How Do I Remove a Prescribed Adverse Listing from a Credit Bureau?

 

Many people are shocked to discover that they’ve been listed negatively by a bank at the credit bureaus, especially when the debt in question is very old and no longer enforceable. If the claim against you has prescribed, the listing should not be there. But how do you go about fixing it?

Here’s a simple guide to help you understand your rights and the process to follow. I credit our very capable colleague, Nicky Campbell, who assisted me with this blog,

What Is a “Prescribed” Debt?

In South Africa, most debts prescribe (become unenforceable) after three years, provided:

• No payments were made during that time.
• You didn’t admit to owing the debt.
• You weren’t summonsed.

If a debt has prescribed, the bank is not allowed to submit this information to the credit bureaus. Regulation 19(5) of the National Credit Act (NCA) says prescribed information must not appear on your credit record.

Importantly, you don’t need a “prescription letter” to start the process. The credit bureau must have proof that the listing is lawful. If they don’t, they must remove it.

Step-by-Step: How to Dispute a Listing

The dispute process is set out in section 72(3) of the NCA, read with Regulation 20(2). It’s free and fairly simple:

1. Contact the Credit Bureau

Start by getting in touch with the bureau that listed you (such as TransUnion, Experian, or XDS). Ask them how to submit a dispute as the exact process may differ slightly between companies.

2. Submit Your Dispute

You will usually need to provide:

• A certified copy of your ID.
• Proof of residence or other FICA documents.
• A description of your dispute, stating that the debt is prescribed.
2. The Bureau Investigates

The bureau must investigate your dispute at no cost to you. During the investigation, the negative information is flagged so lenders can see it is under dispute but cannot use it against you.

 

4. Timeframe and Outcome

Within 20 business days, the bureau must either:

• Provide credible evidence justifying the listing; or
• Remove the information entirely if they cannot justify it.

What If the Bureau Doesn’t Remove It?

If the credit bureau insists on keeping the listing after providing supporting documents, and you still disagree, you can take the matter further:

1. Go to the Credit Ombud

The Credit Ombud is an independent office that helps consumers resolve credit disputes. It’s free to use and covers issues like incorrect or unfair listings. You can lodge a complaint directly with them.

2. Complain to the National Credit Regulator (NCR)

If you believe the credit bureau or the bank broke the rules of the NCA, report them to the NCR. They can investigate and even take enforcement action if your rights were violated.

3. Take Legal Action

As a last resort, you can go to court and ask for an order to remove the listing. This route may involve legal costs, but it is worth considering if the listing is unlawful and harming your financial standing.

Final Tips

• You have the right to see any evidence used to justify the listing.
• Even if documents are supplied, the listing might still be unlawful — for example, if the debt is prescribed, no notice was given, or the records are incomplete.

Knowing your rights is the first step to clearing your name. Don’t be afraid to challenge what’s unfair.

 

Understanding Personal Injury Claims: Duty of Care, Negligence & Contributory Negligence

 

Introduction

Personal injury claims arise when someone is harmed due to another party’s actions or negligence. Key legal principles - such as duty of care, negligence, and contributory negligence - play a crucial role in determining who is responsible and how much compensation may be awarded.

Duty of Care

• Duty of care is a foundational principle in personal injury law, requiring individuals or entities (such as property owners) to ensure their premises or actions do not pose unreasonable risks to others. For example, property owners must maintain safe environments for visitors, and failure to do so can result in liability if someone is injured.

Negligence

• Negligence occurs when a party breaches their duty of care, resulting in harm to another person. To establish negligence in a personal injury claim, four elements must be proven:
• The defendant owed a duty of care to the claimant.
• The defendant breached that duty.
• The breach directly caused the claimant’s injury (causation).
• The claimant suffered actual damages (physical, psychological, or financial harm) as a result.
• Courts often use the “but for” test to determine causation: Would the injury have occurred but for the defendant’s actions? If not, the defendant may be found negligent.

Contributory Negligence

• Contributory negligence arises when the injured party’s own actions contribute to their harm. If a claimant is found partially responsible for their injuries, their compensation may be reduced proportionally to their degree of fault.
• For instance, if a person ignores safety instructions or fails to use provided safety equipment, and this contributes to their injury, the court may find contributory negligence.
• The process involves:
• Investigating the incident and gathering evidence (witness statements, CCTV, reports).
• Assessing the claimant’s actions against what a reasonable person would have done.
• Determining the percentage of fault attributable to the claimant, which directly reduces the compensation awarded.
• Defendants often use contributory negligence as a defence, arguing the claimant failed to take reasonable care for their own safety.

Conclusion

Understanding these principles is essential for navigating personal injury claims, as they determine liability, potential defences, and the amount of compensation that may be awarded.

Case law

Stephens v Minister of Police

The case involved an 80-year-old man who fell from an unsecured landing at a police station. He had been directed by a police officer to wash his hands at a tap located outside. The plaintiff sustained injuries, including damage to his knee and facial lacerations. He claimed that the police officers failed to ensure the premises were safe for public use.

Bisschoff NO obo Reyners v PRASA

Reyners fell from a moving train operated by PRASA, resulting in severe head injuries. Subsequent surgical intervention led to traumatic brain damage, causing temporal lobe epilepsy, memory loss, aggression, personality changes, and a permanent loss of cognitive abilities and executive functioning. 

Wessels v Pretorius

This case dealt with the negligence and personal liability of a father who had permitted his minor son to use his motor vehicle.