Judge to rule on ‘garnishee orders’ validity today

Judgment in a matter that could have serious implications for the way in which outstanding unsecured credit is collected is expected in the Western Cape High Court today.

Judge Siraj Desai, who in February heard arguments from the University of Stellenbosch’s Legal Aid Clinic as to why sections of the Magistrate’s Court Act should be declared unconstitutional, will today hand down judgment.

The Act deals with the granting of emoluments attachment orders (EAO) – salary attachment orders that are used by lenders to collect on unsecured credit granted to errant debtors.

The clinic, alongside challenging the Act, also wants to have specific EAOs declared null and void. Together with 15 consumers, the clinic brought the application against 13 credit providers and the law firm that facilitated the said EAOs, Flemix & Associates.

Arguing that EAOs are widely abused by reckless lenders, the clinic wants to have certain sections of the Act declared unconstitutional in order to afford greater protection to often financially illiterate consumers.

Among other changes, it would like to see the Act insist on the oversight of a magistrate when these orders are granted. It argues that failing to subject EAOs to careful inspection by a magistrate, and instead allowing often ill-informed clerks of court to process them, denies consumers their rights to access to justice.

Businessperson Wendy Appelbaum is expected in court today.

The justice department, meanwhile, in February argued that courts are already overburdened and cannot be expected to provide magisterial oversight to every EAO – an argument that Desai described as “limp”. – Moneyweb