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Justice Department finalising its Magistrate Courts Bill to curb debt abuse

20 July 2015

The Department of Justice and Constitutional Development is finalizing a Magistrates’ Courts Amendment Bill in an attempt to curb the abuses of the debt recovery procedure system.

This bill will soon be available on the Department’s website for further consultation before it is submitted to Parliament for consideration and enactment.

Recently, Judge Siraj Desai of the Western Cape High Court ruled that the current system of Emoluments Attachment Orders (EAO) also known as garnishee order is unlawful, invalid and is inconsistent with the Constitution as they do not provide for judicial oversight.

This comes after the University of Stellenbosch Legal Aid Clinic on behalf of several debtors brought a court application  to have certain provisions of the Magistrate’s Courts Act, 1994 (Act No. 32 of 1944), declared unconstitutional and invalid because they do not provide for judicial oversight over the authorization and issuing of EAO.

The court was also asked to give clarity on whether section 45 of the Act permits a debtor to consent to the jurisdiction of a court other than that in which the debtor resides or employed in respect of the enforcement of a credit agreement to which the National Credit Act (NCA), 2005 (Act No 34 of 2005) applies.

The matter will now go to the Constitutional Court for confirmation. In terms of section 167(5) of the Constitution, the Constitutional Court must confirm any order of invalidity made by the Supreme Court of Appeal, the High Court of South Africa, or a court of similar status, before that order has any force. 

Until such time that the Constitutional Court gives final judgment on the matter, creditors and their attorneys countrywide are urged to take this judgment seriously and ensure that judgments and EAO’s are obtained with due regard to the sentiments expressed in the Stellenbosch matter and to have those which have not been legally obtained, rescinded. 

We urge employers to become more involved in the process and negotiate with creditors to withhold EAOs until confirmation of invalidity. They can also approach the clerks of the courts where the EAOs originated to ensure that judgment has been granted lawfully, check how much of a debtor’s salary is committed to EAOs and whether he or she can afford another deduction.

Enquiries: Advocate Mthunzi Mhaga
Spokesperson for the for the Ministry of Justice and Correctional services
083 641 8141