‘More than 8 million people are battling with debt repayments’
CONSUMER experts have welcomed Tuesday’s constitutional court decision on emoluments attachment orders saying it will benefit millions.
The court ruled the emolument attachment orders also known as garnishee orders should only be issued by magistrates and not clerks of courts as was the case previously.
Garnishee orders are used to force employees to repay debt from their income. More than 8 million consumers are battling high levels of debt with many months behind in payments.
Consumer bodies say the ConCourt ruling that garnishee orders must be authorised by magistrates will put an end to corruption in the past.
“We know from many reports and first-hand experience that many emolument orders were issued at specific courts where corrupt clerks were happy to issue orders to micro lenders or other creditors in return for bribes,” debt expert Neil Roets said.
He said he had come across many cases where consumers had been issued garnishee orders authorised by questionable signatures.
“In some instances, signatures were outright forgeries. The fact that a magistrate now has to be involved in the process is going to go a long way to eradicate many of these corrupt practices,” he said.
Senior legal advisor with the South African Human Rights Commission Osmond Mngomezulu said those who were not satisfied with garnishee orders could challenge them.
“One can approach a court armed with a judgment to say ‘I have an order granted in a manner that was inconsistent with the Constitution’,” he said.
The University of Stellenbosch’s Legal Aid Clinic took the case to court on behalf of farm workers in the Cape winelands who had garnishee orders against their salaries.
Western Cape High Court justice Siraj Desai ruled that the orders issued in other jurisdictions were “unlawful, invalid and of no force and effect”.
Flemix and Association of Debt Recovery Agents administrating garnishee orders on behalf of 13 creditors, then applied for leave to appeal Desai’s judgment.
The Law Clinic which welcomed the Western Cape’s ruling requested that the order be confirmed by the Constitutional Court. It also opposed leave to appeal by the law firm.
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- July 2015: The Western High court rules that garnishee orders against workers are unlawful and invalid
- Judge Siraj Desai rules that sections of the Magistrate Court Act were inconsistent with the Constitution
- September 2016: Constitutional court rules that judicial oversight is required when garnishee orders are issued
- Credit active consumers in South Africa – 23.88 million
- Consumers with impaired credit records – 9.55 million