This week’s Constitutional Court judgment to change the management of emolument attachment orders (EAOs) is regarded as a ‘100% win’ for indebted people, according to Odette Geldenhuys, a senior associate at Webber Wentzel. A Fin24 report notes Geldenhuys is the pro bono attorney for the applicants who initially brought the case in the Western Cape High Court last year.

‘The big change which we thought would be fair, is that decisions of whether a salary should be attached by an EAO now cannot be made by a clerk of the court. The court now has put that decision to the magistrate, and it also gives the magistrate two tests to look at: firstly, whether it would be just and equitable to grant the EAO and, secondly, what the debtor will be able to afford,’ she said.

The Constitutional Court backed seven of the eight rulings made by Judge Siraj Desai, of the Western Cape High Court. The only difference the Constitutional Court introduced was with section 65J(2) of the Magistrates' Court Act, which was inconsistent with the Constitution. Desai called for the legislation to be scrapped as it did not make provision for judicial oversight. However, Geldenhuys noted this would require the rewriting of legislation, which would be a time-consuming process. The Constitutional Court introduced words to the existing legislation to make it constitutional.

Full Fin24 report