The two main concerns of debt collectors and attorneys were: Debtor’s ‘procedural’ default: Experience with section 65 financial enquiries has shown that debtors do not attend court when requested to do so. Without the debtor present, the process can be delayed indefinitely. This may be exacerbated where personal service of a notice to appear at court is required. Debtors do not bring the requested proof of e.g. income and expenses with them to court, necessitating postponement – the challenges in this regard are discussed below; Courts may not have the capacity to deal with every application for an emoluments attachment order as expected. 240 This also included a concern that presiding officers may be overly cautious when it comes to debtors to the detriment of creditors.
Expectation
Assessment of expectation
The courts will have the capacity for the
Empirical research pertaining to constraints in courts is needed.
transfer of this duty from the clerk of the
Many studies have found that there are severe capacity
court to the magistrate
constraints in the courts, both in respect of resources and competency, which undermines the ability to properly execute the allocated functions. 241
Deal with irregularities
pertaining
to
underlying cause of action e.g. reckless
A judgment has already been granted at the stage of an application for an emoluments attachment order
credit or prescribed debt Refusing the EAO will not address the core issue as other debt Refuse EAO
collection mechanisms may be used such as requesting a writ of execution to attach movable property The court will have to be able to also rescind the order
Evaluate adequacy of ‘consent’
This would be akin to the section 65 debtor’s court procedure which magistrates use
Question debtor under oath The challenges with this process is set out below
Evaluate affordability of ‘instalment’
The court will have to rely on the debtor and creditor to provide the information, necessitating postponement and warning to
240
Empirical research is needed in this regard otherwise the lack of capacity will bar access to justice for deserving judgment creditors where no other mechanism for collecting the debt is viable.
241
WorldBank 2012, NCR 2012, etc.
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