17 December 2018


Concourt protects workers from crippling garnishee orders


Semphete Correspondent


16 September 2016

It will no longer be easy for creditors to impose a garnishee order on your salary and wages, thanks to a Constitutional Court judgement that put strict requirements for such an order to be issued.

This week the Concourt ruled that the Emolument Attachment Order (EAO) - popularly known as garnishee order - would be issued only after proper judicial oversight. This means a magistrate has to oversee that process and a garnishee order can only be issued by a court in an area where an indebted person lives.

The ruling is effective with immediate effect. The Tuesday judgement by the highest court on constitutional matters in the country was immediately described as victory for the poor, as many highly indebted people affected by garnishee orders were low-paid workers.

The Concourt judgement follows an application by the Legal Aid Clinic of the University of Stellenbosch on behalf of 16 Western Cape farmworkers whose monies were deducted to pay off loans, but were left with too little to live on. One of the applicants, Stellenbosch farmworker Vusumzi Xekhetwana, would take home only about R1 200 after garnishee order deductions. Because he is the family's sole breadwinner, this amount was not enough to take care of the daily needs. Court papers showed that Xekhetwana's signature was forged on some of the documents that the creditor used to obtain a garnishee order against him.

In its judgement the Concourt said a court of law needs to ensure that garnishee orders are just, equitable and of an appropriate and fair amount. The debtor must also first be warned through a registered letter that they have 10 days to pay the debt if they want to avoid the granting of a garnishee order.

The South African Human Rights Commission has welcomed the ruling, saying it provides much-needed clarity on the matter. Spokesperson for the Commission, Gail Smith, said it was a victory for access to justice for ordinary working people "because it makes space for judicial oversight before these [garnishee orders] can be issued. So, going forward people who don't have access to expensive lawyers can trust that the court will be looking out for them".

The South African Communist Party (SACP) welcomed the Constitutional Court judgement.
"As part of its financial sector campaign aimed at transforming the industry, the SACP has campaigned tirelessly against the abuse of garnishee orders," the party said.

"The judgement constitutes an important victory for workers across the board. The financial sector, particularly unscrupulous credit dealers, or creditors and financial services providers of other sorts, were abusing the court system".

The SACP said in many cases the abuse of the court system "was not without the collusion of their inside job lackeys, who served at the pleasure of the money dealers or so-called financial services providers paying themselves from workers wages willy-nilly, abusing garnishee orders as a means of payment without any regard to the impact on workers' take home pay, workers and their dependents".