University of Stellenbosch Legal Aid Clinic v Minister of Justice and Correctional Services : proactive judicial application of principle 3 of the G20 High Level Principles of Financial Consumer Protection

Abstract

Following the global financial crisis of 2008 and the role played by so-called “easy credit” in the build-up to the crisis, there has been a renewed focus globally on ensuring financial stability by inter alia obliging credit providers to act more responsibly in their dealings with consumers. One of the key areas on which emphasis has been placed by the global community has been to ensure that financial consumers are treated fairly in their dealings with credit providers. Such renewed focus is clear when one looks at documents like the G20 High-Level Principles of Financial Consumer Protection, an agreement aimed at establishing a communal effort at promoting financial consumer protection amongst the members of the G20. Whilst South Africa has been at the forefront of the above by promulgating numerous pieces of legislation aimed at protecting financial consumers, numerous areas of law remain open to exploitation by unscrupulous actors within the credit sphere. The emoluments attachment order is a mechanism contained in the Magistrates’ Courts Act whereby debt may be collected by means of obliging the employer of a debtor to subtract a periodic amount from the emoluments of the debtor in order to repay the creditor. Following years of abuse of this mechanism, the matter was brought to the attention of the Constitutional Court, which issued a landmark ruling regarding the enforcement and application of this mechanism. The aim of this dissertation is therefore to critically analyse the decision reached by the court in University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and Others and its impact on the issuing of emoluments attachment orders. This dissertation will also discuss principle 3 of G20 High Level Principles of Financial Consumer Protection and will ask whether the decision reached by the court in the Stellenbosch decision amounted to judicial application of this international agreement.