Significant legislative changes to take note of

On 13 September 2016 the South African Constitutional Court delivered its landmark judgment in University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and Others (CCT127/15) [2016] ZACC 32. While this judgment has been valuable for many reasons, its most important impact has been its directive to amend the wording of the Magistrate’s Court Act 32 of 1944, to curb the abuses that had been so prevalent in the Emoluments Attachment Order (“EAO”) landscape up to that point. In no small part due to the work of the Stellenbosch University Law Clinic (then known as the Legal Aid Clinic), the Courts of Law Amendment Bill (B8-2016) was introduced and passed by the National Assembly on 6 June 2017. After having been signed by the President on 31 July 2017, it became the Courts of Law Amendment Act 7 of 2017. Since that date, it has however been a slow grind to get to the point where a commencement date for the Act was announced. The Clinic is delighted to note that the Courts of Law Amendment Act has now been promulgated and that the Act is in effect from 1 August 2018. This has resulted in amendments to the Magistrate’s Court Act that will undoubtedly bring much needed relief to thousands of distressed and victimized debtors.

The main amendments and additions to the Magistrate’s Court Act are:

• Allowance for the discharge of judgements in circumstances where the debt, legal interest and costs have been paid in full.
• Outlawing consents to extend jurisdictions to courts who have no jurisdiction over the debtor, thereby counteracting the nefarious forum shopping tactics used by unscrupulous creditors.
• Additional safeguards that have to be in place for debtors to enter admissions of liability and consent to judgments.
• Extending the scope of factors which the court has to take into consideration in awarding EAOs to determine whether such an order would be “just and equitable”.
• Limiting the total instalment amount which can be deducted in terms of one or more EAOs to 25% of the debtor’s basic gross monthly salary.

For more information on the effects of this amendment, or the SU Law Clinic, visit sulawclinic.co.za or liaise with Mr Stephan van der Merwe, Senior Attorney and Notary Public at the SU Law Clinic at 021 808 3600 / 2707.