is thinking, but not all thinking is reasoning. Copi (1969:4). Since valid inferences are inferences where the conclusion is logically entailed by the premises, interest in logic is focused on the study of logical entailment or consequence. All wood et al(1997:16). _Reason with me!_

----------


## Citizen X

4. The Prescription Act as a Statute
The Prescription Act 68 of 1969 is classified as a statute, alternatively legislation, alternatively an Act of Parliament, alternatively enacted law texts.*[1]* It may also be classified as original legislation. This Act was assented to on 23 May 1969 and commenced on 1 December 1970. It was gazette on 4 June 1969; Government Gazette number 2421 Volume 48, as at this time one could buy the Government gazette from any Post Office for 10 cents.*[2]* There is no doubt whatsoever that it is an authoritative source of South African Law by mere virtue of its classification as an Act. The 1969 Act is not an academic opinion neither is it an article in a law journal. It is for all practical intents and purposes the law.
4.1 A Statute remains an active Statute until repealed
Regardless of how the implications of its provisions may be accepted by creditors and debtors, it remains the law. The notion that corporate South Africa may find it to be unjust in so far as it brings about the extinction of a right to claim a debt after the passage of time, either by the debtor claiming extinctive prescription from the creditor or by the debtor filing a special plea of prescription in court, does not negate the fact that the Prescription Act is law and remains law. A law, an Act of parliament need not be just, reasonable or fair to be law. In fact we have a number of Acts which are perceived to be unjust, unreasonable or unfair. The Choice of Termination of Pregnancy Act 92 of 1996 is just one example. Many religious organizations have expressed outrage of the practical implications of this Act which allow for a woman regardless of her age to have an abortion legally. The outrage expressed is of no consequence to the Act itself nor does it change its status as Legislation. The 1969 Act should be understood from this perspective. It is a legitimate statute in much the same way as: The Criminal Procedure Act 51 of 1977, The Divorce Act 7 of 1979, The Wills Act 7 of 1953, The National Credit Act 34 of 2005 and the Consumer Protection Act 68 of 2008, to name a few. If one were to ask a simple question: What do the aforementioned have in common? The simple answer would be they are all statutes.
4.2 The National Credit Act and a sense of urgency, The prescription Act 68 of 1969 and no sense of urgency
The National Credit 34 of 2005 and its resulting regulations have impacted directly on litigation. A creditor must first send a letter of demand which is delivered to a consumer at his address before suing out summons. The Plaintiff’s Particulars of Claim will invariably contain the following or similar assertion_ (Particulars of claim will never start with this paragraph! It’s included here to demonstrate that the NCA is held in such high regard that even obligatory paragraphs need to be included in the Plaintiff’s particulars of claim)_:



5 The Plaintiff is entitled to approach the Court for an Order as contemplated in Section 30 of the National Credit Act of 2005 in that:
5.1 The Plaintiff issued a Notice to the Defendant in terms of Section 129 of the Act and delivered such Notice in the prescribed manner,

5.2Notwithstanding the above, the Defendant has not responded to the Notice, alternatively has responded to the Notice by rejecting the Plaintiff’s proposals;
5.3The time periods, as prescribed in Section 130 of the Act has lapsed;
5.4The Plaintiff has no knowledge of any debt review proceedings instituted by the Defendant as provided for in section 86 of the aforesaid Act.
With the commencement of the National Credit Act 34 of 2005, we have seen changes to Court Rules, changes to the how litigation should commence, a body which one can complain to for non- compliance by the creditor and Corporate South Africa developing policy documents and training programs to be compliant. This is in stark contrast to The Prescription Act. 

4.3 No Definitional Clause in 1969 Act

On conducting a post mortem of this Statute with the precision of a surgeon about to conduct surgery, it was alarming to find that the 1969 Act does not include a definitional clause section nor does it have a preamble. A preamble is necessary to clarify the underlying philosophy of the Act. The next enquiry is then: What is the purpose of the 1969 Act? The purpose is found in the long title. In this case it simply states ‘*To consolidate and amend the laws relating to prescription’.**[3]*The 1969 Act does have practical importance.*[4]* It should be the subject of greater theoretical analysis and it should not be seen as a technical and theoretically unrewarding aspect of statute law.*[5]* If it is accepted that the 1969 Act is a rule of law and further that there is some degree of uncertainty as to its interpretations by both creditors and debtors and further that there is uncertainty as to the difference between an extinctive prescription claim and a special plea of prescription, then it should at the very least be also accepted that some form of procedural-law mechanisms are required to give proper effect to the 1969 Act. Law means any law, proclamation, ordinance, Act of Parliament or other enactment having the force of law.*[6]*

5. Historical framework

5.1 Prescription dates back centuries

The concept of prescription is not new at all. It originates from Roman law. It dates back to what is commonly referred to as ’The era of early Roman Law(753 BC – 250 BC).’*[7]*The earliest manifestation of prescription dates back to 450 BC to what is known as the ‘Twelve tables.’ The law was literally written on metal plates and placed in the central business district of that day. Anyone could go and inspect this written law.*[8]* In 448 BC extinctive prescription was not distinguished from acquisitive prescription. It noteworthy that the concept, that one could obtain rights, merely by the passage of time can be traced to The Law of the Twelve Tables. The Twelve tables were written on twelve bronze tablets which were strategically placed in the central business district of that day so that all could read its contents. Table six, law six reads as follows: ‘Immovable property shall be acquired by usucaption after the lapse of two years; other property after the lapse of one year.’*[9]* So there it was for everyone to see, the simple passage of time could allow you obtain rights today, which as early as yesterday you did not enjoy!*[10]*
The nature and effect of prescription will always remain the essential point of departure. The first prescription time period was introduced by emperor Theodosius in AD 424. It was referred to as _praescriptio longi temporis._*[11]* Roman Dutch writers were largely unanimous in postulating that prescription has a strong effect, extinguishing the obligation itself as well as the remedy.*[12]*

*[1]* Vide Prescription Act 68 of 1969 http://0-discover.sabinet.co.za.oasi...ument/NTL12110

*[2]* Vide http://0-discover.sabinet.co.za.oasi...Gov/gg2421.pdf. Date of use 3 July 2012

*[3]* Loc cit n 4

*[4]* Loc cit n 4

*[5]* Vide MM Loubster. Extinctive Prescription. 1996. 1

*[6]* Loc cit n 4 Prescription Act 68 of 1969 & Vide s 2 Interpretation Act 33 of 1957. http://0-discover.sabinet.co.za.unisa.ac.za/document. Date of use 3 July 2012

*[7]* Vide Origins of South African Law Studyguide.2008. 44

*[8]* Op cit 49

*[9]* Vide The Law of the Twelve Tables http://www.constitution.org/sps/sps01_1.htm. Date of use 3 July 2012 et seq Law of the Twelve Tables http://www.britanica.com/ebchecked/t...-Twelve-Tables

*[10]* Confer Van Oven JC. Leerboek van Romeinsch Privaatrecht. (3rd ed 1948). 82

*[11]* Op cit page 4 MM Loubster

*[12]* Ibid page 5, confer De Wet Opuscula Miscellanea page 104
To be continued......

----------


## mligas1

Hi Vanash

I have been searching through the net for similar situations as mine and happen to come across this forum and thread. I enrolled with a well known tertiary institution back in February 2008 for a 1 year course and only paid registration fee + tuition for that quarter. I attended until around September on and off and couldn't make it anymore because my schedule couldn't accommodate this and i couldn't afford to make payments. Nobody contacted me since until one dreaded day in November 2011 when a debt collection company called In-quest contacted me saying i know i owe and must make payment. They gave me a six month option which was too much per month and then extended to a twelve month option which was still too much per month. Last contact they made with me was in June 2012, and then today, where we had a massive argument. No insults nor bad words were exchanged, but they claim i committed to something which i did not. I asked them if their calls are recorded as they say they are and to go and QA all the last recorded calls and they refuse. Now just over 3 years later since inception of this debt, what do i do? i have no letters or anything from the institution, nor the debt collector.

Please assist with some advise.

Regards

----------


## Citizen X

Hi Mligas1,
I will only be too happy to assist you!(In fact if you could only wait until the 21 November 2012, I would deal with this matter for you pro bono with my personal intervention!!!) I doubt that you can wait that long, so I’m going to set you in the right direction, right here and right now:-
1. Calculation of the prescription period: It appears ex facie(from what you say, I mean) that you made your last payment was made on or about 28 February 2008; the debt becomes due and payable when you are next required to make a payment, this would normally be the end of the very next month. That being said, this is a tertiary institution, so they may argue that the debt became due and payable when you unilaterally left them i.e didn’t go back for classes etc. So for a safety margin, lets say that the debt became due and payable at the end of October 2008;
2. Your debt became eligible for extinctive prescription on 30 October 2011. You were well in your rights to invoke prescription there and then, but you didn’t; you also didn’t acknowledge debt in writing or in any other way and you also made no payments whatsoever on this account since February 2008;
3. In this instance I sincerely belive that you can still calim extinctive prescription, But I get to that, I would like to explain why you need to invoke extinctive prescription despite the fact that the legislatures had intentions for the 1969 Act to have a very strong extinctive prescription effect, simply passage of time was meant to release you from this obligation but there is a flaw in the 1969 Act itself, let me explain with this actual example and an actual response from the horses mouth so to speak*( I will advise directly in point 4 after my ramblings here!):-*“8. The need to invoke extinctive prescription when claiming prescription directly from a creditor
Should we conclude that the 1969 Act has a strong extinctive prescription effect then it begs a simple question; why does a debtor need to claim extinctive prescription from the creditor? Alternatively, why does a debtor need to invoke section 11(d) of the 1969 Act?
The answer can be found in the simple fact that there is no law precluding a creditor from demanding payment on a debt several years after such a debt has become eligible for extinctive prescription. Two more specific answers can be formulated from section 10(3) of the 1969 Act. In the first place, Section 10(3) reads, notwithstanding the provisions of subsections (1) and (2), payment by the debtor of a debt after it has been extinguished by prescription in terms of either of the said subsections, shall be regarded as payment of a debt. The immediate inference is that the only logical way to bring about the legal certainty that the 1969 Act is designed to bring about is for the debtor is claim extinctive prescription. I submit that the preferred manner of claiming extinctive prescription is in writing along with the ability to prove service on the creditor. To appreciate fully what section 10(3) is in essence saying one simply has to be cognisant of the provisions it names namely subsection 1 and subsection 2 and in particular subsection one. Subsection one reads, a debt shall be extinguished by prescription after the lapse of the period which in terms of the relevant law applies in respect of the prescription of such debt. Logical inference will have to dictate that if a debt will become prescribed after three years but that payment of debt will be regarded as payment and thus have the effect of causing prescription to run afresh that the debtor must do something to bring about certainty. This is claiming extinctive prescription.
In the second instance, section 17(1) and (2) provides that, A court shall not of its own motion take notice of prescription and further that A party to litigation who invokes prescription, shall do so in the relevant document filed of record in the proceedings: Provided that a court may allow prescription to be raised at any stage of the proceedings. The court is not going to take judicial notice of extinctive prescription, should the defendant not raise prescription as a defence that the matter will simply commence on the merits of the particulars of claim. It is this provision of this Statute that allows me to conclude without any doubt that despite the strong effect of extinctive prescription, it needs to be claimed from a creditor and where a creditor sues out summons, it needs to be raised as a special plea. The following will demonstrate that a reputable debt collecting agency perceives extinctive prescription from this perspective. 
Mr D had an ABSA credit card account. He signed an acknowledgement of debt on 31 August 2005; this caused prescription to run a-fresh from that date. In effect he became eligible for extinctive prescription on 31 August 2008. His debt was bought by West Central Capital and handed over to Nimble Collection services. They started demanded payment from Mr D. They were well within their rights to do so. Mr D was unaware of his rights. He came across my internet posts and requested my personal intervention. A limited power of attorney was drawn up. My mandate was as follows:

