Mr Mbuli bought a set of pots for R3 000 from Kitchen Essentials. The agreement was that Mr Mbuli would make monthly payments of R600 over six months. After two months of making the payments, Mr Mbuli was retrenched as a security guard where he had been working for three years. Mr Mbuli was now unable to make the monthly payments for the pots. Although he still owed R2 000, he did not report his retrenchment to Kitchen Essentials.

After failing to make his payment, Mr Mbuli received a written notice / letter of demand from Nkosi Debt Collectors – but he ignored the letter. The Sheriff of the court came to Mr Mbuli’s house with a summons issued by the court and removed goods from his property. They also took goods belonging to Mr Mbuli’s tenant.

Mr Mbuli comes to the advice office for assistance.

What does the Law Say?

A credit provider may only begin legal proceedings against a consumer:

• After a section 129 letter of demand has been sent to the person owing the money, and
• after 10 working days have passed since delivery of the written notice.
  (See: Step 1: Phone calls and letters of demand)

If a consumer ignores a written notice/letter of demand, an agent of the creditor will be sent to the consumer’s home or workplace to ask them to sign either a Section 57 or section 58 document. Alternatively, the creditor can get the Sheriff of the court to go to Mr Mbuli’s house to serve a summons to pay the debt or to appear in court. A summons is an order of the court and should never be ignored.

(See: Step 2: Signing Section 57 or Section 58 documents or receiving a summons)

If the consumer gets a summons, they have five working days to respond by –

• Making arrangements to pay the money they owe, or
• Consulting an attorney, or
• Informing the court that they intend to defend themselves (file a Notice of Intention to Defend).

If Mr Mbuli signs the section 57 document and then defaults on his payments (in other words, he doesn’t stick to the agreement), or he signs the Section 58 or ignores the summons, then the credit provider is allowed to get a court order to repossess goods. A Sheriff of the Court brings the court order to the consumer’s home. The Sheriff of the Court can take and sell as much property as is necessary to pay off the debt. The first time the Sheriff of the Court visits is for purposes of making a list of the consumer’s possessions.

(See: Warrant of execution against the consumer’s property)

The second time the Sheriff comes, s/he will take possessions away. The Sheriff is the only person who can remove possessions and must have a court order to do this. In addition he or she must get the consumer’s permission to enter his/ her house or flat and should not come in the middle of the night or when the consumer is not at home.

(See: Legal consequences of defaulting on debt obligations)

What Can You Do?

Check with Mr Mbuli that he received the letter of demand and that 10 working days have passed since it was delivered. .

If Mr Mbuli confirms that he did receive the letter of demand but ignored it, explain that the court therefore had a right to issue a summons. However, the Sheriff had acted improperly because of the following:

• He took goods from the house at the same time as issuing the summons (this meant that Mr Mbuli did not get the five days to respond after receiving the summons, before any court order was taken against him); and
• He had not listed the possessions that belonged to Mr Mbuli, and had taken goods that belonged to a tenant.

Advise Mr Mbuli to consult a lawyer and recommend someone who is an expert in this kind of case.