University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice And Correctional Services and Others (16703/14) [2015] ZAWCHC 99

17th July 2015

University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice And Correctional Services and Others (16703/14) [2015] ZAWCHC 99

[1] The facts underpinning this application relate to the debt collection procedure employed by the micro-lending industry and give rise to significant disquiet, if not alarm.


[2] The emoluments attachment order (EAO) contemplated in section 65J of the Magistrates’ Court Act 32 of 1944 (The MCA) permits the attachment of a debtor’s earnings and obliges his or her employer (the garnishee) to pay out of such earnings specific instalments to the judgment creditor or his or her attorney. The instalments are to be paid until the judgment debt and legal costs are paid in full.


[3] The fact that the debtor is a low income earner is immaterial. His employer is compelled to deduct from his monthly salary or weekly wages the amount specified in the EAO and pay it to the creditor for the debts allegedly owed by him. There is no statutory limit on the amount which may be deducted from the earnings of a debtor in terms of an EAO. Nor is there a limit on the number of EAOs which may be granted against a particular debtor.


[4] The problems with regard to the latter omissions are graphically illustrated in these proceedings. In respect of the Second Applicant herein, an EAO was granted for more than half his salary. The Fourth Applicant was even less fortunate. The clerk of the court issued three EAOs on the same day attaching almost her entire salary.


[5] Section 65A of the MCA provides that following an enquiry by a magistrate into a debtor’s financial position, the Court may make such order as it deems “just and equitable”. However, in respect of the present applicants, 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. The whole process of obtaining the EAOs was driven by the creditors without any judicial oversight whatsoever.