To obtain any and all statements pertaining to bank accounts where there is a direct or indirect dispute of the actual amount owing;Complete any and all Prescription Claim documents in terms of the Prescription Act 68 of 1969 on my behalf;Serve any and all Prescription Claim documents in terms of the Prescription Act 68 of 1969 on my behalf, to any creditor, attorney, debt collector, any bank, any financial institution, any company, business, natural person or juristic person whatsoeverTo claim prescription, on my behalf, from any creditor, attorney, debt collector, any bank, any financial institution, any company or business, juristic person and/or natural person.To state my case and/or argue any dispute(s) with regards to such extinctive prescription claim on my behalf.To escalate any relevant matter to the Banking Ombudsman on my behalf, and state my case if and where necessary and only after consultation with me;To file written complaints with any law society(where an attorney is involved) and unethical behavior is alleged only after consultation with meTo file any written complaint with the NCA regarding any non- compliance of any creditor that I have dealt with only after consultation with me



I subsequently served the extinctive prescription claim onbbbbbbbservices. Their final response on a signed letterhead was as follows:-





“ Dear Sir,

We refer to above complaint received from your office. *In terms of section 10(3) read with the provisions of section 17 of the Prescription Act 68 of 1969, a creditor is entitled to collect debts until such time as a debtor claims prescription.* Your claim of prescription has been investigated and found to be valid. In consequence thereof we have now closed our file.”


*My point of departure will always remain one of claiming extinctive prescription directly from a creditor.* I reason as such because it is in essence the debtor and creditor which have a contractual relationship and not the debtor and the court, furthermore, if we accept that our courts are over- burdened, then this is one way of easing that burden as a creditor who after the fact of extinctive prescription being claimed by the debtor still sues out summons then they do so with the knowledge that they don’t have a cause of action. 

This action of suing out summons should be visited by further penalties on the creditor such as a counter claim for damages which the courts should grant. This would be in the interest of justice!

8.1 A case in point
In civil proceedings the benchmark measure is on a balance of probability alternatively a balance of preponderance. In criminal proceedings the benchmark measure is proof beyond a reasonable doubt. On the assertion that a debtor can claim extinctive prescription directly from a creditor short of going to court, I would like to be subject to proof beyond a reasonable doubt.
Such proof will emerge by way of simple inference. Analysis of quantitative results showed that 96% of respondents were contacted by the creditor and/or debt collector regarding a debt that was eligible for extinctive prescription. These creditors did not go to court to enforce their rights i.e. Send the final demand letter to the debtor in terms of section 129(1)(b)(i) of the National Credit Act 34 of 2005*[1]*; they did not sue out summons(depending on the amount claimed) either in terms of rule 5 and 6 of the Magistrates Court Rules;*[2]* neither did they sue out summons in terms of Rule 17 of the Uniform rules of court.*[3]*
In essence they utilising measures to collect the debt short of going to court, no litigation is involved in their debt collecting techniques. Simple logic will have to dictate that if they not going to court then; why should a debtor go to court to relieve him/her of his obligation in terms of extinctive prescription? The debtor too can use techniques, short of going to court, to claim extinctive prescription in writing directly from the creditor.”



*Point 4: You need to follow this link http://www.theforumsa.co.za/forums/s...lea?highlight=*
a) Modify the template for claiming extinctive prescription and do two things, serve it via registered mail and email or personal service and email, always better to do both!

b) There is a covering letter in that link as well, use that covering letter;
c) Then just for your own record, modify the affidavit there, your id, name ..ps. same name at bottom i.e. deponent, print the affidavit, take it to your police station and have it commissioned, take your ID document with you..



Please keep us informed as to your case!

Kind regards,

Vanash










*[1]* Vide National Credit Act 34 of 2005. http://0-discover.sabinet.co.za.oasi...ac.za/document.



*[2]* Vide Faris J and Hurter E. The Student Handbook for Civil Procedure. Lexis Nexis. 2010. Page 157 & 158

*[3]* Supra n 55.Page 75 & 76

----------

Defcon (04-Oct-12)

----------


## mligas1

Vanash,

Thank you so much for your reply i appreciate it very much. 

I have not received any claims in writing by email nor postal address, and i lived at the same postal/physical address for the whole of 2008. in fact i only relocated from that address on 03 April 2009. I only received few phone calls (4 to be precise) from in-quest, the first being in November 2011. They now say they will hand the matter over to the attorneys. All the info i mentioned is true and precise as well. Why would they wait so long to collect what is supposed to be owed to them? Who do i serve the letter for claiming instinctive prescription to? Must i wait for the attorneys to contact me first or must i act first? Again i don't know which attorneys in-quest will use as well. If it means that i should wait for attorneys to contact me first, then i will wait and hope that it will be sometime close to the 21 November 2012 for your assistance. My concern is that by the time they contact me, they would have blacklisted me on ITC already. 

Please advise further.

Regards

----------


## Citizen X

I won't advise you to wait for the attorneys of instruction, might I suggest that you act as per my practical directives!

----------

Defcon (04-Oct-12)

----------


## Defcon

Vanash,

Just a quick thank you for helping bring us up to speed on our rights.  Had the debt collector phone me a few times, but since I mentioned extinctive prescription, I haven't heard from them again.

Cheers  :Smile:

----------


## Citizen X

> Vanash,
> 
> Just a quick thank you for helping bring us up to speed on our rights. Had the debt collector phone me a few times, but since I mentioned extinctive prescription, I haven't heard from them again.
> 
> Cheers


Hi Defcon,
I very pleased to hear that. Might I suggest that you have the word format affidavit attached at the following link*http://www.theforumsa.co.za/forums/s...lea?highlight=* also completed i.e. modify name, id, residential address etc and have it commissioned for your records. Extinctive prescription is meant to punish creditors who don't sue out summons within 3 years from the date on which the debt became due, it's aimed in the public interest and is designed to promote legal certainty. I submit that you'll only have complete legal certainty if you get a signed letterhead from the creditor/debt collector/attorney stating that the debt is prescribed and further that they abandon their claim and completely close their file. Here's my concern, the debt collector tells you so telephonically but on all systems the debt is still classified as collectable!

----------


## Citizen X

> Vanash,
> 
> Thank you so much for your reply i appreciate it very much. 
> 
> I have not received any claims in writing by email nor postal address, and i lived at the same postal/physical address for the whole of 2008. in fact i only relocated from that address on 03 April 2009. I only received few phone calls (4 to be precise) from in-quest, the first being in November 2011. They now say they will hand the matter over to the attorneys. All the info i mentioned is true and precise as well. Why would they wait so long to collect what is supposed to be owed to them? Who do i serve the letter for claiming instinctive prescription to? Must i wait for the attorneys to contact me first or must i act first? Again i don't know which attorneys in-quest will use as well. If it means that i should wait for attorneys to contact me first, then i will wait and hope that it will be sometime close to the 21 November 2012 for your assistance. My concern is that by the time they contact me, they would have blacklisted me on ITC already. 
> 
> Please advise further.
> 
> Regards


I suspect that you were already listed in 2008 and the listing stayed for 3 years after which it was automatically expunged. If there's double jeopardy, you can lawfully challenge that with the NCR. *I'm a man of my word, this is a reputable forum, I won't be dishonest on TFSA, I will handle your matter pro bono, I will carry all the telephone costs, personal service costs, registered mail costs, time and labour etc, but I will literally only be in a position to assist you on 22 November 2012
*I am an actual person, not some spam bot, so, if at this time you still have this predicament, i.e. your efforts as per my directives did not yield the desired results, you can come and see me in person. I'm in Lenasia, South of Johannesburg alternatively, I can effectively also get all the required information from you via email. Regrettably this can only take place from 22 November 2012! I would much rather you go ahead as directed in the interim.

----------


## mligas1

Thanks Vanash,

I was not listed from 2008. I know this because i worked for a bank from 2006 - 2011  where constant credit checks were done. From 2008 all through the years until 2012, i made credit purchases, and i have a subscription with transunion to get updated credit reports and notifications of any activity on my credit report. I forgot to mention that in June 2012, in-quest sent me a letter of demand to my email stating i pay a certain figure over 12 months. i didn't respond to that mail. 
1) Will that non response work against my favour? 
2) Can i send the documents directly to in-quest stating the reference number that they gave me.

Thanks again. 

I just want to do this the right way. I know these people are brilliant at looking for loopholes and i don't want to give them an inch of room to maneuver, which makes me pretty nervous at the fact that i might end up incurring more unnecessary costs.

Regards

----------


## Citizen X

> Thanks Vanash,
> 
> I was not listed from 2008. I know this because i worked for a bank from 2006 - 2011 where constant credit checks were done. From 2008 all through the years until 2012, i made credit purchases, and i have a subscription with transunion to get updated credit reports and notifications of any activity on my credit report. I forgot to mention that in June 2012, in-quest sent me a letter of demand to my email stating i pay a certain figure over 12 months. i didn't respond to that mail. 
> 1) Will that non response work against my favour? 
> 2) Can i send the documents directly to in-quest stating the reference number that they gave me.
> 
> Thanks again. 
> 
> I just want to do this the right way. I know these people are brilliant at looking for loopholes and i don't want to give them an inch of room to maneuver, which makes me pretty nervous at the fact that i might end up incurring more unnecessary costs.
> ...


Hi Mligas,
In the subject box, include their reference number, the account number if you still have that and 'extinctive prescription claim!
In the body, use the covering letter included in the link, you'll need to modify it to your individual circumstances, you then you the extinctive prescription template, but ensure that you modify it, also take my advise and use the affidavit(after you served the claim, as proof).Here's that link again:
*http://www.theforumsa.co.za/forums/s...lea?highlight=*
If by 21 November 2012, it's still not resolved, I assist you pro bono with my personal intervention!

