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MEDIA STATEMENT: Constitutional Court Judgment in: University of Stellenbosch Legal Aid Clinic and Others v The Minister of Justice and Correctional Services and Others CCT 127/15

Monday, 12 September 16

Attention Editors:

On Tuesday, 13 September 2016 at 10h00 the Constitutional Court will hand down judgment in University of Stellenbosch Legal Aid Clinic and Others v The Minister of Justice and Correctional Services and Others CCT 127/15.  The South African Human Rights Commission has participated as amicus curiae (friend of the court) in the matter.

Background

The matter was brought by a group of low income farmworkers living in Stellenbosch who had fallen into arrears, and had their salaries attached by the micro lenders through a debt collection mechanism known as emoluments attachment orders (EAOs) to the value of R1.6 billion.

In July 2015 the Western Cape High Court found that certain sections of the Magistrates’ Court Act 32 of 1944 to be inconsistent with the Constitution of the Republic of South Africa Act (1996). Section 65J of the Magistrates' Court Act 32 of 1944 permits the attachment of a debtor's earnings and obliges his employer (the garnishee) to pay out of such earnings specific instalments to the judgment creditor or his attorney.  The WC High court found this to be invalid to the extent that they fail to provide for judicial oversight over the issuing of an emolument attachment order against a judgment debtor.

Further, it had been held that in proceedings brought by a creditor for the enforcement of any credit agreement to which the National Credit Act 34 of 2005 applies, section 45 of the Magistrates' Courts Act does not permit a debtor to consent in writing to the jurisdiction of a magistrates' court outside that that in which that debtor resides or is employed.

Striking a constitutionally compliant balance

The central question that the Constitutional Court had to decide was whether this form of debt collection strikes a constitutionally compliant balance between the rights of creditors to recover debts and the rights of debtors who are subject to such processes.  The applicants, the University of Stellenbosch Legal Aid Clinic and various individuals, supported the judgment of the court a quo, and requested that the order be confirmed by the Constitutional Court. Further, they opposed the application for leave to appeal by Flemix and Association of Debt Recovery Agents (ADRA).

The nub of the concern was the fact that the whole process of obtaining the EAOs was without judicial oversight.

The Commission

The South African Human Rights Commission (the Commission) is a state institution established in terms of Chapter 9 of the Constitution of the Republic of South Africa, 1996 (the Constitution) to support constitutional democracy.  It is mandated in terms of section 184 of the Constitution to promote the protection, development, and attainment of human rights, including the right of access to justice; in terms of section 34 of the Constitution; and to monitor and assess the observance of such rights within the Republic of South Africa.

Amicus curiae

Once again, the Commission has participated as amicus curiae (friend of the court) in the matter before the Constitutional Court as the case raises important questions relating to the protection of the human rights and the dignity of marginalised members of our society.  The Commission’s intervention is an attempt to highlight the egregious impact on the lives of people affected by EAOs obtained by unscrupulous micro lenders.   

Access to Justice

Access to Justice is one of the seven focus areas identified by the South African Human Rights Commission in order to effectively fulfil its mandate of promoting, protecting and monitoring the realisation and attainment of Human Rights in South Africa.

Access to justice is a leverage right – a right that can be used to unlock all other constitutional rights.  Access to justice is broader than the narrow legalistic perspective which views access to justice as simply being able to physically access a court of law. In its broader interpretation of the right of access to justice, the Commission views access to justice as being tied to social justice, gender justice, economic justice and environmental justice.

Access to justice, although it is an indispensable right, which upholds human dignity and assist in improving, facilitating, and expanding access to law and justice, has remained an illusory dream for the majority of the population in the country. The oft-referred, triple challenges of poverty, unemployment, and inequality are the greatest barriers of access to justice.

The Commission, admitted as a friend of the court, argued that the Constitutional court should confirm the declaration of constitutional invalidity of the sections 65J (2) (b) (i) and 65J (2) (b) (ii) of the MCA by Judge Desai.

International standards

As amicus curiae in the matter before the WC High Court in 2015, the Commission argued that states have a duty to protect against and remedy human rights violations committed on their territory by private parties by creating effective judicial remedies to prevent or punish the infringement of a debtor’s rights.  Gleaning from international law, the Commission submitted that courts must be vested with supervisory oversight powers prior to an EAO being granted. This is because any deprivation of wages/income had a detrimental effect on a number of human rights.

The Commission also argued that other jurisdictions have protective mechanisms, which place restrictions in the issuance of EAOs. In addition, in other jurisdictions the evaluation of the debtor’s circumstances and needs are considered at the time that the EAO is imposed.  Thus, it ensures that a portion of a debtor’s income is protected for essentials such as rent, food, electricity, and water.  This therefore removes the onerous requirement for a debtor, who is already facing financial woes, to return to court to review or challenge the EAO.

The Commission is confident that the Constitutional Court’s judgment, to be handed down on the 13th September 2016, will strike the constitutionally appropriate balance between the rights of creditors to recover debts through the judicial system, and the protection of the economic rights of debtors.  The Court will clarify the law, which the Commission believes will provide guidance to the courts and ameliorate the human rights violations that are currently occurring.

The Commission notes that the Ministry of Justice and Correctional Services through the Department of Justice and Constitutional Development has introduced the Courts of Law Amendment Bill to Parliament, which seeks to address and remedy abuses of the EAO system.  The Commission applauds both the Department of Justice and Constitutional Development and Parliament for this legislative intervention and urges Parliament to accelerate this process of legislative reform to ameliorate the plight of the poor, vulnerable and marginalised who are subject to such egregious abuses in the EAO system.

Issued by The South African Human Rights Commission

For more information:

Gail Smith – Spokesperson, This email address is being protected from spambots. You need JavaScript enabled to view it. (011) 877 3600

For more information contact Gushwell Brooks – Communications co-ordinator, This email address is being protected from spambots. You need JavaScript enabled to view it. (011) 877 3600

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