‘Most’ of SA’s garnishee orders in the balance in court case

NEARLY two million emolument attachment orders could be affected when the Constitutional Court rules in a case brought by Stellenbosch University’s Legal Aid Clinic that challenges the process of granting them.

Lawyers for the clinic this week urged the court to declare the section of the Magistrates’ Courts Act dealing with the attachment orders unconstitutional and to set aside all orders that had been issued in the wrong jurisdiction or signed off by a clerk of the court instead of a magistrate.

Clark Gardner, CEO of Summit Financial Partners, estimates as many as 2.5 million emolument attachment orders are in effect and that around 1.9 million of them could be affected by the case’s outcome.

The clinic first won a ruling in the High Court in Cape Town last year that 15 attachment orders issued against its clients were “unlawful, invalid and of no force and effect”.

Judge Siraj Desai hit out at debtcollecting law firm Flemix & Associates for shopping around for mag- istrate’s courts that would sign off on the orders despite being far from the home or place of work of the debtor — which makes it difficult for a debtor to challenge the terms of an order.

He also criticised the practice of using clerks to issue the orders rather than magistrates, which meant there was no judicial oversight of the process. In July 2014, a change to the act prohibited clerks from issuing the attachment orders.

Although the application dealt with only 15 of Flemix’s 150 000 attachment order cases, Desai said it was “safe to assume that thousands, if not tens of thousands” of orders had been unlawfully obtained.

Flemix’s lawyers had suggested the Legal Aid Clinic went to great lengths to “hand-pick” its 15 clients to present a grim but inaccurate picture.

When Flemix repeated this argument in the Constitutional Court this week, Justice Edwin Cameron asked how many of the 150 000 cases had been obtained in the wrong juris- diction. Flemix could not respond.

Flemix’s legal team contends the Magistrates’ Court Act does not have to be changed as it already includes the necessary safeguards for debtors. The Association of Debt Recovery Agents, a respondent in the case, says requiring a magistrate to issue attachment orders would cause a twoto three-year delay because of the already overloaded court system. It also argues that curbs on such orders would allow informal, more unscrupulous, moneylenders to flourish.