----------


## Citizen X

*To learn more about LAWfully challenging credit bureau listing follow this link:-
*http://www.theforumsa.co.za/forums/a...9&d=1339823165

----------


## Citizen X

*To be continued..not near done!*

----------


## Citizen X

For the sake of brevit and ease of reference, I will reintroduce this topic at 1 thread as opposed to 2 threads! The following link is where the complete work will be presented in stages:
http://www.theforumsa.co.za/forums/s...age2?highlight=

----------


## Citizen X

Challenging credit bureau listings in a lawful manner

A detailed explanation with a supporting PDF doc can be found at:
http://www.theforumsa.co.za/forums/s...a-special-plea

----------


## TarynDitt

Hi All

Thank goodness for Google! 
U all seem to be in the know, and I need help. 
We (hubby and I) went under debt review Dec 2008. 1 year later Nedbank auctioned our property (original debt R350K) off for R49K.
We made calls to nedbank requesting they contact us to make payment arrangements for the balance under debt review.  We never heard from them again. On review of our credit profiles we noted that nedbank had written off this debt (R321k) this was dated Oct 2010- almost a year after the property was auctioned. We had defaults against our names which have lasted 2 years (they are due to have come off 31/10/2012).  Today 1/11/2012 we received a legal letter in the post advising us that this company representing Nedbank will be taking legal action against us for 322K. And they will allow us 5 years to pay. 

Do have have any legal standing here- or do I pay?

----------


## TarynDitt

Hi Vanash- 

Please can you also advise on the following. If the debt (bond) has been written off. Can they come back after 3 years and now take legal action against us? We have had a default against our names for the last two years, what is the difference between that and a default judgement (the legal letter we received states the nedbank was already put a default judgement against our names- what's the difference?) Can they put one against our name and the later add a judgement?

----------


## Citizen X

> Hi All
> 
> Thank goodness for Google! 
> U all seem to be in the know, and I need help. 
> We (hubby and I) went under debt review Dec 2008. 1 year later Nedbank auctioned our property (original debt R350K) off for R49K.
> We made calls to nedbank requesting they contact us to make payment arrangements for the balance under debt review. We never heard from them again. On review of our credit profiles we noted that nedbank had written off this debt (R321k) this was dated Oct 2010- almost a year after the property was auctioned. We had defaults against our names which have lasted 2 years (they are due to have come off 31/10/2012). Today 1/11/2012 we received a legal letter in the post advising us that this company representing Nedbank will be taking legal action against us for 322K. And they will allow us 5 years to pay. 
> 
> Do have have any legal standing here- or do I pay?


Hi Tyryn,
1. You raise some interesting questions of law! I will provide you with my opinion based on the information which you have already provided here;
2. ‘Bad debt written off,’ does not necessarily mean that the creditor has abandoned their claim to such a debt. It simply means that in their accounting books they have written off the debt pending legal action and/or legitimate debt collecting methods and techniques;
3. Not all debts become eligible for extinctive prescription after 3 years has elapsed from the date of the last payment. A bond debt prescribes in 30 years(Thirty years). This is what the 1969 Act states on prescription periods:-
*“11 Periods of prescription of debts*
“The periods of prescription of debts shall be the following:
_(a)_ thirty years in respect of-
(i) any debt secured by mortgage bond;
(ii) any judgment debt;
(iii) any debt in respect of any taxation imposed or levied by or under any law;
(iv) any debt owed to the State in respect of any share of the profits, royalties or
any similar consideration payable in respect of the right to mine minerals or
other substances;
_(b)_ fifteen years in respect of any debt owed to the State and arising out of an advance
or loan of money or a sale or lease of land by the State to the debtor, unless a
longer period applies in respect of the debt in question in terms of paragraph _(a)_;
_(c)_ six years in respect of a debt arising from a bill of exchange or other negotiable
instrument or from a notarial contract, unless a longer period applies in respect of
the debt in question in terms of paragraph _(a)_ or _(b)_;
_(d)_ save where an Act of Parliament provides otherwise, three years in respect of any
other debt.”
4. One must takecognisance of the monetary jurisdiction of the courts i.e. Magistrate court R100 000, Regional court R300 000 and High Court – unlimited.
5. Since, based on what you saying, R50 000 was already obtained by whatever means, in my opinion, they will claim the balance from the regional magistrates court;
6. Default judgement is applied for in two instances: 1 When a defendant fails to enter a notice of intention to defend with the prescribed time or, 2: Enter a notice of intention to defend but then fails to file a plea within the prescribed period
7. The only lawful way to remove a default judgement(you cannot appeal, appeal is reserved for a certain period of time after the judgement was granted, which, again, based on what you say, elapsed a very long time ago; is by way of rescission of judgement, in short, you pay the judgement debt in full and you obtain consent from the creditor for rescission of judgement, you will then have to instruct an attorney to have the actual judgment rescinded;
8. If you cannot afford litigation, approach the Law Clinic of your nearest University, they will conduct a means test i.e. based on what you earn. You will have to contact them directly for more details!!

----------


## TarynDitt

I want to thank you for you time and efforts. I have pulled the recorded calls to Nedbank and based on the discussions on those calls- I have request we handle the matter with out the arroneys who sent me the letter, as I was never informed of Nedbanks request to them. I have request an extended period (longer than 5 years) to allow for payment. They can't expect 6K+ a month is I cannt afford that. I am hoping they come to the party on this.

----------


## Amelia1000

Hi Vanash,

I am hoping you can assist:

I lived and worked in Dubai for nearly 2 years from 2007 - 2009, however in 2009 life got more difficult as the economic meltdown continued and I decided to leave the UAE and return to South Africa. I returned to South Africa in November 2009 leaving behind unpaid credit cards with two banks. I have since received numerous calls from multiple agencies asking me to repay my debts but have only responded to one agency via email about a year ago telling him that although i want to pay the money back I cannot afford such large monthly installments due to my current financial position, they were not willing to compromise. 3 years have gone by - Would prescription apply in this case?

Amelia

----------


## Citizen X

> Hi Vanash,
> 
> I am hoping you can assist:
> 
> I lived and worked in Dubai for nearly 2 years from 2007 - 2009, however in 2009 life got more difficult as the economic meltdown continued and I decided to leave the UAE and return to South Africa. I returned to South Africa in November 2009 leaving behind unpaid credit cards with two banks. I have since received numerous calls from multiple agencies asking me to repay my debts but have only responded to one agency via email about a year ago telling him that although i want to pay the money back I cannot afford such large monthly installments due to my current financial position, they were not willing to compromise. 3 years have gone by - Would prescription apply in this case?
> 
> Amelia


Good morning Amelia,
I have sent you a PM with a more detailed response and possible resolution. 
1. 2010, 2011 and 2012 make a full three years, so , yes, based upon the information you have provided extinctive prescription will apply for all those debts except the one that you have acknowledged debt on;
2. Stay Prescription[ 2007, 2008 & 2009] actually work to your detriment as years , time spent abroad is excluded from the 3 year prescription period, *however*, it doesnt appear to affect you anyway, as despite this, 3 full years have elapsed. On this note, in my opinion you not obliged to assist a debt collector to prove their case against you i.e. actually help them by volunteering detrimental information to prove their case against you;
3. If youve already been served a summons for any of this old debt, not to worry, you have a valid defence, you may successfully raise the defence of prescription by way of special plea, this is designed to destroy the plaintiffs entire case!

----------


## Justloadit

Just a point of note here. 
The debt was accrued in another country, and therefor the prescription mentioned here is for debts accrued only in South Africa, and does not include other countries. 
Whilst you may have a defence living in South Africa, be wary when traveling that you do not step into the UAE or other collaborating countries, as you may be arrested for the outstanding debt accrued in those countries if a warrant has been made for your arrest. Generally any crime/offense/ debt performed in a respective country while your are there will fall under that respective country's laws.

----------


## Citizen X

> Just a point of note here. 
> The debt was accrued in another country, and therefor the prescription mentioned here is for debts accrued only in South Africa, and does not include other countries. 
> Whilst you may have a defence living in South Africa, be wary when traveling that you do not step into the UAE or other collaborating countries, as you may be arrested for the outstanding debt accrued in those countries if a warrant has been made for your arrest. Generally any crime/offense/ debt performed in a respective country while your are there will fall under that respective country's laws.


A very good afternoon to you Justloadit,

Amelia is actually talking about debts she left behind in SA i.e. she decided that for whatever reason she wanted to go to Dubia, live and work there. She was away ffrom 2007 to 2009. Upon her return to SA, she discovered that there were and are still outstanding debts for which the creditors(SA creditors) are now demanding payment.
In terms of the Prescrioption Act 68 of 1969 the time that she was abroad is of relevance in so far as this time period is excluded from the 3 year time period calculation. Fortunately for her though, 3 full years has nontheless elapsed despite 2007, 2008 and 2009 i.e. what elapsed is 2010, 2011 and 2012 :Big Grin:

----------


## Citizen X

For the sake of brevit and ease of reference, I will reintroduce this topic at 1 thread as opposed to 2 threads! The following link is where the complete work will be presented in stages:
http://www.theforumsa.co.za/forums/s...age2?highlight= 

Challenging credit bureau listings in a lawful manner

A detailed explanation with a supporting PDF doc can be found at:
http://www.theforumsa.co.za/forums/s...a-special-plea

----------


## Citizen X

Research on extinctive prescription will be an on-going task. Please continue to send your completed questionnaires to
vanash.naick@gmail.com

----------


## IMHO

Vanash

Sorry for not reading the whole thread. I will if you instruct me to do so, but I just want to give you a quick background on my problem, maybe it has nothing to do with this thread.

I have a small shop in Klerksdorp at home from where I sell ink cartridges and do refills. It is registered as a cc. Some 6 years ago, I closed my only other branch in Potchefstroom, as the premises was sold and turned into flats. Business was bad and I decided not to move to new premises and closed the branch totally, only carrying on in Klerksdorp. I had an account with Telkom, which I gave notice on and closed. That account was under my cc name, but for that branch, separate account. Some time later, I do not recall how long after the event, I got a call from Telkom saying I did not pay my last account. I argued I did and I never heard of it again. Today, more than 5 years later, I get a call from MMM Capital, informing me that I have 7 days to pay the account plus costs and interest. I told the lady I closed that shop years ago and that I can not off hand remember what the story was, but that I am certain I did close and pay the account. I gave her my e-mail address and requested her to send me details so I can look at the case. She agreed and that was the end of the (recorded) conversation. Next thing I get a summons by e-mail demanding the payment and no details of what it is about, only a Telkom ref number.

I am in the habit of destroying all documents older than 5 years, so it is very difficult if not impossible for me now to prove I do not owe Telkom anything. I am also not sure of any dates relating to this, except that I closed the shop somewhere in 2007. Under what does this fall and how do I react to this summons out of the blue?

----------


## Darkangelyaya

Vanash, this is just a note to thank you publically for all the work that you have done, and are still doing, especially with reference to this thread.
You are a man who walks his talk, and I have great respect for that.
I salute you!

----------


## Citizen X

:Big Grin: A very good evening to you IMHO




> Sorry for not reading the whole thread. I will if you instruct me to do so, but I just want to give you a quick background on my problem, maybe it has nothing to do with this thread.



