For many years, debt collectors had a field day contacting consumers about very old, very inflated debts, and badgering them to pay up.
And if they said anything which could be regarded as an acknowledgement of the alleged debt – such as promise to make a payment – they’d be liable to pay whatever sum the collector demanded of them, including years of interest and collection costs.
The word collectors most dreaded hearing from an alleged debtor was “prescribed”.
That’s because the Prescription Act states, in essence, that if, in the past three years, you have not acknowledged a debt in any way, made a payment, or been summonsed in respect of it, you are not legally obliged to pay it. (Home loan and all government-related debts only prescribe after 30 years.)
The law was intended to incentivise credit providers and their collectors to collect debts from lapsed payers quickly, rather than sit on them for years then track down and lean on people to pay a debt which by then had been bloated with interest and costs.
But in reality, many consumers had no clue about prescription, so they buckled under pressure and cancelled their prescription defence by making a payment.
Hence “chasing” prescribed debt became a lucrative business for many.
And then, on Friday March 13 – unlucky for some – the National Credit Amendment Act was promulgated, making it illegal for a company to sell a prescribed debt, or to collect a debt which has prescribed, “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”.
In other words, it is no longer up to the consumer to know about the Prescription Act in order to raise it as a defence – and thus avoid paying an old debt. They legally cannot and should not be asked to pay a prescribed debt in the first place.
This applies to all credit agreement-related debt – car and home loans, credit card accounts, store accounts and the like – which is 94% of all debts in SA.
But old habits die hard, it seems. I’ve had quite a few e-mails from readers who’ve been getting SMSs and calls from several companies about old debts which appear to have prescribed.
CASE 1
Shayne Farrell was contacted recently by debt collectors Norman Bissett & Associates (NBA), claiming that she owed Edgars more than R4000, including R2383.88 in collection fees.
“I recall paying off this account, and I haven’t been contacted about it, either by Edgars or NBA, until now, despite working for the same company since 2006.
“I would be happy to settle this with Edgars if they could prove I owed them this money,” Farrell said.
She didn’t know about prescription, but the point is, she didn’t have to, not since March 13. I took up the case with Edcon, to establish, firstly, if Farrell had owed the company any money.
The company said she had failed to pay for one purchase way back in December of 1996. Although the collectors did attempt to collect the debt from Farrell before March this year, Edcon said, the company has now instructed NBA to close her file.
CASE 2
Mava Silinga was also contacted by NBA late last year, claiming he owed a sum of about R28 000 on a car that was repossessed in 2007.
“I assumed that the sale of the car covered my outstanding balance as I was never asked to pay anything further, despite my contact number remaining the same, and my credit record was not affected,” he said.
Then came the demands from the end of last year. Each time he was contacted by NBA, he asked for a breakdown of the amount he allegedly owed, but this was never forthcoming, he says.
The SMSs kept coming, even after March 13, offering him a discount on the amount being claimed.
NBA spokesman Denzil Rondon said the company had contacted Silinga repeatedly via phone and SMS, but he had avoided “our efforts to engage”.
“The fact that no payment has been made, is, on its own, inconclusive that the account has prescribed,” Rondon said.
“To our knowledge, the defence of prescription has never been raised by Mr Silinga, either prior to or after taking cession of the debt,” Rondon said.
But the point is that since March 13, an alleged debtor is not required to raise a prescription defence.
After that date, all prescribed debt files ought to have been closed.
Asked if NBA was now willing to close its file on Silinga, given that the company had not provided any proof that Silinga had either made a payment, acknowledged the debt or been summonsed in respect of it, Rondon responded: “We remain open to the possibility that we do not have all the facts at our disposal in respect of this matter and to the extent that Mr Silinga believes that the account has prescribed, he should contact us and register his contention and we will deal with the matter appropriately.”
He intends to do so.
Prescription Act puts debt collectors on the backfoot
And if they said anything which could be regarded as an acknowledgement of the alleged debt – such as promise to make a payment – they’d be liable to pay whatever sum the collector demanded of them, including years of interest and collection costs.
The word collectors most dreaded hearing from an alleged debtor was “prescribed”.
That’s because the Prescription Act states, in essence, that if, in the past three years, you have not acknowledged a debt in any way, made a payment, or been summonsed in respect of it, you are not legally obliged to pay it. (Home loan and all government-related debts only prescribe after 30 years.)
The law was intended to incentivise credit providers and their collectors to collect debts from lapsed payers quickly, rather than sit on them for years then track down and lean on people to pay a debt which by then had been bloated with interest and costs.
But in reality, many consumers had no clue about prescription, so they buckled under pressure and cancelled their prescription defence by making a payment.
Hence “chasing” prescribed debt became a lucrative business for many.
And then, on Friday March 13 – unlucky for some – the National Credit Amendment Act was promulgated, making it illegal for a company to sell a prescribed debt, or to collect a debt which has prescribed, “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”.
In other words, it is no longer up to the consumer to know about the Prescription Act in order to raise it as a defence – and thus avoid paying an old debt. They legally cannot and should not be asked to pay a prescribed debt in the first place.
This applies to all credit agreement-related debt – car and home loans, credit card accounts, store accounts and the like – which is 94% of all debts in SA.
But old habits die hard, it seems. I’ve had quite a few e-mails from readers who’ve been getting SMSs and calls from several companies about old debts which appear to have prescribed.
CASE 1
Shayne Farrell was contacted recently by debt collectors Norman Bissett & Associates (NBA), claiming that she owed Edgars more than R4000, including R2383.88 in collection fees.
“I recall paying off this account, and I haven’t been contacted about it, either by Edgars or NBA, until now, despite working for the same company since 2006.
“I would be happy to settle this with Edgars if they could prove I owed them this money,” Farrell said.
She didn’t know about prescription, but the point is, she didn’t have to, not since March 13. I took up the case with Edcon, to establish, firstly, if Farrell had owed the company any money.
The company said she had failed to pay for one purchase way back in December of 1996. Although the collectors did attempt to collect the debt from Farrell before March this year, Edcon said, the company has now instructed NBA to close her file.
CASE 2
Mava Silinga was also contacted by NBA late last year, claiming he owed a sum of about R28 000 on a car that was repossessed in 2007.
“I assumed that the sale of the car covered my outstanding balance as I was never asked to pay anything further, despite my contact number remaining the same, and my credit record was not affected,” he said.
Then came the demands from the end of last year. Each time he was contacted by NBA, he asked for a breakdown of the amount he allegedly owed, but this was never forthcoming, he says.
The SMSs kept coming, even after March 13, offering him a discount on the amount being claimed.
NBA spokesman Denzil Rondon said the company had contacted Silinga repeatedly via phone and SMS, but he had avoided “our efforts to engage”.
“The fact that no payment has been made, is, on its own, inconclusive that the account has prescribed,” Rondon said.
“To our knowledge, the defence of prescription has never been raised by Mr Silinga, either prior to or after taking cession of the debt,” Rondon said.
But the point is that since March 13, an alleged debtor is not required to raise a prescription defence.
After that date, all prescribed debt files ought to have been closed.
Asked if NBA was now willing to close its file on Silinga, given that the company had not provided any proof that Silinga had either made a payment, acknowledged the debt or been summonsed in respect of it, Rondon responded: “We remain open to the possibility that we do not have all the facts at our disposal in respect of this matter and to the extent that Mr Silinga believes that the account has prescribed, he should contact us and register his contention and we will deal with the matter appropriately.”
He intends to do so.
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