Ruling on Garnishee orders is a victory for the poor

The recent High Court ruling in which garnishee orders against 15 consumers were declared unlawful and was a victory for the poor.

Cape Town, Western Cape, South Africa

Lisinda Bailey and Siphokazi Siwayi are two of the fifteen applicants that with help from Legal Aid Clinic of Stellenbosch University recently won a court case against garnishee orders. The Western Cape High Court that declared deductions taken from employees’ salaries for emolument attachment orders (EAOs) as illegal and invalid. According to the Director of the Legal Aid Clinic, Kruger van der Walt, emolument attachment orders refer to court orders whereby a debt is subtracted directly from the salary before the salary is paid. Van der Walt said that they took up the case together with 16 applicants after getting a lot of complaints from farmworkers, workers at the university and around Stellenbosch about garnishee orders. We met with Lisinda and Siphokazi at their houses in Stellenbosch. They live in Idas Valley and Khayamandi respectively.

Lisinda- Breadwinner, poverty, depression and victory

Lusinda reading her payslip

Lisinda a widow and a mother of two told us that her problems started when she was working as a cleaner at the Institute for Wine Biotechnology at the University of Stellenbosch. “ I started working there in 1995 but because my husband was not working I got into debt. I borrowed money to buy food, pay rent and buy clothes”, said Bailey.

Because of debts, Lisinda took a voluntary retrenchment package in 2008. “ The university’s human resource office was aware of my financial situation, but they did not help”. One professor from the department asked her to continue working at the university because Lisinda was “ good at what she was doing”. Lisinda worked as a casual for a year before she was employed full-time by the department of Chemistry in 2010. “ I was still the breadwinner at home and my husband was still not working”.

Lusinda Bailey outside her house in Idas Valley

According to Lisinda she was blacklisted and she could not lend money but she went to SA Multi-loans to try her luck. “To my disbelief, I got a loan of R6500 and I was supposed to pay it back in six months”. After two months she got a call that she qualifies for a top-up loan. “ I got a top-up loan of R4300 and after paying for two months again I got a call that I qualify for another top-up”. It was after she lapsed on payment that she got a garnishee order of R2663.23 cent a month”. Lisinda told Elitsha that she could not afford to look after her family after that. She went into deep depression and she told Elitsha that she even considered suicide. “ I had no food, no transport money and I stopped going to work. I also had to provide for my family”. Lisinda is a mother of two- a 21-year-old son and a 15 year old daughter. Her husband, a self-employed mechanic, Ferdinand Bailey died of heart attack in April 2012.

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Siphokazi –Breadwinner- signed without knowledge and victory

Siphokazi Siwayi shares her asbestos sheet built two roomed house with her brother who has recently been financially excluded at the Cape Peninsula University of Technology (CPUT). Siphokazi (31) is responsible for her siblings, three sisters, four brothers and their children. She is the eldest in the family and she has to send money to her mother who is staying with her siblings in Mqanduli, in the Eastern Cape. Her family lives on child grants and remittances from her.

She took a loan of R1500 from SA Multiloan in 2008 to attend and contribute towards a funeral of her cousin’s. At the time she was working at Spar and was earning R2,500 a month as a baker. When she could not pay the lender she was garnisheed without her knowledge. “A white man came to my workplace and told me that I had to sign forms to pay R725 a month. I told him that I would not be able to afford that amount of money. He then said I needed to sign that I cannot afford it”. Siwayi says that the following month an amount of R725 was missing and when she enquired with her manager she was told that she was garnisheed.

Siphokazi outside her house in Watergang in Khayamandi

Court case

According to Kruger Van der Walt from the Legal Aid Clinic most of the people and the people that they deal with sign garnishee orders without their knowledge. “ Part of the reason we won the case it was because the applicants signed the emolument attachment orders without knowledge of what they were doing and under false pretences”.

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Garnishee orders are common in South Africa and according to one of the respondents in the case, Flemix & Associated Incoporated Attorneys, which specialises in debt collection and provides such services to forty-five credit providers. It has “150 000 active cases” and the total value of the books that it collects is over R1,5 billion.

Lisinda told Elitsha that she owes debtors over R 100 000. She now works for a cleaning company as a supervisor. Siwayi on the other hand now works at a supermarket and says that with the help of the Legal Aid Clinic she now pays a monthly instalment of R200 instead of the R725.

Van der Walt says that they won the case because the emolument attachment orders were done illegally and this meant that the applicants are entitled to be reimbursed for the money that was subtracted from their salaries.

The court ruling has been appealed by the respondents and Van der Walt says that they, on the other hand, have asked for confirmation of the validity of the judgment at the Constitutional Court. They hope that the affirmation and the appeal will be heard at the same time for a final ruling.

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