I both humble and approachable and would never patronize you by telling you to read the entire thread especially since your questions are very specific and are in the public interest!(I’ve got an attitude problem, but it’s just a little attitude problem! :Embarrassment: ) 

A Telkom debt falls under the 3 year prescription period i.e. section 11(d) of the Prescription Act 68 of 1969. This means that the law has given Telkom 3 full years from the date that the debt became due and payable to sue out summons failing which the debt prescribes. This is not a judgment debt i.e. judgment has not yet been granted against you, you have not acknowledged debt and more than 3 years has elapsed since the date of your last payment. So based upon the information that you provide this debt is prescribed! Go to this link:

http://www.theforumsa.co.za/forums/s...plea?highlight=

, use the covering letter and prescription claim letter. The covering letter goes into your email body, the subject, your id number, the reference number and ‘extinctive prescription claim’
Modify the prescription claim letter with your personal details, ensure that you go through the entire letter, use this as an email attachment. Then email it to the individual who emailed you and copy Pinky the ceo of Telkom, this is her email address(Got it from public sources!)moholint@telkom.co.za



> Next thing I get a summons by e-mail demanding the payment and no details of what it is about, only a Telkom ref number



Okay, at present in terms of the amended magistrates court rules summons may be sent via email where both parties consent in writing to the same. I doubt very much though that you have received a summons, I suspect that you have received a final demand letter(Can you clarify)


An extinctive prescription claim is essentially a means of informing the creditor that there’s really nothing further that they can do successfully legally and that should they proceed to court, your plea on merits and special plea will destroy their entire course of action. Rationale: Why still go to court if the debtor has now informed you in no uncertain terms that you have no course of action, that even if they go to court it will be a waste of their time as your special plea will destroy their entire action.

The documents you will require are included at this link, from what I deduce you just need two of the documents that are there as attachments. Download them, modify and serve via email for now and then registered mail, don’t wait to do it via registered mail, go the email route tomorrow and keep us briefed..

----------

Dave A (21-Feb-13)

----------


## Citizen X

> Vanash, this is just a note to thank you publically for all the work that you have done, and are still doing, especially with reference to this thread.
> You are a man who walks his talk, and I have great respect for that.
> I salute you!


A very good evening to you Carina,
Your kind compliment is graciously accepted! A compliment is always welcomed but when it comes from a sexy and classy lady such as yourself, well then it’s exceptionally welcomed!!
*Carina*, tell me how right I am: I’m willing to bet money that back in the day and even now you know how to do your thing to an up tempo dance tune on the dance floor? I was listening to what was a coming of age song for me in 1990, Kylie Minogue’s ‘Better the devil you know,’ a music video in which both Kylie and Dannii Minogue feature doing some exquisite dance moves. *I’m pretty sure you have that same aura???* So I dedicate this song and in particular the energy in, it to you, as you manifest that energy!!…(dedication innocently intended :Embarrassment: )Check out this link..

http://www.theforumsa.co.za/forums/showthread.php/11138-Old-school-music-is-cool!/page47

@#464

----------


## ians

I wish someone would advise , this bunch of (i actually dont have a word to describe them) that surely if you have an outstanding TV license of R4800 which is older than 12 years they actually dont have a claim, never mind the fact that i also have a certified document from the police indicating that i have not owned a TV for more than 15 years.

I contacted them and asked to speak to a lawyer and indicated that i wanted to sue a company for outstanding debts, they put me thorugh to a lawyer, i explained my situation as if a company owed me the money. When i told the lawyer that the money was outstanding since 1998, she told me i had no claim, when i asked then why their firm was harrassing me for a so called debt which was so old she started screaming and swearing at me on the telephone, i just put the phone down and will try again when she calms down. I dont appreciate being sworn at in that manner. Maybe next time i will try a different attorney and ask him the same question, see what his reaction will be.

A tip for anyone else being harrassed by these people dont go to the call centre request to speak to one of their attorneys and dont tell them you have a reference number. If they want to waste your time dont hesitate to waste their time.

I dont understand why legal action has not been taken against this firm, it is a disgrace the manner in which they operate. 

http://hellopeter.com/shapiro-shaik-...and-complaints

----------


## IMHO

[QUOTE=Vanash Naick;84624] I doubt very much though that you have received a summons, I suspect that you have received a final demand letter(Can you clarify)

You are right. Pdf at this link
https://docs.google.com/file/d/0B7wy...9VYVJlMHM/edit

How does this change your instructions, if at all?

----------


## IMHO

I just noticed that the address they have for the CC on the letter is totally unknown to me. Must be the address of the original owner of the shelf CC I bought. Telkom definitely had the address where I still am.

What is the chances that this is a scam from someone having access to old Telkom data?

----------


## Darkangelyaya

I graciously accept the dedication, however, I will refrain from commenting on my aura or the lack of it... although I do love dancing. The energy is also absolutely welcome.
 :Cool:

----------


## Darkangelyaya

Sigh, you've done so much to make this a piece of cake for us, but I still feel swamped.
Maybe there is an employment opportunity for someone in this forum to use your methods, and help all of us out with prescribed debt. I know I have a pile to finish off, and I just don't have the energy these days to get to it. And I realize that I will feel better once these fish-moths are out of the way; I believe they drain our energy with their pure negativity.
Come on, someone out there wanna do some work? Vanash has laid down all the ground rules... I'm sure there is an opportunity here.

----------


## IMHO

The more I think about it, the more I think it is a scam.

The lady that phoned me went to great lengths to make me think this is serious and that the call is recorded. 
Luckily she did not ask for identification to make sure it is me, by asking my id number, as I would have given it! As well as address and the usual 20 questions. Lesson learned, if they phone me, I will not give such info!
The lady undertook to send me details of the issue, which she blatantly disregarded in the mail. The mail just had her contact details and the pdf attachment, nothing else, not even anything about the phone call.
She could not give me any detail on the phone, not even a date and kept on saying she will take it up with the client.

The letter sounds like they just want you to admit something, to then make a case of it.

The emphasis is on signing a debit order to pay the amount off and to get a mandate out of me. That in itself seems odd?

I smell a rat....

Edit. And why will Telkom pursue such an old query that was sorted out years ago? They must be aware that it has expired?

----------


## Citizen X

[QUOTE=IMHO;84632]


> I doubt very much though that you have received a summons, I suspect that you have received a final demand letter(Can you clarify)
> 
> You are right. Pdf at this link
> https://docs.google.com/file/d/0B7wy...9VYVJlMHM/edit
> 
> How does this change your instructions, if at all?


It doesn't, this is now in your favour, summons has not yet been sued out, you now need to beat them to this. Use the covering letter and extinctive prescription claim letter and proceed tomorrow ..Please keep us briefed..

----------


## Citizen X

> I just noticed that the address they have for the CC on the letter is totally unknown to me. Must be the address of the original owner of the shelf CC I bought. Telkom definitely had the address where I still am.
> 
> What is the chances that this is a scam from someone having access to old Telkom data?


Difficult to speculate, best practice, treat the threat as if it's real, you've got nothing to really lose by acting now rather than later..

----------


## IMHO

Damn. It is like Darkangelyaya says. It is not like I have the time for sh!t like this, nor the energy. Should I not contact Telkom tomorrow and find out if it is for real?

----------


## IMHO

I found the prescription claim letter but not the cover letter?

The claim letter calls for dates, details and account number, which I do not have. I just know it could be in 2007 and I have the ref number on the e-mail. I do not even recall the telephone number of the shop.

----------


## IMHO

Found the cover letter.




> The covering letter(email)(You attach the modified extinctive prescription claim precedent/template)
> 
> Subject box: XYZ bank: Account number 123456: Id number: 0000000000
> 
> Without prejudice and all rights reserved.
> 
> 1. I refer to the above matter and further to my attached extinctive prescription claim;
> 2. I hereby serve my extinctive PRESCRIPTION CLAIM on you with regards to a XYZ Bank account ,
> 3. In keeping with legislative requirements, industry generally accepted norms and good corporate governance, kindly process my extinctive prescription claim and confirm to writing on your signed letterhead that this debt is indeed prescribed and that your computer systems and credit bureaus have/will be updated accordingly with regards to this prescription claim.
> ...


This poses another problem. I have no idea what the details and date of the last payment was...

Also, who do I address this to? Telkom or the SCAMMER?

----------


## Citizen X

> Found the cover letter.
> 
> 
> 
> This poses another problem. I have no idea what the details and date of the last payment was...
> 
> Also, who do I address this to? Telkom or the SCAMMER?



Creditor Telkom and/or MMM, best practice, we not sure if they bought the debt from Telkom, remember to cc the ceo of Telkom and keep us posted..

----------

IMHO (22-Feb-13)

----------


## IMHO

Ok, done. If you would like a copy, pm me your e-mail address.

----------


## Citizen X

> Ok, done. If you would like a copy, pm me your e-mail address.


will do!

----------


## WG82

Hi...

I have a question related to (what I assume to be) an old student debt.

Recently I contacted my old university (UKZN) for an unrelated question - I've been trying to get info about my marks there for possible accreditation for further study. The first times I tried to contact them, they passed the buck and never got back to me.

However, after contacting them again, I've received a reply saying I should contact an 031 (Durban) number, because of a 'debtors hold' of some sort.

The thing is, I left the university 10 years ago. Also, I never completed my studies - after one semester I left because I couldn't afford to stay, nor could I get a loan. I paid the fees for this semester in full though, using my savings from work for the previous few years, and a small bursary.

It seems a bit strange that now ten years later I should have to contact them about some nebulous 'debt'. I've asked for an email address as I don't really want to spend too much money on unproductive phone calls (I'm living abroad now), but have received no reply again.

Should I contact this 031 number, or do I risk opening a can of worms? I've heard absolutely nothing about this for the last 10 years, this is the first...and the only thing I can imagine is a library fine or something, although surely they wouldn't keep this on record or try to reclaim it after so long...

Any advice welcome! Thanks.

----------


## Citizen X

> Hi...
> 
> I have a question related to (what I assume to be) an old student debt.
> 
> Recently I contacted my old university (UKZN) for an unrelated question - I've been trying to get info about my marks there for possible accreditation for further study. The first times I tried to contact them, they passed the buck and never got back to me.
> 
> However, after contacting them again, I've received a reply saying I should contact an 031 (Durban) number, because of a 'debtors hold' of some sort.
> 
> The thing is, I left the university 10 years ago. Also, I never completed my studies - after one semester I left because I couldn't afford to stay, nor could I get a loan. I paid the fees for this semester in full though, using my savings from work for the previous few years, and a small bursary.
> ...


Extinctive prescription, in particular s 11(d) which states that a debt prescribes after 3 years from the date on which the debt became due and payable will apply provided that this is not a judgement debt, no payments were made for a full 3 years and no acknowledgement of debt has been signed.
The flip side of the coin is that as an educational institution they can prevent you from studying with them unless you pay the debt, they also won't release results etc...I suppose this is one of those debts that you should carefully consider...

