In early July 2015 the High Court declared aspects of a long-established but often abused debt collecting process unlawful, with potential wide-ranging consequences. It could render hundreds of thousands of salary attachment orders unenforceable. In our recent blog post we highlighted the findings of what is known as the Desai Judgment (after the judge who wrote it).

On 20 July 2015 the Department of Justice and Constitutional Development announced that it is working on an amendment Bill aimed at amending the Magistrates’ Courts Act 1944 (MCA) to address the shortcomings identified in the Desai Judgment.

The two central findings of the judgment were the following:

  • A judgment debtor cannot consent in writing to the jurisdiction of a court for the enforcement process other than one in which the judgment creditor resides, is employed or conducts business (Section 45 of the MCA).
  • The Magistrates’ Courts Act is unconstitutional to the extent that it does not provide for judicial oversight in issuing emolument attachment orders (garnishee orders), to ensure affordability and informed consent (Section 65J of the MCA).

We expect that the Bill will amend these sections.

The Department has urged creditors and their attorneys countrywide “to take this judgment seriously” and to ensure that debt collecting judgments and resultant garnishee orders are obtained within the limits laid down by that judgment.

The judgment has to be finally confirmed or changed by the Constitutional Court.