Emoluments attachment orders in the South African Law

Abstract

Being a credit active consumer in South Africa requires a lot of responsibility. Credit providers offer loans to debtors and often employ unjust methods in an attempt to recover the outstanding debt. The mechanism applicable in this research, which credit providers use to recover the debt, is in fact the emoluments attachment order. It is my finding that legislation needs to be amended to abolish the abuse in the sense that: - The order must be obtained in a court where the debtor resides or works. - The court should have a discretion to grant the emoluments attachment order. It will make provision for judicial oversight and that the order be queried at the application stage of such an order, and not only once the order has already been granted. - A cap should be placed upon the amount deductible, which will ensure that the number of emoluments attachment orders against the debtor s salary is appropriate to the extent that the debtor will still have sufficient means to maintain himself and the dependants. The implication of these amendments would ensure that the abuse of the process of emoluments attachment orders are abolished. It is also important to note that debtors still need to act in a responsible manner. These amendments would also ensure that creditors are protected to the extent that they follow the correct procedures in order to collect the debt owed to them. It is my submission that amendments by the legislature is the only way to ensure that the abuse is curbed and to establish a balance between the rights of the creditor and the rights of the debtor.