----------


## IMHO

Thanks to Vanash. Your material really did it for me. What seemed like a mountain to overcome, in the end was really very easy. Luckily I found an old email with all the relevant info, dates and last payment details. I can recommend this procedure to anyone who qualify for the rules of prescription. Much easier than digging up all the old evidence and arguing with them and they just in any case go ahead and summons you in the end. Without Vanash, I would surely have ended up having to pay this unfair claim.

For those that do not know, I addressed the email with cover letter to both Telkom and MMM Capital. Everywhere it talks about the company, I have put it as Telkom SA Limited / MMM Capital. I found out via their accounts department the email address of the person at Telkom handling this case and addressed it to her as well as the MMM email address and the CEO address Vanash gave me.

I got a response the same day from Telkom.




> Good day,
> 
> 
> 
> Ive sent the details through to my manager, awaiting approval.
> 
> Will provide you with feedback


Today I got this mail.




> Good day,
> 
> 
> 
> Weve arranged credits, above mentioned account is cleared. And file is closed with MMM Capital.


So yes, it seems as a big insurmountable problem, but it ain't really. I think it took me 30 mins to put it all together and mail it off.

Vanash, should I insist on all this in writing on a letter head as asked for in the email? I hope the two emails will suffice.

----------

Dave A (23-Feb-13)

----------


## Citizen X

> Thanks to Vanash. Your material really did it for me. What seemed like a mountain to overcome, in the end was really very easy. Luckily I found an old email with all the relevant info, dates and last payment details. I can recommend this procedure to anyone who qualify for the rules of prescription. Much easier than digging up all the old evidence and arguing with them and they just in any case go ahead and summons you in the end. Without Vanash, I would surely have ended up having to pay this unfair claim.
> 
> For those that do not know, I addressed the email with cover letter to both Telkom and MMM Capital. Everywhere it talks about the company, I have put it as Telkom SA Limited / MMM Capital. I found out via their accounts department the email address of the person at Telkom handling this case and addressed it to her as well as the MMM email address and the CEO address Vanash gave me.
> 
> I got a response the same day from Telkom.
> 
> 
> 
> Today I got this mail.
> ...


A very good evening to you IMHO,

I very glad that you have resolved this matter! What you already have is a sound audit trail confirming that their file is closed. That said, one can never be certain if they have updated their computers, the last thing yyou want is for this very same matter to crop up a couple months down the line. Might I suggest that you request a signed letterhead from them confirming that eiether this debt is prescribed, or that they abandon their claim or that their file is completely closed. Here you simply be honest, you want a signed letterhead for your records. If theyeither refuse or simply ignore the request, then use the affidavit template in the same link provided, go modify it, go to your police station and have it commissioned and retain for your records...

----------


## IMHO

Thanks Vanash, will do.

----------


## WG82

> Extinctive prescription, in particular s 11(d) which states that a debt prescribes after 3 years from the date on which the debt became due and payable will apply provided that this is not a judgement debt, no payments were made for a full 3 years and no acknowledgement of debt has been signed.
> The flip side of the coin is that as an educational institution they can prevent you from studying with them unless you pay the debt, they also won't release results etc...I suppose this is one of those debts that you should carefully consider...


Thanks Vanash, very useful advice. 
I've also been advised by another poster to ask for a "full statement of all invoices raised and payments received". If I did so, would I be at risk of 'acknowledging' the debt and re-opening the case?
According to your advice and what I gather from other debt-related information, I should be able to ignore any debt issue given the time that has passed, and to be able to contest any claims based on your above reasoning.

However, at the moment I know nothing at all about this debt, what it is for or the exact dates involved. My only guess is student fees or related university costs, which of course I contest having left and given ample notice, having de-registered etc.

I'm not sure what a judgement debt is, nor whether this qualifies...as mentioned, I only have the request from the unversity to contact them (received via email). I'd like to make sure things are fine, and am also curious - although of course I don't want to be foolish and make contact only to cause problems for myself. 

All things said, is it worth contacting them to clear the matter?

----------


## Citizen X

> Thanks Vanash, very useful advice. 
> I've also been advised by another poster to ask for a "full statement of all invoices raised and payments received". If I did so, would I be at risk of 'acknowledging' the debt and re-opening the case?
> According to your advice and what I gather from other debt-related information, I should be able to ignore any debt issue given the time that has passed, and to be able to contest any claims based on your above reasoning.
> 
> However, at the moment I know nothing at all about this debt, what it is for or the exact dates involved. My only guess is student fees or related university costs, which of course I contest having left and given ample notice, having de-registered etc.
> 
> I'm not sure what a judgement debt is, nor whether this qualifies...as mentioned, I only have the request from the unversity to contact them (received via email). I'd like to make sure things are fine, and am also curious - although of course I don't want to be foolish and make contact only to cause problems for myself. 
> 
> All things said, is it worth contacting them to clear the matter?


Good afternoon WG82,
1. Yes, the idea of getting statements is sound, for one, it will prove when the last payment was made on the account;
2. Judgment debt: In SA you said to have a judgment debt when a court has granted judgment in favour of the creditor. The open season for judgments appear to be default judgment. From what I can deduce subjectively, *certain* attorneys(most are ethical) are aware that addresses change, so they sue out summons to the address that you had when you took out the credit card or whatever is applicable. You don’t receive the summons simply because you not there to receive the summons, they apply for default judgment. Judgment is collectable for 30 years, it prescribes in 30 years, a real ugly state of affairs if you the judgment debtor. It will be difficult to speculate as to whether or not you do have a judgment granted against you, so I won’t even go to the realm of speculation!
3. Statements: When you contact them you start by saying I deny liability if this alleged debt, kindly provide the statement of such alleged debt.
4. Remember your point of departure is that you want to claim extinctive prescription and have this debt basically cancelled..

----------


## mariusina

Hi,I can get a job becurse of my credit record in 2010 what can I do to take it off

----------


## Citizen X

Good afternoon Mariusina,

It depends on what type of listing you have. A judgement debt stands for 5 years on credit bureaus before it is expunged, your payment profile for 5 years. Have a look at this link:
Challenging credit bureau listings in a lawful manner

A detailed explanation with a supporting PDF doc can be found at:
http://www.theforumsa.co.za/forums/s...a-special-plea

----------


## Darkangelyaya

Hi Vanash,
I received a completely faulty MTN cellphone account in Oct 2008 when I returned from Tanzania on business. The amount was in the order of R30 000 (!!!) that they claimed I used on roaming. Needless to say, there was no way on this (slightly green) earth that I would pay that. This was a huge problem for me, as obviously the phone number got disconnected, and at that stage it was my only business number that I had had for many years. The amount of business and income I lost as a result of clients not being able to get a hold of me, is incalculable.
Anyway, my question is this:
MTN has never tried to recoup this alleged debt from me in any way - I have changed my number, and still have a contract with them, so it's not as if they couldn't reach me. They have not gotten a judgment against me either.
Should I forget about the whole thing (which really bugs me, as I'm more than a bit OCD), or should I go ahead and claim prescription anyway, for the sake of restful nights?
Thank you in advance, Kind Sir.

----------


## Citizen X

A very good evening to you Carina :Big Grin: ,

1. Your questions are in the public interest! Extinctive prescription is actually there to punish a creditor for not suing out summons within 3 years from the date that the debt became due and payable. To be safe it became due and payable by November 2008. I say this as you made no payments ever since. They could have done a trace alert on you at any time, your contact details are available on the credit bureaus which the either failed or neglected to do. Difficult to say which! They contacting you now, so they have your contact details;
2. The following link has all the useable attachments that you will require for this task
http://www.theforumsa.co.za/forums/s...age2?highlight=

3. In practice you download 3 documents from the afore mentioned link 1: Covering letter 2: Prescription claim letter and 3; Affidavit( to prove that you have claimed prescription)
4. The covering letter will find reference in the body of your email, subject : Their reference number, your id number and Extinctive prescription Claim(Modify the covering letter to your individual situation)
5. The prescription claim letter will be your attachment(Modify the prescription claim letter to your individual situation especially creditor name, your details, go through the entire letter! For creditor state the debt collectors name and/or the creditor). The rationale is one can't be cretain if the debt has been sold so you state the creditor as XYX attorneys and/or MTN)
6. Serve it initially via email, after service give it 2 working days before you follow up
7. Please keep us posted

----------

Darkangelyaya (28-Feb-13)

----------


## Darkangelyaya

Hi Vanash, thanks for the answer. 
I think you misunderstood me, it's my peace of mind bothering me - as of this moment, no-one has contacted me for payment; therefore I just wanted to know whether it would be the best route for me to 'kick the hornet's nest'.

----------


## Citizen X

> Hi Vanash, thanks for the answer. 
> I think you misunderstood me, it's my peace of mind bothering me - as of this moment, no-one has contacted me for payment; therefore I just wanted to know whether it would be the best route for me to 'kick the hornet's nest'.


This is the ulimate problem statement! One doesn't know what an offensive such as an extinctive prescription claim may cause the creditor to do. What I mean by this is: One is now uncertain if this is a judgment debt! *If not, you've got nothing to lose.* You essentially asking for the legal certainty and closure that extinctive prescription is designed to provide. The decision is far easier to make when demands for payment are being received and you have a valid response to such demands such as debt is prescribed. All things being equal, If I were in your position, I'll still pursue this!
Sometimes an offensive is the best defensive..(It's your call though)

----------

Darkangelyaya (28-Feb-13)

----------


## Darkangelyaya

> This is the ulimate problem statement! One doesn't know what an offensive such as an extinctive prescription claim may cause the creditor to do. What I mean by this is: One is now uncertain if this is a judgment debt! *If not, you've got nothing to lose.* You essentially asking for the legal certainty and closure that extinctive prescription is designed to provide. The decision is far easier to make when demands for payment are being received and you have a valid response to such demands such as debt is prescribed. All things being equal, If I were in your position, I'll still pursue this!
> Sometimes an offensive is the best defensive..(It's your call though)


Surely if it was a judgment debt, it would be listed on the credit bureaus?

----------


## Citizen X

> Surely if it was a judgment debt, it would be listed on the credit bureaus?


In my experience not in all cases! Sometimes a creditor failes for whatever reason to list it. When they do, they don't always list it on all credit bureaus! Some may list it on Transunion ITC, others XDS, other Experian an some all 3. Bear in mind that the listing stands for 5 years after which it is automatically expunged. It's increasingly difficult to tell. This is why you need to weigh things carefully and make the final call!

