In this week’s blog, Consumer Debt Support (CDS) add more value on the topic under the law “New garnishee Law” that protects workers from unlawful garnishee orders.
In 2014 a case was brought before the High Court, case number 16703/14. The applicant was THE UNIVERSITY OF STELLENBOSCH LEGAL AID CLINIC. The judgment outcome made by the Western Cape division of the High Court was 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. This ground-breaking Constitutional ConCourt garnishee ruling ‘to benefit millions’ (https://www.iol.co.za/news/crime-courts/concourt-garnishee-ruling-to-benefit-millions-2068070) judgement on 14 September 2016 have forced government to seriously look into the problems of garnishee orders and the poorly regulated law that left countless workers penniless on pay day in the past.
On 31 July 2017 pres. Jacob Zuma signed into law the Courts of Law Amendments Act, which amends the Magistrates Court Act. This is a great step forward protecting the rights of workers and prevent abuse of garnishee orders, protecting workers take home pay from exploitation.
Let us take an in-depth look at what this new amendment bill will mean for consumers. How will this new piece of legislation affect salary and wage earners’ take-home pay?
What is an EOA (Emoluments attachment order)?
The EOA is a court order issued by the court where the creditor brought an application to collect outstanding debt from the worker’s salary, by means of enforcing payments from the salary or wages and serve on the employer to comply. The creditor has every right to collect the debt when the consumer does not make payments as promised on outstanding debts and may refer it to court. When the court grants such and application against the worker’s income, it means the salary is being garnished. This document is then served to the salary officer or department and the employer forced to comply with the garnishee order.
In the past, the clerk of the court gave the consent and authorized the application for a EOA, and the orders were granted in various courts in South Africa. This meant indebted consumers had no access to the courts as it was out of their jurisdiction. The injustice was that in most cases the workers could not afford the travelling, for example to Umtata when living in Cape Town. With the new law, this will no longer be legal.
Creditors and their attorneys or debt collectors often abused their powers when garnishee orders were granted. These matters did not appear before the Magistrate, and no income and expenses investigation was done to ensure affordability. These poor workers had no constitutional rights or protection from the courts when these orders were granted and enforced on salaries or wages that left workers broke on pay day.
The grave concern of the ruling in the Western Cape High Court by Judge Siraj Desai last year was that neither could those consumers affected by those garnishees defend applications or have granted orders set aside. Consumers had no access to affordable legal counsel to defend applications, neither could they afford the cost to bring such applications before the court, or have them set aside. Garnishee Court orders granted out of the consumer’s residential jurisdiction, meant that workers could not afford the cost to defend those orders. Many workers were left penniless because all the entire take home pay was attached by garnishee orders to pay debt.
With the new law, all employees will be given a fair opportunity to defend themselves. This would mean workers now have to show the court their financial situation and the ability to pay debt by means of a garnishee order be tested before the court.
This new amendment is a great win for all consumers. The new bill is protecting the consumer/worker from abuse and investigating what the consumer can afford to pay.
What is the new law imposing?
The new law imposes a limit on the total amount that may be deducted, which may not be more than 25% of the workers’ salary or wages, regardless of the number of EAO’s against workers’ salary or wages.
Before the amendment bill there was no limit guideline to what the court could grant for outstanding debt.
The new legislation will mean that a minimum of 25% applies on basic income, which excludes additional pay (remuneration) for overtime, other allowances and commissions. It means that any additional income may not be garnished. This is really very good news.
Furthermore, the EAO must be granted by a magistrate, a clerk of the court no longer has the jurisdiction or right to grant such an order. All EAO’s orders must be granted in the worker’s/consumer’s jurisdiction (their residential address) that allows the consumer to have access to court. The sheriff of the court should serve the court papers and explain the notice for the consumer to appear in court.
The magistrate now has a duty to ensure affordability before such an order is granted.
Affordability:
- Nett income salary or wages.
- Living expenses.
- Current debt repayments.
- Debt review payment.
- Medical expenses.
- All existing EAO’s must be included as well.
Excluded from the garnishee:
- Additional income – overtime.
- Other income like commission after basic.
- Any additional income.
Add-ons in the new law:
The new legislation now prohibits any lender from enforcing unlawful and unconstitutional clauses in credit applications.
Creditors may no longer force consumers who apply for credit to sign and agree to the following clauses in their credit agreements prior to granting a loan:
- Consent to a judgment
- Consent to an instalment order
- Consent to an EAO
Anyone who fraudulently obtains or issues a judgment or installment order or EAO can be imposed a fine or be imprisoned for up to three years.
Payroll practitioners:
Payroll practitioners need to familiarise themselves with the new amendments of the ACT on EAO’s. This new law will have a major impact on how EAO’s will be managed in future. Employers will now have a duty to ensure payroll staff are familiar with the new law and help workers to understand their rights and what their employer can do in the event of any EAO’s that were granted without the employee being present in court. Companies now have to ensure the financial burden on salary and wage earners is not being abused.
(Our source IOL: https://www.iol.co.za/personal-finance/new-law-limits-garnishee-orders-to-25-of-wages-11249421)
Debt Review:
A consumer has the right to apply for debt review and include debt, even where the creditor has instructed an attorney or debt collector to collect the debt and the summons has not been issued.
Here at CDS we often hear of consumers being misinformed by debt collectors, telling them the debt can’t be included into debt review, payment arrangement must be made with them directly.
Consumers should familiarise themselves with the new garnishee law and understand what can happen when they no longer can pay a creditor.
Here at CDS, we do a complete assessment on each consumers application on merit. We look into the debt and living expenses. We know when an account can be included and advise the consumer whether a debt can be excluded. You can hit this link and make contact with us https://www.debtcenter.co.za .One of our debt management specialists will call you. So, in short, where a summons has not been issued, the debt may be included into debt review.
In conclusion:
On 31 July 2017, the law has been amended for a good reason. There was a great need for legal intervention nationally to give the poor a voice in the courts when they can’t pay their creditors. It is by good time that consumers are protected from exploitation when applying for credit.
