(First Published in New Era Newspaper - 13 August 2014)
Dear Consumer Court,
I was very upset today when I received an SMS message
informing me that I had a debt with the City of Windhoek and that I should
please make a plan to pay. They gave a reference number as well as a bank
account number and requested I pay at least a minimum of N$ 100.00 as part of a
payment plan. I do not know of any outstanding account with CoW so contacted
the number given on the SMS. The debt collection company informed me that they
have been given all the debtors of CoW and they have me with an outstanding
account for ambulance services. Unfortunately they did not seem to have the
date of the account but were very insistent that I should start paying at least
a small amount to get the debt settled. After going through my own records, I
found that I had gone to hospital over 8 years ago and this could be the only
time that I could have used an ambulance of CoW. My question is, “Can the debt
collection company still force me to pay as they say they will put my name on
the blacklist if I do not?”
I have never received an account from CoW since the incident
and had no idea that they were putting me on their blacklist. I am now also
worried that CoW will not allow me to open a water and electricity account etc.
until I pay the debt.
________________________________________________________
One of the readers of Consumer Court contacted me the past
week complaining about a debt of over 8 years old that she was now being forced
to pay. The debt collection company had informed her that she had the
outstanding account for ambulance service from the City of Windhoek and if she
did not pay, they would be blacklisting her name.
I contacted the debt collection company and was quite
speedily assisted in getting in contact with their manager. After explaining
the situation, the manager told me that the CoW had given them the debtors
book, but had not provided them with the dates from which the debt originated.
I immediately realised this was a tricky situation, whether on purpose or not,
I do not know.
I have previously written about old debt and the fact that
most debtors are not aware that a debt that is older than three years can be
defined as prescribed debt.
According to the South African Prescription Act 68 of 1969 -
which is also valid in Namibia, a debt is prescribed when the debtor is no longer
liable for it. The “tricky” thing about this law is that the consumer must
first know about this law to be able to raise the Prescription Act as a
defence. A well-known quote states that “Ignorance of the law excuses no-one”.
I have previously researched this law and found very little
assistance from regulatory authorities, and even less from the debt collectors
that should be aware of this law. Even worse to me is that there is no debt counselling
services of any note anywhere in Namibia that can assist the financially
illiterate consumer.
So how does prescription work? If after three years, a
consumer realises that a creditor wants to collect the debt, but they (the
debtor) has not acknowledged the debt nor has a court of law summoned the
debtor, the consumer can apply for prescription. (Please note that this is also
valid if you have not paid any amount on the account for at least three years.)
As the consumer, you must inform the creditor (or debt
collector) that the amount owed is prescribed and they are therefore not able
to insist upon payment. For legal purposes, the consumer must also raise the
case for prescription with the courts by sending a registered letter stating
that they believe the debt has prescribed. It is very important to note that
no-one can do this for you. Only the consumer can raise a case of prescription.
To put it in plain English: If you have an unpaid account
that is older than three years since your last payment and the creditor has not
tried to collect this debt, then your debt has become prescribed and you no
longer are responsible for the account. Be aware, that the court may dismiss
your case for prescription if you fail to prove that the statement was paid or
that a summons was not provided.
Read that last sentence again! If you have made a payment
(even after 3 years) the account becomes valid and you are liable to repay the
creditor.
In our case this week, the consumer contacted me before
making the payment of N$ 100 and can now insist that her debt has become
prescribed and she is no longer responsible for the debt.
This week I must say shame on the City of Windhoek (and
other unscrupulous debt collections) that know the debtor is no longer liable
for the debt under prescription, but they trick them into making a small
payment again which now keeps the debt alive.
In this case, ignorance of the consumer is blessedness for
the creditors.
