News / 14 September 2016, 11:57am / Carlo Petersen and Heidi Giokos
Cape Town - “A landmark decision which will have a lasting positive effect on the lives of millions of South Africans, most especially the poor.”
This is how Western Cape High Court Judge Siraj Desai described a ruling handed down in the Constitutional Court on Tuesday.
The ruling means that with immediate effect, no garnishee orders - also known as emolument attachment orders (EAOs) - can be issued without oversight by a magistrate.
Judge Desai’s ruling ensured that employers in the Western Cape would be exempt from enforcing garnishee orders against employees obtained in another jurisdiction or outside the province.
Commenting on the Concourt ruling on Tuesday, he said: “Lots of hard work went into drafting the judgment - and to think when I made it last year the DA laughed at me.”
The Concourt ruled on Tuesday that aspects of the enforcement of garnishee orders are unconstitutional.
Garnishee orders can now be granted only by a judge or a magistrate. They also need to be granted in the jurisdiction of the debtor, and the debtor must be warned via registered letter that they have 10 days to pay the debt if they want to avoid its granting.
These orders give creditors the right to debit the wages of indebted individuals.
The ruling has been welcomed across the board as it will ensure that the collection of unpaid debt is more just and equitable.
Minister of Justice and Correctional Services Michael Masutha welcomed the “landmark” judgment on Tuesday.
“We welcome today’s (Tuesday’s) Constitutional Court judgment on issuing of the garnishee order. The judgment will ensure just and fair services to ordinary people, especially the poor,” Masutha said.
He said the department would make sure all the concerns raised in the judgment are immediately attended to. “Our people must receive qualitative justice services,” said Masutha.
He explained the judgment was consistent with the Courts of Law Amendment Bill, which was introduced by the department in Parliament in May.
Credit Ombud Nicky Lala-Mohan said the judgment set a solid ground for future garnisheeing.
“What the Concourt did was that it confirmed the ruling of the judge in Cape Town (Desai). Certain aspects of the emolument orders are unconstitutional,” he said.
Lala-Mohan said there had been an abuse of workers, with many unaware of the correct process to follow.
“This case goes a long way in curbing abuse. A lot of attention has been gained because of this case. Now you will have a proper manner in which emolument attachments will be dealt with.”
He also said lenders were still entitled to collect their debt, but needed to follow the correct procedure.
Stellenbosch University’s Legal Aid Clinic paralegal adviser, Mathilda Rosslee, said: “I am so happy with what has transpired. The judgment is really overwhelming. It just confirmed that it was what we are trying to protect and the constitutional right.”
The clinic had taken the matter to court, but it was opposed by debt collector Flemix & Associated Incorporated Attorneys.
Concourt Judge Raymond Zondo ruled that the amount to be deducted needed to be appropriate, and that the order would only be for future EAOs.
Rosslee, who has been fighting this battle since 2012, said workers found themselves in situations were the majority of their salaries had been deducted without their consent or understanding of the amount.
“Our average client is illiterate, with some of them not being schooled at all. Some cannot even read English. They (debt collectors) give them papers to sign that an agent has sent them. What the workers are actually signing is Section 129, together with consent and justification. So this has become a problem. We needed to protect these consumers,” she said.