Emoluments attachment orders : in light of the widespread fraudulent and undesirable practices in emoluments attachment orders should this debt collection mechanism continue to exist?.

Abstract

With an estimated percentage of 12.2 percent of South Africa‟s public sector with Emoluments Attachment Orders (EAOs) against their salaries, it is evident that this debt collection mechanism is popular in South Africa.1This dissertation analyses EAOs in comparison to other debt collection mechanisms that are currently employed in South Africa with the aim of reforming an effective debt collection mechanism that will adequately strike a balance between the rights of a creditor as well as those of a debtor in so far as access to and the granting of credit is concerned. The first half of this dissertation critically analyses debt collection mechanisms such as warrants of execution, and demonstrates that none of the current mechanisms are as effective as EAOs. The second half of this dissertation will critically analyse EAOs in light of the reported abuses and discrepancies. Significantly, this dissertation critically evaluates the watershed case of The University of Stellenbosch Legal Aid Clinic and Others v The Minister of Justice and Correctional Services and Others and the implications of this judgment on EAOs.2 Moreover, and based on foreign best practice and the rampant abuse in South Africa, this research will suggest that EAOs require far more scrutiny and as a matter of urgency require a limit to be placed on the maximum that may be deducted from a debtor‟s salary. Ultimately, this dissertation demonstrates that given the impact that abolishing EAOs would have on our economy and the debt collection in its entirety, EAOs should remain in existence. However, in so remaining, they must undergo intense reform urgently.