Garnishee victory for blue-collar workers

09 July 2015 - 02:26 By Aphiwe Deklerk

Parts of the law used to obtain garnishee orders are unconstitutional, the Cape Town High Court ruled yesterday. The judgment followed a class action by 15 blue-collar employees who took 14 micro-lenders to court for allegedly deceiving court clerks into issuing emolument attachment orders (EAOs, also known as garnishee orders).Judge Siraj Desai ruled that the garnishee orders against the group were unlawful, invalid and "of no force or effect".Sections of the Magistrates' Court Act relied on in issuing garnishee orders were inconsistent with the constitution. They were "invalid to the extent that they fail to provide for judicial oversight over the issuing of an emolument attachment order against a judg ment debtor".Judge Desai said the act provided that, following an inquiry by a magistrate into a debtor's financial position, the court may make an order it deemed "just and equitable".But in respect of the applicants - security guards, cleaners and farmworkers from Stellenbosch represented by the Stellenbosch University Legal Aid Clinic - the process was not properly followed."The clerk of the court issued EAOs attaching their earnings without any evaluation of their ability to afford the deductions to be made from their salaries and without deciding whether or not the issuing of an EAO itself would be just and equitable," he said.He added that the whole process of obtaining a garnishee order was driven by creditors without any judicial oversight.Labour law commentator Michael Bagraim said the judgment meant a court order could now not be made against a defaulter unless a magistrate applied their mind to whether they could afford to pay.He said many people did not understand why they received so little in their pay packets.Economic Opportunities MEC Alan Winde welcomed the judgement, saying the provincial government condemned the exploitation of farmworkers."Irresponsible lenders who take advantage of residents need to be brought to book."OUR CONSUMER COLUMNIST WENDY KNOWLER EXPLAINS WHAT THIS RULING MEANS: Read more here

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