‘Victory for indebted poor’



September 15, 2016
‘Victory for indebted poor’

Judge Siraj Desai

Garnishee orders cannot be enforced without consent from a judge or magistrate.

People who can’t afford to pay their debt can rest easier after a landmark court ruling banning creditors from enforcing garnishee orders without consent from a judge or magistrate.

The Constitutional Court (ConCourt) decision on appeal reinforces the ruling by Western Cape High Court Judge Siraj Desai, who said on Tuesday: “A landmark decision which will have a lasting positive effect on the lives of millions of South Africans, most especially the poor.”

Garnishee orders give creditors the right to debit the wages of indebted mense. ConCourt said aspects of the enforcement of the orders are unconstitutional.

The ruling means that with immediate effect, no garnishee orders – also known as emolument attachment orders (EAOs) – can be issued without oversight by a judge or magistrate, reports the Cape Times.

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.

The ruling has been welcomed across the board.

Credit Ombud Nicky Lala-Mohan said there had been an abuse of workers, with many unaware of the correct process to follow.

He added lenders were still entitled to collect their debt, but needed to follow a procedure.

Stellenbosch University’s Legal Aid Clinic paralegal adviser, Mathilda Rosslee said workers’ salaries had been deducted without their consent or understanding of the amount.

“Our average client is illiterate… 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,” she said.

The matter was dismissed with costs.

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