----------

Darkangelyaya (28-Feb-13)

----------


## patrick1

[B]Please find the definition of prescription below:  Interruption of prescription by acknowledgement of liability.(1) The running of prescription shall be interrupted by an express or tacit acknowledgement of liability by the debtor.(2) If the running of prescription is interrupted as contemplated in subsection (1),prescription shall commence to run a fresh from the day on which the interruption takes place or,if at the time of the interruption or at any time thereafter the parties postpone the due date of the debt from the date upon which the debt again becomes due. Arrangements were made on the account on the following dates: 30122006      730.00 PROMISE TO PAY  0101200706012007      730.00 PROMISE TO PAY  0801200728022007      360.00 PROMISE TO PAY  0203200712062007      400.00 PROMISE TO PAY  14062007 Kindly note that payments have been recorded on the following dates which interrupts the prescription claim. 13092012 03:30 T769 11092012      300.00 PAYMENT 04102012 02:57 T769 02102012      300.00 PAYMENT22022013 01:56 T769 20022013      400.00 PAYMENT what does this mean 
10. Extinction of debts by prescription.(1) Subject to the provisions of this Chapter and of Chapter IV, a debt shall be extinguished by prescription after the lapse of the period which in terms of the relevant law applies in respect of the prescription of such debt.
(2) By the prescription of a principal debt a subsidiary debt which arose from such principal debt shall also be extinguished by prescription.
(3) Notwithstanding the provisions of subsections (1) and (2), payment by the debtor of a debt after it has been extinguished by prescription in terms of either of the said subsections, shall be regarded as payment of a debt.

This basically means that you cannot claim a debt once it becomes prescribed. 
if i paid anything after three years is it in full and does prescription start over this law is 2 sided

----------


## Dave A

My Note: _I've tried to restructure the above post into something more readable. I can't guarantee the accuracy of my interpretation, but it makes more sense than what Patrick put up._

Please find the definition of prescription below: 

Interruption of prescription by acknowledgement of liability.
(1) The running of prescription shall be interrupted by an express or tacit acknowledgement of liability by the debtor.
(2) If the running of prescription is interrupted as contemplated in subsection (1),prescription shall commence to run a fresh from the day on which the interruption takes place or,if at the time of the interruption or at any time thereafter the parties postpone the due date of the debt from the date upon which the debt again becomes due. 

Arrangements were made on the account on the following dates: 
30122006 730.00 PROMISE TO PAY 01012007
06012007 730.00 PROMISE TO PAY 08012007
28022007 360.00 PROMISE TO PAY 02032007
12062007 400.00 PROMISE TO PAY 14062007 

Kindly note that payments have been recorded on the following dates which interrupts the prescription claim. 
13092012 03:30 T769 11092012 300.00 PAYMENT 
04102012 02:57 T769 02102012 300.00 PAYMENT
22022013 01:56 T769 20022013 400.00 PAYMENT 

what does this mean

10. Extinction of debts by prescription.—(1) Subject to the provisions of this Chapter and of Chapter IV, a debt shall be extinguished by prescription after the lapse of the period which in terms of the relevant law applies in respect of the prescription of such debt.
(2) By the prescription of a principal debt a subsidiary debt which arose from such principal debt shall also be extinguished by prescription.
(3) Notwithstanding the provisions of subsections (1) and (2), payment by the debtor of a debt after it has been extinguished by prescription in terms of either of the said subsections, shall be regarded as payment of a debt.

This basically means that you cannot claim a debt once it becomes prescribed.

if i paid anything after three years is it in full and does prescription start over 

this law is 2 sided

----------


## Citizen X

> My Note: _I've tried to restructure the above post into something more readable. I can't guarantee the accuracy of my interpretation, but it makes more sense than what Patrick put up._
> 
> Please find the definition of prescription below: 
> 
> Interruption of prescription by acknowledgement of liability.
> (1) The running of prescription shall be interrupted by an express or tacit acknowledgement of liability by the debtor.
> (2) If the running of prescription is interrupted as contemplated in subsection (1),prescription shall commence to run a fresh from the day on which the interruption takes place or,if at the time of the interruption or at any time thereafter the parties postpone the due date of the debt from the date upon which the debt again becomes due. 
> 
> Arrangements were made on the account on the following dates: 
> ...


Good morning Boss :Wink: ,

Yes, it does make more sense this way, in that I can now see clearly where Patrick’s problem lies.

Good morning Patrick :Wink: ,

I would firstly like to impress upon you that I understand your frustration! You feel as though you were robbed i.e. had it not been for certain payments, your debt would have been eligible for extinctive prescription! :Frown: 

Allow me to explain as follows

Section 10 sets the basis for extinctive prescription



> a debt shall be extinguished by prescription after the lapse of the period which in terms of the relevant law applies in respect of the prescription of such debt.





There are different prescription periods. The vast majority of our debts prescribe in 3 years. This means that the law allows the creditor to sue out summons (judicial process) within 3 years from the date that the debt becomes due and payable. The debt becomes due and payable on the date which you fail to pay your debt. Prescription is actually there to punish a creditor for not suing out summons within the prescribed period. So should they sue out summons after this 3 year period, you may enter an appearance, file a plea on merits and a special plea of prescription which will completely destroy their action as their claim is prescribed in law. Why then claim extinctive prescription directly from the creditor? Simply because the creditor is not going to court to demand payment but is demanding payment directly from you, so you responding to the creditor by saying that the debt is now prescribed.




> The periods of prescription of debts shall be the followingsave where an Act of Parliament provides otherwise, three years in respect of any other debt





Unless certain events interrupt prescription and cause prescription to run afresh namely actual payments and acknowledgement of debt




> The running of prescription shall be interrupted by an express or tacit acknowledgement of liability by the debtor.







> Notwithstanding the provisions of subsections (1) and (2), payment by the debtor of a debt after it has been extinguished by prescription in terms of either of the said subsections, shall be regarded as payment of a debt.





In your individual case one need no longer to look at the acknowledgement of debt but rather your last payment which was on 22 February 2013. The creditor now has 3 years from this date 22 February 2013 to demand payment on the debt and/or sue out summons




> 22022013 01:56 T769 20022013 400.00 PAYMENT

----------


## kent

Hi Vanesh

I took out loan in 2008/11/15 and due 2010/04/30, which from 09/05/2009 debits went unpaid as I was no longer working.I had no further correspondance with them and in 23/05/2012 send them a prescription letter claiming debt as preascribed, and asked that they send me statements to support my claim
The debt however still appeared and I lodged a claim with Transunion, who after 20 days came back saying creditor has not responded and removed the listing.

However, when I applied for credit recently, was told that one of my accounts is 9 months in arrears, checked XDS and experian, whi acknowledged that the listing is stll on my profile
XDS investigated, but came back after 2 days saying the creditor rejects the debt has prescribed and said I was liaing with them within the 3 years.
They concluded the case without asking for any proof of such communication and I was told the creditor's feedback was final

I then send email asking for the proof and was told the following
2010/04/06 - a call was attempted no response, on the same day it was established that the client has left the company,
2010/04/22 -  received a debt review application,
2012/05/ 23 - A call was received from yourself enquiring about the account,
2012/05/23  another call was received from yourself requesting a settlement quotation, the document was sent to your current settlement amount

So, within the 5 years the debt is listed, they made 1 attempt to contact me
The debt review application was not done by me, but by my wife who gave my id number without me knowing and also was cancelled and no documents or contact was made after she provided id number, as she was told that about dishonest practices where debt review is concerned
The call I made was after sending the prescription letter and to inform them that debt prescribed and need statements to support this

I have lodged a dispute with ombudsman,as the interst charged is double the amount allegedly loaned.

Has the debt prescribed?

----------


## Citizen X

> Hi Vanesh
> 
> I took out loan in 2008/11/15 and due 2010/04/30, which from 09/05/2009 debits went unpaid as I was no longer working.I had no further correspondance with them and in 23/05/2012 send them a prescription letter claiming debt as preascribed, and asked that they send me statements to support my claim
> The debt however still appeared and I lodged a claim with Transunion, who after 20 days came back saying creditor has not responded and removed the listing.
> 
> However, when I applied for credit recently, was told that one of my accounts is 9 months in arrears, checked XDS and experian, whi acknowledged that the listing is stll on my profile
> XDS investigated, but came back after 2 days saying the creditor rejects the debt has prescribed and said I was liaing with them within the 3 years.
> They concluded the case without asking for any proof of such communication and I was told the creditor's feedback was final
> 
> ...


Good morning Kent,

I'm terribly sorry that you going through such an ordeal for a prescribed debt! Based upon information that you provide the debt prescribed on 9 May 2012 and you have claimed prescription. The confusion that they experiencing is with what interupts prescription. Only judicial process interupts prescription not a mere letter of demand or a call. You indicate that you have not acknowledged debt and that though there was debt review, no payments were made and further that this was cancelled. Since debt review does prevent a creditor from demanding payment, this initself, is not sound reason for them to reject your claim. IN terms of the NCA they were obliged to give notice to terminate debt review, which, i take they did not
1. I just found out that one needn't place legislation in quotation marks since it is not copywrite! So

*15 Judicial interruption of prescription*
(1) The running of prescription shall, subject to the provisions of subsection (2), be
5
interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt.
(2) Unless the debtor acknowledges liability, the interruption of prescription in terms of
subsection (1) shall lapse, and the running of prescription shall not be deemed to have been
interrupted, if the creditor does not successfully prosecute his claim under the process in question to final judgment or if he does so prosecute his claim but abandons the judgment or the judgment is set aside.
(3) If the running of the prescription is interrupted as contemplated in subsection (1) and
the debtor acknowledges liability, and the creditor does not prosecute his claim to final
judgment, prescription shall commence to run a-fresh from the day on which the debtor
acknowledges liability or, if at the time when the debtor acknowledges liability or at any time thereafter the parties postpone the due date of the debt, from the day upon which the debt again becomes due.
(4) If the running of prescription is interrupted as contemplated in subsection (1) and the
creditor successfully prosecutes his claim under the process in question to final judgment and the interruption does not lapse in terms of subsection (2), prescription shall commence to run afresh on the day on which the judgment of the court becomes executable.
(5) If any person is joined as a defendant on his own application, the process whereby the
creditor claims payment of the debt shall be deemed to have been served on such person on the date of such joinder.
(6) For the purposes of this section, 'process' includes a petition, a notice of motion, a rule
_nisi_, a pleading in reconvention, a third party notice referred to in any rule of court, and any document whereby legal proceedings are commenced

So you need to make it clear to them that a call, or letter from them is not judicial process! Failing which challenge them to sue out summons and instruct your attorney to file a plea on merits, a special plea of preciption.

Here I need the astute logical skils of my fellow TFSA members to assist in reasoning this out..

----------


## Dave A

My concern is that debt review application. It might well be deemed an acknowledgement of debt as it must have been included in a list of creditors given to the debt counsellor. Probably worth pointing out that even if so interpreted, prescription becomes available on 22 April 2013 - not that far away.

The other aspect with this situation is in terms of _in duplum_, the sum of interest and collection costs raised may not exceed the quantum of the capital amount due at the time of default. More on in duplum here if it proves to be a relevant issue for you.

----------


## kent

Hi Dave

Thanks for the feedback.

I spoke to my wife again and she said that all contact she had with the debt review company was when she provided id numbers. No furher contact was made (i.e no documents was signed, no payment, no calls etc )

Can this still be viewed as a valid debt administrative application?

Also, Was the debt collector legaly able to view and access my credit history, without my impilicit consent? 

And why does one credit bureau remove the listing and the others not?


Regards

----------


## Dave A

Kent, I gently suggest some bridges should only be crossed when you arrive at them. Based on current form, not much is going to happen between now and 22nd April when the issue of whether or not the debt review application could be deemed an AOD becomes moot.

