Debt: How to claim prescription in practice and how to enter a special plea

[DDVILJOEN]

Hi Citizen X, I stumbled over your thread here and need some advice. I have had no dealings Nedbank since 2008. In January 2016 I opened a new account with them and was abruptly and with out warning debit over R8000 for an account that they claim I overdrew. At first they agreed to pay the money back. Then I was told to send them an email, which I did, claiming prescription and refusing to acknowledge any debt without proof, Nedbank then claimed that I agreed to a debit order for which I again asked for proof of, instead of sending proof they called me and informed me that they would not be paying anything back unless I signed a debit order. I get the sneaky suspicion that they are trying to force a prescription into lapsing. What recourse do I have?

[Citizen X]

Hi Citizen X, I stumbled over your thread here and need some advice. I have had no dealings Nedbank since 2008. In January 2016 I opened a new account with them and was abruptly and with out warning debit over R8000 for an account that they claim I overdrew. At first they agreed to pay the money back. Then I was told to send them an email, which I did, claiming prescription and refusing to acknowledge any debt without proof, Nedbank then claimed that I agreed to a debit order for which I again asked for proof of, instead of sending proof they called me and informed me that they would not be paying anything back unless I signed a debit order. I get the sneaky suspicion that they are trying to force a prescription into lapsing. What recourse do I have?

Hi DD Viljoen,

Off the cuff and in my opinion, regarding the first account[the one that the bank abandoned in 2008] according to current NCA provisions, the bank was to have regarded the debt as prescribed and not reactivate the prescribed debt(Section 126 B). That said, regarding your opening of a new account, this was a complete separate transaction, a different account. A bank shouldn’t, especially when it is a prescribed debt, take money unilaterally without your knowledge, consent, approval[this debit came as a surprise to you I presume]. In any event if a Bank argues that a unilateral debit is to be regarded as a payment by a debtor, then this is a simulated transaction as it was not made by the debtor himself/herself, in fact it was taken by the bank. I think that the bank ought to give you back that money.[Remember to ensure that all the elements/requirement of prescription apply]

[DDVILJOEN]

Yes the debit came as a complete surprise and after initially agreeing to pay it back the bank is now holding on to the funds until I agree to enter into a debit order agreement with them. I refuse to let them force a lapse in the prescription! After I asked them to provide me with proof of where I acknowledged the alledged debt or agreed to make a payment of any kind I was contacted by a debt collecter who sent me a breakdown of a bill but still with out proof of any alledged agreement. I am sorely tempted of laying a charge of blackmail against the bank.

[Citizen X]

Yes the debit came as a complete surprise and after initially agreeing to pay it back the bank is now holding on to the funds until I agree to enter into a debit order agreement with them. I refuse to let them force a lapse in the prescription! After I asked them to provide me with proof of where I acknowledged the alledged debt or agreed to make a payment of any kind I was contacted by a debt collecter who sent me a breakdown of a bill but still with out proof of any alledged agreement. I am sorely tempted of laying a charge of blackmail against the bank.

Good morning DDViljoen,

Indeed, unilateral payments(according to case law), can never be seen as 'payment,' in terms of the prescription Act. That said, should you require my personal intervention, please send me a private message

[Citizen X]

If you have received a summons for a prescribed debt, I can assist. Please PM me your contact details.

[Citizen X]

I first wrote about prescription on TFSA on or about 2012. Since then a great deal has changed in terms of legislation.

The legal question: Should a prescribed debt be listed on a credit bureau?

The simple and straight forward answer is no!

Regulations 19(5) and 19(6) of the National Credit Regulations prohibit the listing of a prescribed debt on credit bureaus. There is case-law on this issue. A recent case is: Malesa V DMC Case number: NCT/226906/2022/141(1)(b)

Should you find yourself in a position where a prescribed debt has been listed on credit bureaus, and you require my personal intervention on the matter, please send me a private message.

If the aforesaid is indeed the case, it also means that you have a prescribed debt matter to contend with. That is with the creditor or the entity which purchased the debt.