The short answer
Find out the details of your debt and repayments: If you have paid more than double how much you initially owed, you are not liable for more payments.
The whole question
Dear Athalie
When my child was still in school, I was a single mother and struggled to pay his school fees. Eventually, their lawyers sent the sheriffs to my sister's house and attached her furniture but even though I told them that it was not mine, they did not listen.
I settled the full debt up to 2015 and in June 2022 paid a further R20,000 from my savings. But the sheriffs soon came back and demanded that I pay another R19,000 and a further R17,000 for outstanding fees from 2013 and 2017. But I am unemployed and don't have a cent to pay them with.
The long answer
For a start, the sheriffs should not have taken your sister’s furniture, as they are not allowed to attach the property of third parties even when they have been authorised by a court order to attach and remove your property to be sold by public auction. (In addition, they are not allowed to attach and remove food, beds, bedding and clothes.)
The steps to be followed by a creditor (the school) are to first send a letter of demand, which sets out the period within which the outstanding fees must be paid. If there is no response to the letter of demand within the time period it sets out for the payment, then a summons is delivered by the sheriff or by registered post, and if there is no response to that and the debtor does not state, within 10 court days, that they will defend the claim in court, the creditor will go on to obtain a default judgment from the court, which will issue a court order for the sheriffs to attach and remove the debtor’s property.
A public school does have a right to hand over unpaid fees to debt collectors if a parent has not applied for a fee exemption on the grounds of being unable to afford to pay fees. According to the South African Schools Act, it must first be established that a parent has not applied for a fee exemption before a governing body enforces the payment of school fees. The school must also be able to prove that written confirmation was sent to a parent either by hand or via registered mail to inform the parent(s) that they have not applied for exemption from school fees. This letter also serves as a notice for the parents to pay the outstanding school fees and the parents are then given three months to settle the outstanding amount from the date of the notice.
In South Africa, a certain kind of debt (like credit card debt or school fees) will prescribe (will no longer apply) after three years, under the Prescription Act 68 of 1969, provided that the debt was never acknowledged, no payments towards it were made and the creditor does not start legal proceedings to recover it – such as a letter of demand, followed by summons and a court order authorising the sheriffs to attach and remove property.
GoLegal says that the best way to assess whether a debt has prescribed would be to see what is reflected on the consumer’s credit report, so they urge the consumer to get a free copy of their credit report.
Tumi Mokobe of Neumann van Rooyen Attorneys says in a 2019 article that “The amendment to the National Credit Act made in 2015 makes it illegal for a credit provider or any debt collector to collect debt on a prescribed debt unless they can successfully prove that the debt has not prescribed.”
But a BusinessTech article in 2022 quotes banking ombud, Reana Steyn, as saying that once a consumer has acknowledged owing the debt – even if they have not made payment – they will not be successful in raising prescription as a defence in court.
As a result of confusion around issues caused by that amendment and other motivations, a new Prescription Bill was published in early 2018 for comment and the South African Law Reform Commission was consulting on the proposed amendments. Apparently, at this stage, it is not in its final form, and so is not yet working.
In your case, as the legal step of obtaining a court order was taken to attach your property, the debt would not have prescribed. Another GoLegal article says, “Should the debtor acknowledge the outstanding debt or make payment towards it, within the 3-year period, prescription is interrupted and the debt remains valid and enforceable. In addition to this, prescription can be interrupted by service, on the debtor, of any legal “process” wherein the creditor claims payment of the debt.”
Although you had paid the debt in full by 2015, it seems that fees were again owed for 2017 when your son matriculated.
It would be important to establish exactly what the amount is that you owe for all the school fees and how much you have already paid (including the fees for the lawyers, interest, etc). You have a legal right to a statement of the amount owed and how it was calculated.
Under the in duplum rule (which is Latin for double the amount), you should not pay more than double the amount you originally owed. The in duplum rule applies when a person goes into default – in other words, when they stop paying their debt. This is because the interest and lawyers’ fees would otherwise continue to be added to the original debt so that you could never get out of debt.
This is an example of the in duplum rule:
Debt at the time of the default: R1,000
Interest and fees added over time: R1.000
Total owed ever: R2,000
News24 sums it up: “…one would need to know how much the consumer borrowed originally, how much the consumer has paid since inception of credit agreement, how much (if any) were added charges and additional costs (especially pertinent if debt was sold between entities). If the total amount (including all payments towards fees, interest, etc.) the consumer has paid since inception of the credit agreement is double of the amount the consumer initially borrowed, it is possible that in duplum rule will apply. In that case, the consumer would not be liable for any more payments.”
You can contact the office of the Credit Ombud for free assistance. Phone 0861 66 28 37, visit www.creditombud.org.za, email ombud@creditombud.org.za or SMS “Help” to 44786 and they will call you.
You could also approach Legal Aid with all the documents to help you assess whether the in duplum rule applies and whether any case could be made to cancel the latest judgements against you. You could also ask them what can be done about the sheriffs attaching your sister’s furniture.
Legal Aid is a means-tested organisation and must assist people who cannot afford a lawyer. Here are their contact details:
Legal Aid Advice Line (Toll-free): 0800 110 110
Please-Call-Me number: 079 835 7179
Wishing you the best,
Athalie
Answered on Oct. 4, 2022, 3:35 p.m.
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