The only reason I raised it at all is to indicate you might be in a more assured position to press for closure after 22nd April. Why test the line when you don't have to.

----------


## Citizen X

> Hi Dave
> 
> Thanks for the feedback.
> 
> I spoke to my wife again and she said that all contact she had with the debt review company was when she provided id numbers. No furher contact was made (i.e no documents was signed, no payment, no calls etc )
> 
> Can this still be viewed as a valid debt administrative application?
> 
> Also, Was the debt collector legaly able to view and access my credit history, without my impilicit consent? 
> ...


The debt review argument from the creditor's perspective normally goes like this, we couldn't act on collecting the debt becuase you were under debt review, however, the onus is on the creditor is give notice to terminate debt review when payment is not received. Indeed, there are a few areas that need some arguing around and there is some risk but you do have a good case based on extinctive prescription...

----------


## Gummy1

hi, I would like to know about school fees if that also falls under the 3 year? According to one debt collector it does not and you stay liable for the rest of your life.

----------


## Citizen X

> hi, I would like to know about school fees if that also falls under the 3 year? According to one debt collector it does not and you stay liable for the rest of your life.


A very good afternoon to you Gummy1,

School fees are not ‘taxation, neither are they a debt owed to the State *in respect* of any share of the profits, royalties or any similar consideration payable in respect of the right to mine minerals or other substances; nor are they debt owed to the State *and arising out* of an advance or loan of money or a sale or lease of land by the State to the debtor.


As far as I’m concern the three year prescription period is applicable..

Might I suggest that you follow this link for more detailed information:

http://www.theforumsa.co.za/forums/s...plea?highlight=

----------


## Citizen X

*Frequently asked question(In a scenario):
*
I have just received a summons, this after having received a final letter of demand. The summons calls upon me to either appearance an appearance or consent to judgment . This matter related to a prescribed debt, a debt which is order than three(3) years, calculated as such from the date of the last payment. For whatever reason you ignored the demand letter, but summons has just been served, you have a deadline within which to file certain documents(pleadings). 

You can do one of three things:

1. Defend your-self on the matter by entering a notice of intention to defend, drafting a plea on merits as well as a special plea of prescription in the prescribed manner. This entails serving these documents to both the plaintiff and the clerk of courts. With this pleading(plea on merits and special plea of prescription), your pleading has the intense power of destroying the entire action!(If you just ignore this, you give the creditor an opportunity to obtain default judgment upon yourself
2. Instruct an attorney either privately recruited, at a University Law Clinic or at the Legal Aid Board to enter an appearance, plea, and special plea on your behalf;
3. *If you don’t want to go this route but are really serious about your matter*, then, you can simply instruct an attorney to specifically draw up your pleadings(both plea on merits and special plea of prescription), you then only have to serve it on the plaintiff and clerk of courts;
4. Once you get a ‘notice of set down(date of trial),’even though in the vast majority of cases the plaintiff withdraws immediately upon seeing your pleadings!!!! So you save this way

*Quantitative research Extinctive prescription invite:

*If you care to take part in a survey, please send a blank email to vanash.naick@gmail.com

----------


## Citizen X

*LegalWise assists you with drafting a letter in which prescription is claimed. So, if you have a LegalWise policy, it will prove to be very beneficial to you with matters regarding prescription*
*“**How can LegalWise assist you?*
LegalWise can assist you with the following:
·        write a letter to your creditor stating that prescription has lapsed, been delayed or interrupted; and
·        calculate your prescription period for you*.”*[1]


[1] LegalWise: http://www.legalwise.co.za/index.php?cID=170. Accessed 20 January 2014

----------


## Fouchee

Hi guys
new on the forum , so please excuse the repeated question a year after the last post!. I had to close down my business in 2008 and subsequently lost my house/car etc in the process as well. During this time I was banking with ABSA and they collected all outstanding monies from the sale of my house at the time and then they closed all my accounts with them. We have not done any business (me and ABSA) since then. Out of the blue a week ago I got a call from MBD attorneys "acting" on their client"s (ABSA) behalf demanding an outstanding amount of R38k. This is 6 years after I stopped doing business with ABSA and during this period I did not receive ANY correspondence from ABSA. 
Do I walk the "prescribed" route with confidence in this case?

----------


## Citizen X

> Hi guys
> new on the forum , so please excuse the repeated question a year after the last post!. I had to close down my business in 2008 and subsequently lost my house/car etc in the process as well. During this time I was banking with ABSA and they collected all outstanding monies from the sale of my house at the time and then they closed all my accounts with them. We have not done any business (me and ABSA) since then. Out of the blue a week ago I got a call from MBD attorneys "acting" on their client"s (ABSA) behalf demanding an outstanding amount of R38k. This is 6 years after I stopped doing business with ABSA and during this period I did not receive ANY correspondence from ABSA. 
> Do I walk the "prescribed" route with confidence in this case?


Hi Fouchee,

Based on the information you provide, you may with confidence go the extinctive prescription route. Remember, only judgment debt, aknowledgement of dent or any actual payments made in a three year period from the date of your last payment will destroy your extinctive prescription claim...

----------


## Justloadit

Chancers trying to squeeze the last drop of blood out of you

----------

Citizen X (08-Apr-14)

----------


## Dave A

> Do I walk the "prescribed" route with confidence in this case?


Depends if the debt arises out of a judgement, which given the scenario certainly sounds possible.

Ordinarily the first step is to request that they prove their claim. This is to set out in detail as to how the debt arises.
I suppose given the time period involved since the last action, you could claim prescription. The onus would then be on them to establish why the debt has not prescribed.

----------

Citizen X (06-Apr-14)

----------


## sterne.law@gmail.com

A judgement only prescribes after 30 years

----------

Citizen X (06-Apr-14)

----------


## PatrickZ

Hi Guys 

I am new on the forum I got to know about this forum via Google while looking for an answer to my legal problem. My legal problem relates to some of the debts against my name which I believe they might have prescribed based on some of the similar scenarios found on this forum. What I would like to be advise of is who do I contact first to claim prescription? the creditor or the credit bereu, in the mean  time I have sent an email to the credit bereu (Experian) asking them to forward me the contact details of the creditors that listed me with them, with a view to contact the creditor claiming the removal of the adverse information against my name. One of the creditor is African Bank which I with a debt that became due in 2008 but according to the info on my credit profile record  they last received payment to this acc in 2010 which I doubt is true, but I need advise I someone can be for I can do anything. Thank you guys - Vanash I salute

----------


## Citizen X

> Hi Guys 
> 
> I am new on the forum I got to know about this forum via Google while looking for an answer to my legal problem. My legal problem relates to some of the debts against my name which I believe they might have prescribed based on some of the similar scenarios found on this forum. What I would like to be advise of is who do I contact first to claim prescription? the creditor or the credit bereu, in the mean  time I have sent an email to the credit bereu (Experian) asking them to forward me the contact details of the creditors that listed me with them, with a view to contact the creditor claiming the removal of the adverse information against my name. One of the creditor is African Bank which I with a debt that became due in 2008 but according to the info on my credit profile record  they last received payment to this acc in 2010 which I doubt is true, but I need advise I someone can be for I can do anything. Thank you guys - Vanash I salute


Morning Patrick,

Welcome to TFSA :Thumbup: 

There's loads of invaluable information right here on TFSA! Have a look at the business related forums, it will add value to your business :Wink:

----------


## Fouchee

> Depends if the debt arises out of a judgement, which given the scenario certainly sounds possible.
> 
> Ordinarily the first step is to request that they prove their claim. This is to set out in detail as to how the debt arises.
> I suppose given the time period involved since the last action, you could claim prescription. The onus would then be on them to establish why the debt has not prescribed.


Tnx for your reply Dave.
There was no judgement against this debt. I did my last transaction with ABSA in 2007 and that was the very last time there was any contact/communication between them and me. My last credit check made this year shows a ridiculous judgement from an attorney for R223-83 ,then I have a judgement for R100k (from 2008) related to my foreclosed company where I signed surety, but nothing related to ABSA.

----------


## King8V

Good day, I've stumbled across this forum after googling about debts older than 3 years. I've also just squizzed through this thread and am astonished at the claims made here.

Id like to know how i can make use of this process to alleviate myself of old debt i have, as i have a few people still hounding me.

----------


## Dave A

> Id like to know how i can make use of this process to alleviate myself of old debt i have, as i have a few people still hounding me.


This should probably be your next read then - Debt: How to claim prescription in practice and how to enter a special plea.

----------

Citizen X (02-Sep-14)

----------


## King8V

Ok, read through that now. So if a judgement was obtained by ABSA, relating to a credit card i had with, that is considered a judgement debt? and is valid for 30years?

----------


## Citizen X

> Ok, read through that now. So if a judgement was obtained by ABSA, relating to a credit card i had with, that is considered a judgement debt? and is valid for 30years?


 In short a judgment debt stays on credit bureaus for a full five years from the date of the judgment being lodged with the credit bureau before it is automatically expunged. A judgment debt is collectable for 30 years and, yes, it prescribes in 30 years. The rationale is that you may not be financially on your feet at this stage, but should you win the lottery in 10 years times, that creditor can still successfully collect on the judgment debt.

----------


## King8V

thing is, its not absa that is hounding me? its a company called MBD, which i see has been mentioned here before

----------


## King8V

how does one determine if a debt has prescribed? I mean know about the 'becoming due story' but its been so long and so much has happened in between, one cannot remember accurately. can i PM u or can you send me an email address pls.

----------


## King8V

Dammit! Anyway, odd thing is ABSA is not even the one trying to collect from me anymore, its a company called MBD, which has been mentioned here before. iv read the 'when debt prescribes' and 'becomes due' parts, but with many things happening between then and now, how does one go about determining when a debt has/will prescribe? Without openinig oneself up to renewing the 3 year period

----------


## Dave A

My best suggestion is when someone calls to collect and you're fuzzy on the details, ask them to prove their claim in writing.
This should set out the origin of the debt, any legal costs incurred, interest raised, any acknowledgement of debt you may have made etc.

----------


## Citizen X

I’ll illustrate, X has a personal loan with ABC bank, the loan was granted in March 2009, X paid diligently until he lost his job in September 2009. He stopped paying. No summons was sued out, no judgment was granted, no acknowledgement of debt was signed or confirmed telephonically. No events to interrupt prescription has taken place..
Question: When did this debt become due and payable?
  It became due and payable, when he stopped paying. Payments are made on a monthly basis, ABC bank required a payment in September 2009, no payment was made, the debt is due and payable.
  The prescription period can be calculated from the date when the debt became due and payable, last payment was October, so the debt became due and payable end September. Has three(3) years passed by? Debt prescribes in September 2012.



*Extinctive prescription*, ordinarily should be raised as a special plea in court. The problem is the creditor is not going to court but demanding payment. Logic and even common sense would dictate that the response to this demand for payment is that the debt is prescribed and there is no trial able issue [they will be wasting the courts time]

----------


## Shari

Hi!

