Emolument Attachment Orders – A High Court Case against Unconstitutional EAOs
The University of Stellenbosch’s Legal Aid Clinic (LAC) has brought a court action against 13 credit providers and the law firm, Flemix & Associates in the Western Cape High Court. LAC is overall seeking to have certain sections of the Magistrate Court’s Act, relating to Emolument Attachment Orders (EAOs), declared as unconstitutional. The outcome of which will alter South Africa’s unsecured lending industry as we know it.
Credit providers collect outstanding debts by obtaining EAOs that order a portion of your salary be attached to your debt each month. Your credit providers serve the EOA on your employer, who is then required to deduct this debt from your salary each month.
‘Debtors often don’t understand what they are agreeing to when they sign EAOs’
Null and Void
Credit providers can only obtain an Emolument Attachment Order once you have received a default judgment or once you have signed a consent to judgment, ordering you to repay the outstanding debt. However, it has often been found that debtors don’t fully understand what they are agreeing to when they are pressed to sign such orders.
The owner of De Morgenzon wine estate in Stellenbosch, Wendy Appelbaum has been integral to the LAC’s case. She mobilised her networks after discovering that some of her farmworkers were having 80% of their salaries deducted each month via Emolument Attachment Orders. The LAC subsequently made application on behalf of 15 consumers. Their aim being to have the EAOs granted against their salaries declared null and void.
‘The EAOs they grant infringe on the debtor’s constitutional right to dignity’
The Clerks of the Court
LAC’s argument is that clerks of court should not be allowed to process EAOs, as their role doesn’t require them to uphold the constitutional rights of debtors, to human dignity and access to justice. LAC claims that an EAO should be carefully inspected by a magistrate before being granted and those that aren’t should be declared fraudulent or invalid.
LAC asserts that clerks of court don’t take the livelihood of the debtor into account and, therefore, the EAOs they grant infringe on the debtor’s constitutional right to dignity, by allowing for excessive salary deductions. LAC is primarily focused on the sections of the Magistrate’s Court Act (MCA) that deal with consent to jurisdiction and judicial oversight of EAOs. This is because the EAOs in question were granted in jurisdictions that are an unreasonably long distance away from the debtors’ homes and places of work.
‘the EAOs were granted in jurisdictions unreasonably far away from the debtors’ homes and work places’
The South African Human Rights Commission
The South African Human Rights Commission (SAHRC) entered the application brought by LAC as a friend of the Court. SAHRC made recommendations with regard to the judicial oversight of EAOs. They recommended that the magistrate’s courts carefully consider the circumstances in which the debtor incurred the debt, so as not to overlook cases of reckless lending.
SAHRC also recommended that the magistrate consider whether or not the debtor had made attempts to repay the loan. Moreover, they suggested the magistrate take note of their income and expenditure. As well as see if they have any other EAOs imposed against them.
This court case is pertinent as it addresses the lack of uniformity in the magistrate’s courts various EAO granting requirements. This issue has proven to be a recurring headache for consumers, credit providers and debt collectors alike.