Report legal team, says advocate in landmark garnishee case

A group of creditors used “trickery” to have emolument attachment orders served on unsuspecting consumers, attorney Anton Katz SC told the court on Monday.

“Under no circumstance can this be allowed in a court of law. We should be appalled by some of the evidence in this matter,” he said.

Katz is appearing on behalf of 15 consumers in the Western Cape high court this week in a bid to have their emolument attachment orders (EAOs) declared illegal on the grounds that they are unconstitutional.

EAOs, commonly known as “garnishee orders”, are court orders that force an employer to deduct money owed to a creditor from a person’s monthly salary.

The action was brought by the University of Stellenbosch’s Legal Aid Clinic (LAC) for the 15 consumers against 13 credit providers and Flemix & Associates, the law firm that facilitated the EAOs.

The list of respondents in the matter include the minister of justice and correctional services, the minister of trade and industry and the national credit regulator as the class action is also intended to rewrite the law on EAOs.

Non-compliance
In a packed courtroom on Monday, Katz requested Judge Siraj Desai to report the legal team representing the creditors to the Law Society for non-compliance with the Magistrates’ Court Act and unfair practices.

“In the Flemix respondent’s responding affidavits, it is clear Flemix chose the courts in Beaufort West, Kimberley, Hankey and Johannesburg. They also give an explanation as to why they do it … Attorney Ms Jordaan says Stellenbosch Magistrate’s Court made irrational requirements which according to her compromised their access to justice. So instead, they went to another court outside the jurisdiction,” he said.

Katz said if there was a serious problem with the court in Stellenbosch, the creditors could have lodged an application in the high court to have the issue resolved.

“Section 45 of the Act is very clear on the jurisdiction constraints. How is it fair practice and within the Act’s requirements for someone from Stellenbosch to have an emoluments attachment order from a clerk of the court in Kimberley?” he said.


Katz also told the court about one of the 15 consumers who is a single mother struggling to cope financially.

“The deductions were almost 50% of her monthly wages … The facts of the other applicants are just as bad. Under no circumstance can this be allowed in a court of law,” he said.

Proper judicial oversight
Katz argued in detail about the Magistrates’ Court Act and the importance of having proper judicial oversight. He argued that clerks of the court are issuing the orders without the magistrate having looked at the whole picture.

“It is not for the clerk of the court, but for the magistrate who will have to consider all the factors of the case to make a ruling.”

Referring to consumers signing consent to payment forms without knowing what they were signing, Katz said, “I would also question the legality of the consent documents because I find it hard to believe that anyone would waive their rights to put food on the table for them and their children. It is a violation of someone’s right to dignity.”

Commenting on the submission to have a magistrate deal with the EAOs, Judge Desai said it was still important to consider the practicality of implementing it.

“This would require more magistrates to be employed or for the already heavy workload to increase, which is not reasonable. These are things that need to be addressed during this hearing,” he said.

Katz and his legal team are expected to continue argument in court on Tuesday.

This article was originally published on GroundUp.

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever. But it comes at a cost. Advertisers are cancelling campaigns, and our live events have come to an abrupt halt. Our income has been slashed.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years. We’ve survived thanks to the support of our readers, we will need you to help us get through this.

To help us ensure another 35 future years of fiercely independent journalism, please subscribe.

Advertising

Coalition politics and law: The fight over Tshwane

With coalition politics on the rise, particularly in local government, this kind of court case is likely to become more common

High court declares Dudu Myeni delinquent

Disgraced former SAA chairperson Dudu Myeni has been declared a delinquent director by the...

SANDF inquiry clears soldiers of the death of Collins Khosa

The board of inquiry also found that it was Khosa and his brother-in-law Thabiso Muvhango who caused the altercation with the defence force members

No back to school for teachers just yet

Last week the basic education minister was adamant that teachers will return to school on May 25, but some provinces say not all Covid-19 measures are in place to prevent its spread
Advertising

Press Releases

Openview, now powered by two million homes

The future of free-to-air satellite TV is celebrating having two million viewers by giving away two homes worth R2-million

Road to recovery for the tourism sector: The South African perspective

The best-case scenario is that South Africa's tourism sector’s recovery will only begin in earnest towards the end of this year

What Africa can learn from Cuba in combating the Covid-19 pandemic

Africa should abandon the neoliberal path to be able to deal with Covid-19 and other health system challenges likely to emerge in future

Coexisting with Covid-19: Saving lives and the economy in India

A staggered exit from the lockdown accompanied by stepped-up testing to cover every district is necessary for India right now

Covid-19: Eased lockdown and rule of law Webinar

If you are arrested and fined in lockdown, you do get a criminal record if you pay the admission of guilt fine

Covid-19 and Frontline Workers

Who is caring for the healthcare workers? 'Working together is how we are going to get through this. It’s not just a marathon, it’s a relay'.

PPS webinar Part 2: Small business, big risk

The risks that businesses face and how they can be dealt with are something all business owners should be well acquainted with

Call for applications for the position of GCRO executive director

The Gauteng City-Region Observatory is seeking to appoint a high-calibre researcher and manager to be the executive director and to lead it

The best local and international journalism

handpicked and in your inbox every weekday