I have a strange case. I took a loan in 2009, and years later put myself under debt review. Many of these accounts landed up by debt collectors and in the case where I had paid up letters, I could submit these, with the others I told them it had been paid under debt review, and when they still nagged, I used the prescription rule. Now I have Nedbank about a personal loan, with the lady stating that I have a judgement on my name and that the prescription doesn't work as they have judgement. At no time was I served with a summons, and there was nothing on my name, as I just had old stuff cleared. I asked for the proof, and she has sent me a copy of a summons issued to me in 2011. What does this mean if the court had issued summons then, but obviously I had not received it and there is no proof of judgement, can they still collect on this debt?

----------


## Citizen X

*Sale of prescribed debt prohibited;* *collection of prescribed debt prohibited*

The National Credit Amendment Bill 19 of 2014 has been signed into law.
Seeing that I don’t ‘google’ my Legislation or Bill[I obtain them from official sites/sources], I’m confident that the following is highly accurate:

*126B.Application of prescription on debt*
(1)
(a) *No person* may sell a debt under a credit agreement to which this Act applies and that has been extinguished by prescription under the Prescription Act, 1969 (Act No. 68 of 1969).
(b) *No person* may continue the collection of, or re-activate a debt under a credit agreement to which this Act applies-
(i) which debt has been extinguished by prescription under the Prescription Act, 1969 (Act No. 68 of 1969); and
(ii) where the consumer raises the defence of prescription, or would reasonably have raised the defence of prescription had the consumer been aware of such a defence, in response to a demand, whether as part of legal proceedings or otherwise.

_[Proposed amendment: S. 126B to be inserted by s. 31 of Act 19/2014 w.e.f. a date to be proclaimed]_

It’s this last part of section 126B that I need to look into:
_[Proposed amendment: S. 126B to be inserted by s. 31 of Act 19/2014 w.e.f. a date to be proclaimed]_

It's the 'with effect from a date to be proclaimed,' that I'm looking into. Has section 126B taken effect? If so when? If not when?

----------


## Citizen X

I would like to take this opportunity to commend the Nimble Group, a debt collecting group, among other services rendered, for their stance that they have officially taken on prescribed debts.



I obtained the following from their website:



http://www.nimblegroup.co.za/news/prescription-and-the-changes-in-the-national-credit-amendments-act/




*“*Prescription relates to the extinguishing of an obligation (a debt) due to the passing of time.

To most South Africans, prescription refers to some medical document your doctor uses to authorise the dispensing of medicine by a pharmacy or clinic. Few South Africans are aware of the Prescription Act 68 of 1969 which relates to the extinguishment of a debt after a prescribed period of time. There are various rules which dictate the time period over which a debt may be considered extinguished or prescribed. There are also various actions which may interrupt or delay the period of prescription and cause a new period to start running afresh. Once one is aware of “prescription”, it is easy to find numerous articles and documents summarising, explaining and providing examples of the prescription of a debt.

The onus is on the consumer to “claim the defence of prescription”. Therefore, credit providers are legally entitled to collect a debt, even after the debt owing has technically prescribed (i.e. become extinguished), provided that the debtor has not raised the defence of prescription.

In May 2014, the President signed into law the National Credit Amendments Act (“NCAB”). S126B of the NCAB specifically relates to debt which has prescribed in terms of the Prescription Act. S126B requires the credit provider to cease collecting on prescribed (extinguished) accounts where the debtor raised prescription as a defence or where the debtor would have raised prescription as a defence had he/she been aware of this defence.

Nimble Group believes that we have the responsibility to educate our debtors on prescription and creating an awareness of this defence to assist our debtors in protecting and exercising their rights.  Our website provides visitors with full access to the Prescription Act 68 of 1969, the National Credit Act and specifically S126B of the National Credit Amendments Act (refer to our Resources page). We have sent our debtors SMS’s requesting that they visit our website to gain an understanding of S126B, prescription and the effects this amendment may have on their accounts. Should a debtor consider that his/her account may be prescribed, we have provided an easy to complete “prescription claim form” on our Accounts Enquiry page where debtors can submit their claim. These claims will be assessed and feedback provided to the debtors.

It is our goal to continue to ensure that our debtors are made aware of the defence of prescription. We encourage our debtors to acquaint themselves with their rights in respect of the Prescription Act and the National Credit Act, seek advice from debt counsellors, legal or financial experts and fully understand the nature of prescription and the effect this may have on their accounts.*”*[1]



Well done NimbleGroup!

 This is ethical practice! This is in keeping with the term profession which in latin is _professio_  and means to make a public promise  or statement :Clap: 


 [1] Nimble Group _“prescription news”_ http://www.nimblegroup.co.za/news/pr...mendments-act/ date of use 11 November 2014

----------


## Citizen X

I’m not one to bask in my own glory and I’m not doing so right now! 
[*“*I don’t need to have NO ambition, you know, I only have one thing that I’d really like to see happen, I’d like to see mankind live together Black, White, Chinese and anyone!*”*]

 

I’m merely reflecting with the  benefit of hindsight. When I posted my first thread on extinctive  prescription I was acutely aware that prescription *strictly and only* could be raised as a defence in court by way of a special plea.



I coined the phrase ‘extinctive prescription claim'*(I need to qualify this before my detractors take a bite at me.*)When I say I coined the phrase I mean claiming prescription directly from the creditor and/or their attorney as opposed to raising it as a special plea in court,’ 

I went through a process of literally arguing this concept with many  CEO’s of banks and other financial institutions(have tons of emails to  prove this). My premise was simply that if you demanding payment and if  one has a comprehensive answer such as ‘the debt is prescribed and even  if you do sue out summons, your action will dismally fail and you will  be wasting the court’s time.’ It was the idea of completely resolving a  matter before it even reaches the judicial process.

If one looks at the internet record, there were very few articles or writing on extinctive prescription and its *benefits to debtors* before 2011. In stark contrast the internet is literally saturated with articles on extinctive prescription today.
The power of TFSA created great awareness about extinctive prescription.
Shortly after 2011, I made  written submissions to the South African Law Reform Commission about the  amendment of the Prescription Act in favour of debtors, for the  recognition of an ‘extinctive prescription claim,’ that day has arrived.  I just didn’t apply my mind properly to which Act should be amended. As  it were the NCA was amended




> This work will address the practical position  of extinctive prescription claims in South Africa today. It will address  the ease alternatively the difficult of claiming extinctive  prescription in terms of section 11(d) of the Prescription Act 68 of  1969. It will reveal shortcomings in industry and the Prescription Act  itself *and perhaps more importantly it will make recommendations for the amendment of the 1969 Act.* This  work in and of itself is an impassioned plea to the South African Law  reform commission to initiate the amendment of the 1969 Act. The purpose  of such recommended amendments is to make the Act more meaningful and  applicable to a debtor who is eligible for an extinctive prescription  claim and simply wants to claim extinctive prescription. 
> 
> 
> 
>   26 September 2012 http://www.theforumsa.co.za/forums/s...ial-plea/page2 #12





> 1. Many  financial institutions and major retailers don’t have rules,  regulations, policy and procedure in place to process extinctive  prescription claims;
> 2. Many financial institutions and major retailers  cannot appreciate the difference between an extinctive prescription  claim and a special plea of prescription;
> 3. Many debt collectors and attorneys acting on  instruction of financial institutions and major retailers intentionally  preclude a debtor from claiming extinctive prescription and engage in  unethical conduct to get a debtor to unwittingly make a payment on a  debt that would otherwise be eligible for an extinctive prescription  claim. The debtor then unwittingly acts to his/her own prejudice by  causing the prescription period to run afresh
> 4. Many debt collectors and attorneys acting on  instruction of financial institutions and major retailers intentionally  preclude a debtor from claiming extinctive prescription and engage in  unethical conduct to get a debtor to unwittingly acknowledge debt that  would otherwise be eligible for an extinctive prescription claim. The  debtor then unwittingly acts to his/her own prejudice by causing the  prescription period to run afresh
> 26 September 2012 http://www.theforumsa.co.za/forums/s...ial-plea/page2 #12


 


I feel vindicated that section 126B has been inserted to the NCA by way of amendment:


*Sale of prescribed debt prohibited; collection of prescribed debt prohibited

*

The National Credit Amendment Bill 19 of 2014 has been signed into law.
Seeing that I don’t ‘google’ my Legislation or Bill[I obtain them from  official sites], I’m confident that the following is highly accurate:

*126B.Application of prescription on debt*
(1)
(a) *No person* may sell a debt under a credit agreement to  which this Act applies and that has been extinguished by prescription  under the Prescription Act, 1969 (Act No. 68 of 1969).
(b) *No person* may continue the collection of, or re-activate a debt under a credit agreement to which this Act applies-
(i) which debt has been extinguished by prescription under the Prescription Act, 1969 (Act No. 68 of 1969); and
(ii) where the consumer raises the defence of prescription, or would  reasonably have raised the defence of prescription had the consumer been  aware of such a defence, in response to a demand, whether as part of  legal proceedings or otherwise.
_[Proposed amendment: S. 126B to be inserted by s. 31 of Act 19/2014 w.e.f. a date to be proclaimed]_

It’s this last part of section 126B that I need to look into:

_[Proposed amendment: S. 126B to be inserted by s. 31 of Act 19/2014 w.e.f. a date to be proclaimed]_

It's the 'with effect from a date to be proclaimed,' that I'm looking  into. Has section 126B taken effect? If so when? If not when?

The credit goes to TFSA*(and rightfully so)*, without which none of this would have even had been possible. 

I therefore owe a debt of gratitude to Dave for giving autonomy with this thread.

----------


## Dave A

Credit belongs to the origin of the thoughts posted here, so well done Vanash  :Thumbup:

----------


## Citizen X

> Credit belongs to the origin of the thoughts posted here, so well done Vanash


Many thanks indeed Boss :Big Grin:  I need a drink after this :Thumbup:  The original idea of prescription in general originated  in ancient Rome.

As previously mentioned credit goes to TFSA. None of this would have been possible without the power of the forum...

"You can copy it but there's no copy to it."

----------


## KCS

I have read most of the posts on this discussion, and find it excellent, interesting and informing.

There is just one thing that bothers me a little. Why would one want to find a way to legally cancel debt? In my world, if you owe money, you make a plan to pay it. End of story. 

Just saying...

Cheers

KC

----------


## Citizen X

> I have read most of the posts on this discussion, and find it excellent, interesting and informing.
> 
> There is just one thing that bothers me a little. Why would one want to find a way to legally cancel debt? In my world, if you owe money, you make a plan to pay it. End of story. 
> 
> Just saying...
> 
> Cheers
> 
> KC


 I’ve answered this very question several times!



Extinctive prescription is not there to allow debtors to get away with debt but rather to *punish* a creditor for not suing out summons on time!
Hope this answer clarifies things

----------


## Citizen X

Section 126(B) of the National Credit Act is in effect, it applies retrospectively from 13 March 2015

[S. 126B inserted by s. 31 of Act 19/2014 w.e.f. *13 March 2015*]

----------

