Attaching a portion of a person’s salary is certainly toeing a very sensitive line of personal infringement. Proper consideration should therefore be given to all the relevant facts and processes before an emoluments attachment order, as it is legally known, is granted.
However, for years the practice was that such orders were merely processed and rolled out in masses in every conceivable magistrate’s court in the country, until the University of Stellenbosch’s Legal Aid Clinic (Law Clinic) and others started to question the legalities thereof. After much debate, legal argument and court orders the Constitutional Court finally gave legal certainty about requirements that have to be met before emolument attachment orders may be issued on 13 September 2016.
Stellenbosch’s above Law Clinic, amongst fifteen of their clients, applied to the Constitutional Court for confirmation of an order granted by the Western Cape High Court that certain specified words in Section 65J(2) of the Magistrate’s Court Act 32 of 1944 is inconsistent with the Constitution and therefore invalid to the extent that they fail to provide for judicial oversight over the issuing of emolument attachment orders against judgement debtors. The Constitutional Court agreed and ordered that:
…with immediate effect no emolument attachment order may be issued unless the court has authorised the issuing of such emolument attachment order satisfying itself that it is just and equitable and that the amount is appropriate.
Judgement debtors can thus now rest assured that emolument attachment orders may now only be issued and implemented against their salaries if a court of law has had proper judicial oversight, with other words, that the court had insight into the circumstances giving rise to the application for such an order and, more importantly, that the debtor will be able to afford the execution of such an order.
To gain some legal insight into the reasoning behind this judgement, three legal arguments were considered:
- Section 65J(2) provides for two avenues through which an emoluments attachment order may be issued: 1) by means of obtaining the debtor’s written consent thereto and 2) by authorisation of the court. The conjunction “or” that separates these two methods makes it linguistically plain that an emoluments attachment order could have been obtained merely through the consent of the debtor, without an court authorisation and that such an issued “order” may be executed “as if it were a court judgement” in terms of section 65J(5). It is not difficult to imagine the abuse that a judicially unsanctioned method of execution will lead to when vulnerable, unsophisticated or illiterate debtors are involved;
- Cameron J wrote that by not insisting on judicial oversight debtors’ constitutional right of access to court may be limited and they may also be deprived of their protection against arbitrary deprivation of property in terms of section 25 of the Constitution. Judicial oversight over the whole emoluments attachment order process will definitely alleviate these harsh effects, especially on distinctly low-income debtors’ dignity and livelihood;
- The issuing of emoluments attachment orders by either the creditor or his or her attorney in terms section 65J(1)(a) is also inconsistent with the independence of the judiciary as court would effectively act according to the dictates of judgment debtors or their attorneys. Ultimately, the clerk of the court would have the power to issue these orders instead of the court itself as section 65J(2)(a) provides for the granting of emoluments attachment orders without any court authorisation in instances where the debtor has consented thereto in writing.
The western Cape High Court and Constitutional Court have duly stepped up to their public responsibility and now emolument attachment orders may only be issued by a court of law after due consideration of the facts and circumstances of the application.
In the past judgment debtors were clearly exposed to a legal loophole and in need of protection from the court rules itself. Stellenbosch’s Law Clinic should be applauded for their attention to detail and perseverance in protecting debtors’ rights across the country.
However, judicial oversight, as opposed to a mere court process, will add to further legal costs and possible delays for judgement creditors. We will have to wait and see how the courts will similarly protect the legal interests of judgement creditors, who is also entitled to access to courts and the recovery of their legal damages, when exercising their above judicial oversight.