Landmark judgment on garnishee orders

By wcm on May 30, 2017 in Current Affairs

Johannesburg – The Constitutional Court handed down judgment on Tuesday that sees emolument attachment orders requiring judicial oversight to determine if they are just and equitable, and if the amount is appropriate.

An emolument attachment order, commonly known as a garnishee order, is a court order that compels a debtor’s employer to pay his/her debt from their salary.

The judgment confirmed an order made by the Western Cape division of the High Court that certain words in section 65J(2) of the Magistrates’ Court Act was inconsistent with the constitution. The act failed to provide judicial oversight over the issuing of garnishee orders.

This judgment follows a ruling in the Western Cape High Court by Judge Siraj Desai last year that employers in the Western Cape are exempt from enforcing garnishee orders against their employees which were obtained in another jurisdiction, or outside the province.

The University of Stellenbosch Legal Aid Clinic had first brought the case forward to the Cape Town High Court, to fight garnishee orders issued to applicants by clerks of the court. Fin24 reported that the individuals who brought the application forward were impoverished and employed as farmworkers, cleaners and general workers at the university and in the Stellenbosch area.

The garnishee orders led to an “overwhelming majority or portion” of workers’ salaries being taken to pay off debts, said Osmond Mngomezulu, senior legal officer at the South African Human Rights Commission (SAHRC).

“The judgment is a victory for the poor, who previously did not have access to justice,” said SAHRC spokesperson Gail Smith. The judgment, although prospective, sets a precedent going forward, she added. An order cannot be made without a presiding officer such as a magistrate or judge, explained Mngomezulu.

“Everyone has a constitutional right to have access to the courts,” he said.

Article Source: Fin24