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Attachment orders Declared Unconstitutional
Attachment Orders Declared Unconstitutional Provided by Cliffe Dekker Hofmeyr By Preshan Singh-Dhulam Topics: Consumer Protection | Contract Law | Criminal Law 31 Jul 2015 In a judgment delivered on 8 July 2015 in the case of The University of Stellenbosch and 15 Others v The Minister of Justice and Correctional Services and 17 Others(Case Number 16703/14), the court ruled that in proceedings brought by a creditor for the enforcement of any credit agreement to which the National Credit Act, No 34 of 2005 applies, s45 of the Magistrates’ Court Act, No 32 of 1944 (Magistrates’ Court Act) does not permit a debtor to consent in writing to the jurisdiction of a Magistrate’s Court other than one in which that debtor resides or is employed. The court further ruled that s65J(2)(b)(i) and s65J(2)(b)(ii) of the Magistrates’ Court Act are inconsistent with the Constitution of the Republic of South Africa, 1996 and invalid to the extent that they fail to provide for judicial oversight over the issuing of an emolument attachment order against a judgment debtor. The case involved 15 individual applicants who were all granted loans, often at interest rates of 60% per annum from a ‘loan originator’ who previously operated in the Stellenbosch area. The credit providers granted the loans without taking reasonable steps to assess the applicants’ existing financial means and obligations prior to concluding the credit agreements. The individual applicants were granted loans with the repayments at times exceeding 50% of their monthly income. The applicants resided and were employed in Stellenbosch but judgments were granted and emolument attachment orders issued in Kimberly, Wynberg and elsewhere. The credit providers alleged that the applicants consented to such jurisdiction in terms of s45 of the Magistrates’ Court Act which provides that in certain circumstances parties may consent to the jurisdiction of a court to determine any action that is otherwise beyond its jurisdiction. However, s65J(1)(a) of the Magistrates’ Court Act provides that an emolument attachment order must be issued from the court of the district that the employer of the judgement debtor resides, carries on business or is employed. The court held that s45 and s65J of the Magistrates’ Court Act cannot be read together, in that the narrow provisions of s65J cannot be reconciled with the broad provisions of s45. Section 65J is specifically intended to cover emolument attachment orders and it is a well-established principle in law that where two provisions are contradictory, the provision that is specific trumps the provision that is general. Accordingly, s65J trumps s45 and the court declared the emolument attachment orders unlawful, invalid and of no force and effect. The emolument attachment orders were issued by the clerk of the court without any judicial oversight nor any evaluation of the applicants’ ability to afford the deductions from their salaries. The emolument attachment orders were also made without deciding whether or not the issuing of the emolument attachment orders would be just and equitable. South African legislation does not provide any statutory limit on the number of emolument attachment orders which may be granted against a debtor or the amount which may be deducted from his salary. The ability of people to earn an income and support themselves and their families is central to the right to human dignity as contained in s10 of the Constitution. For this reason, many foreign jurisdictions such as the United States of America, Germany, Australia, Rwanda, England and Wales limit the amount of income that may be attached depending on the amount of the debtor’s salary and/or the amount of money that is required by a debtor to support himself. The court considered a number of Constitutional Court judgments which emphasised the general principle that there must be judicial oversight where an applicant seeks an order to execute against or seize control of the property of another person. The court ruled that the process of issuing emolument attachment orders requires an evaluation of the amount of money to be attached per month compared to the amount of money needed by the debtor to support himself and his family. Judicial oversight should therefore be mandatory and should occur when the emolument attachment order is issued and accordingly s65J(2)(b)(i) and s65J(2)(b)(ii) of the Magistrates’ Court Act were in the circumstances constitutionally invalid to the extent that they allow for emolument attachment orders to be issued by a clerk of the court without judicial oversight.
DECEASED ESTATES This division of the master’s office supervises the administration of deceased estates. The purpose is to ensure an orderly winding up of the financial affairs of the deceased, and the protection of the financial interests of the heirs. The origin of a deceased estate A deceased estate comes into existence when a person dies leaving property or a document which is a will or purports to be a will. Such estate must then be administered and distributed in terms of the deceased's will or failing a valid will, in terms of the Intestate Succession Act, 81 of 1987. The procedure which must be followed to administer a deceased estate is prescribed by the Administration of Estates Act, 66 of 1965 (as amended). Which deaths? • The death of a person who dies within the Republic leaving property or any document being or purporting to be a will. • The death of a person who dies outside of the Republic, but who leaves property and/or any document being or purporting to be a will, in the Republic. • To which Master must the estate be reported? • One must distinguish between those instances where the deceased was resident within the Republic and those where he or she was not resident within the Republic. • Where the deceased was resident in the Republic, the estate must be reported to the Master in whose area of jurisdiction the deceased was resident at the time of his/her death. At present there are master’s Offices in Pretoria, Cape Town, Pietermaritzburg, Grahamstown, Bishop, Umtata, Bloemfontein, Kimberley, Mmabatho/Mafikeng, Johannesburg, Polokwane, Durban, Port Elizabeth, Thohoyandou and Nelspruit. • Where the deceased was not resident in the Republic at the time of his/her death, the estate may be reported to any Master, provided it is reported to only one Master. An affidavit to the effect that the letters of executorship have not already been granted by any other Master in the Republic must accompany the reporting documents. • From the 5th of December 2002 all Magistrate offices are designated service points for the Master and estates can be reported there. However, these Magistrate offices have limited jurisdiction. The following estates will be transferred to the Master's Office, namely: • Estates with wills. • Estates with a value of more than R125 000. • Insolvent estates. • Estates where one or more of the beneficiaries are minors and is not assisted by a legal guardian and the cash assets in the estate is worth more than R20 000. Therefore, it is advisable to report these estates directly to the Master's office. Follow this link to view the relevant forms relating to estates. Also note the amendment to estate values of deceased persons or estates under curatorship or administration in terms of the Mental Health Care Act: Administration of Estates Act: Regulations: Amendment(English/Afrikaans) GG 41224, GoN 1161, 3 Nov 2017. When and by whom must estates be reported? The estate of a deceased person must be reported to the Master within 14 days from date of death. The death is to be reported by any person having control or possession of any property or document being or purporting to be a will, of the deceased. The estate is reported by lodging a completed Death Notice (afr or eng) with the Master. The Death Notice and other reporting documents may be obtained from any Office of the Master of the High Court or Magistrate's Office. How to report a deceased estate The reporting documents will differ slightly depending on the value of the estate and the type of appointment required. If the value of the estate exceeds R250 000, letters of executorship must be issued, and the full process prescribed by the Administration of Estates Act must be followed...more Why you need an appraiser? When property has to be valued in a deceased estate, it is normally done by an appraiser. Appraisers are appointed for specific areas by the Minister of Justice and Constitutional Development in terms of section 6 of the Administration of Estates Act no. 66 of 1965. Appraisers are entitled to a reasonable remuneration which is determined by a prescribed tariff of fees. When there is a dispute regarding the correctness of the remuneration charged, the appraisers account must be submitted to the Master for taxation. Wills A will is a specialized document, which should preferably be drawn up by an expert like an attorney, trust company etc. Intestate succession Any person of 16 years and over is free to make a will in order to determine how his/her estate should devolve upon his/her death. If you die without a will, your estate will devolve in terms of the rules of intestate succession (your assets will, contrary to general belief, not go to the state).
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