Credit Information Department
The Credit Information Department had a total of 1 432 disputes to date, a 1.78% decrease as compared to the same period last year.
Our department regularly deals with complaints from consumers about being listed at the credit bureau without being notified of such listings. In this edition, we would like to touch on the issue of notifying consumers prior to listing this information, according to the guidelines provided by the National Credit Act (NCA). We will explore provisions made by the Act and how our office deals with matters pertaining to notification prior to listing.
According to section 72 (1) of the Act every person has a right to (a) be advised by a credit provider within the prescribed time before any prescribed adverse information concerning the person is reported by it to a credit bureau, and to receive a copy of that information upon request.
Regulation 19 (4) provides for the notification to the consumer at least 20 business days prior to submitting certain categories of adverse information concerning that consumer to a credit bureau. These include classification of consumer behaviour such as delinquent, default, slow paying and absconding or not contactable.
Section 72 (1) and regulation 19 (4) clearly requires that a consumer has to be given notice before being listed, but there is no clarity on how this notification needs to be given. Subscribers use varying methods of notifying consumers, these include sms’s, letters using ordinary or registered mail and in some instances emails are sent to the consumer.
In the absence of clear and specific guidance from the Act, the office of the Credit Ombud has adopted the following principles in respect of methods of notification:
- The Act is not specific on requirements of how the notification needs to be given, therefore the office will view methods such as a telephone call, sms, letters (registered or ordinary mail) or in person as an acceptable form of notification.
- The onus will be on the credit or service provider to ensure that it has proof of giving the consumer notice prior to listing. The following would apply:
- Any electronic form of communication, such as email: a read/receipt or a reply would be regarded as proof of notification;
- Telephonic notification: phone recordings
- Registered mail using the track and trace method and provided always that the letter was correctly addressed.
- In the event that ordinary mail was used and the consumer denies having received notice, confirmation of sending a letter by the credit provider will not be sufficient evidence of compliance with the Act – any record, such as a telephone call or email, that the consumer contacted the credit provider in response to the letter will serve as sufficient proof that the consumer received notice
If the credit or service provider acquires knowledge that the consumer did not receive the notice that was sent to them, before the information is listed at the bureau, such information may not be submitted to the bureau. It is then up to the provider to take additional steps to ensure that the consumer is notified. In the event that registered mail was used to notify the consumer and the letter was returned to the sender with a notice, for example that the building was demolished or that the consumer no longer resides at the said address, even if the address was listed as the domicilium for the consumer, it cannot be accepted that the consumer was advised of the intention to list him/her at the bureau.
In instances where the information had already been submitted to the credit bureau and the consumer claims that they did not receive notice of the listing and the credit or service providers methods did not comply with the requirements stipulated above, such information will have to be removed from the consumer’s credit profile.
