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Constitutional protection of debtors and emolument attachment orders

  • South Africa
  • Employment law


Following a decision handed down by the Western Cape High Court in July 2015 that declared certain sections of the Magistrates’ Court Act 32 of 1944 (“the Act”) relating to emolument attachment orders (“EAOs”) unconstitutional, the Constitutional Court in University of Stellenbosch Legal Aid Clinic and others v Minister of Justice and Correctional Services and others; Association of Debt Recovery Agents NPC v University of Stellenbosch Legal Aid Clinic and others; Mavava Trading 279 (Pty) Ltd and others v University of Stellenbosch Legal Aid Clinic and others [2016] ZACC32 has held that a court must exercise judicial oversight when granting an EAO, allowing for a deduction in the salary of a debtor for unpaid debts.

In terms of s 65J of the Act and in accordance with a court order a debtor’s employer is obliged, to pay over specific amounts out of a debtor’s salary, to the judgment creditor until the judgment debt is satisfied.

In this case the University of Stellenbosch Legal Aid Clinic and 15 of its clients, who were all unskilled workers on the lower end of the wage scale (if employed at all), brought an application against a number of credit providers to have the EAOs granted against them, by clerks of the court in jurisdictions located outside of the jurisdiction where they resided or worked, set aside on the grounds that they were unlawful and invalid.

In considering whether the Act provides for judicial oversight when an EAO is granted, Zondo J held that in its current wording s 65J(1)(a) read in the context of s 65J and the Act as a whole refers to an administrative function and not a judicial function.

Cameron J concurred with Zondo J, and held that “judicial oversight is a constitutionally indispensable requisite” when EAOs are being granted, as it may involve the deprivation of another persons’ property and limit a persons’ constitutional rights of access to court.

The Constitutional Court, per the second majority judgment of Zondo J, held that s 65J(2)(a) and 65J(2)(b)(i) and (ii) are constitutionally invalid and ordered a combination of reading-in and severance of certain words in s 65J(2)(a) and (b) in order to remedy the constitutional defect.

In our law, unlike in foreign jurisdictions, there is no legislation that provides a statutory limit on the amount which may be deducted from a debtor’s salary or the number of EAOs which may be granted against a debtor, but hopefully this judgment will assist in alleviating the harsh consequences EAOs have on low income earning debtors, as all future EAOs may now only be issued after the court has satisfied itself that the order is just and equitable and that the amount deducted is appropriate.