Debt: Legally cancelling a debt over 3 years old

[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4.1	A Statute remains an active Statute until repealed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]

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[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:

1. To obtain any and all statements pertaining to bank accounts where there is a direct or indirect dispute of the actual amount owing;
2. Complete any and all Prescription Claim documents in terms of the Prescription Act 68 of 1969 on my behalf;
3. 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 whatsoever
4. To 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.
5. To state my case and/or argue any dispute(s) with regards to such extinctive prescription claim on my behalf.
6. 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;
7. To file written complaints with any law society(where an attorney is involved) and unethical behavior is alleged only after consultation with me
8. To 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

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[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

[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]

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

[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 linkhttp://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.

Regards

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!