The Black Sash congratulates the University of Stellenbosch Legal Aid Clinic, the 15 individual applicants, most of whom reside in Stellenbosch, the Legal Resources Centre and the South African Human Rights on the successful outcome of the Flemix case (Case No: 16703/14) in the Western Cape Division, Cape Town of the High Court of South Africa yesterday.
We are delighted that Judge Desai declared the EAO against the 15 individual applicants unlawful, invalid and of no force and effect. We also heartened by the Minister of Justice and Correctional Services not to oppose the court's decision and the relief sought by the applicants. The judgment has a direct bearing for millions of social grant beneficiaries who currently experience unauthorised, unlawful, fraudulent and immoral deductions from their SASSA branded bank accounts by unscrupulous micro credit loan sharks, often without affordability tests. These deductions infringes on the human dignity of beneficiaries.
The Desai judgment is significant and precedent setting in that it ruled that the enforcement of any credit agreements to which the National Credit Act of 2005 applies, section 45 of the Magistrate Court Act (MCA) does not permit a debtor to give consent in writing to an emolument attachment order (EAO) outside of the jurisdiction where the debtor resides or is employed.
Secondly the process of issuing an EAO requires an evaluation of the amount of money to be attached per month compared to the amount needed by the debtor to support herself and her family. International law places a duty on the South African government to protect citizens against the abuse of human rights by business enterprises operating in their territory. It has a duty to protect victims with an effective remedy where abuses occur.
Judge Desai said the MCA is deficient in that it fails to protect debtors as EAOs are issued by a clerk of the court with judicial oversight. Workers (debtors) are not given an opportunity to make representation before an EAO is issued. Furthermore when an excessive portion of a debtor's earnings is attached, the remedy provided by the MCA is ineffective, particularly when indigent debtors consent to the jurisdiction of distant court. The Flemix case also surfaced the unethical practice of "forum shopping" of courts to secure emolument attachment orders.