In a groundbreaking judgment handed down on Tuesday 13 September 2016, the Constitutional Court found that an Emoluments Attachment Orders (EAO) require judicial oversight to determine if they are just and equitable, and if the amount is appropriate.
A garnishee order or EAO is a court order that compels a debtor’s employer to pay his or 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, as it allowed clerks of the court to issue EAO’s without the requirement of documentation, such as consent forms from a debtor.
This judgment follows a ruling in the Western Cape High Court handed down last year on 8 July 2015, 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. This has however not been a smooth process at courts, causing some problems with courts that did not share the same point of view on the matter.
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, arguing that certain specified words in section 65J(2) of the Magistrates’ Courts Act are inconsistent with the Constitution and invalid.
The judgment can be seen as a victory for the poor as the judgment, although prospective, sets a precedent going forward. An order cannot be made without a presiding officer such as a magistrate or judge.