COURTS OF LAW AMENDMENT ACT, 7 OF 2017

Transcription

1 COURTS OF LAW AMENDMENT ACT, 7 OF 2017 Guess%mated EAO Receip%ng 1m EAO avg. receip8ng value of R375pm per EAO = R4.5bn pa But less than 10% of signed sec8on 57/58 processed through court! 1

2 Does the EAO-saga affect me? Two debt collec8ons methods Voluntary co-opera8on of consumer SoP Collec8ons Court enforced collec8ons EAO ARachment of assets If no s8ck the carrot has no effect BACKGROUND BASA and Treasury Press Statement Nov 2012 Jus8ce inves8ga8on and the Malema lerer SLAC Appeal 2 nd and 3 rd Magistrate s Court Act DraP Amendments Courts of Law Amendment Bill Courts of Law Amendment Act 2

3 Why the Courts of Law Amendment Act? Stellenbosch Judgement apply only to NCA debt and MCA The Act apply to all debt and all courts Provide for DTI ini8a8ve to clear judgement data once paid in full Main features of the Act 1. Jurisdic8on 2. Sec 57/58 and 65 onus of proof 3. Total EAO instalments capped at 25% of gross income 4. Review, Amendment and Rescission process Subs8tu8on of Employer 5. Cost 3

4 Sec%on 57/58 Judgement Onus of proof Onus on credit provider to: (1A) The offer referred to in subsec8on (1)(b) must (a) set out full par8culars of the defendant s (i) monthly or weekly income and expenditure, supported where reasonably possible by the most recent proof in the possession of the defendant; (ii) other court orders or agreements, if any, with other creditors for payment of a debt and costs in instalments; and Judgement: Onus of proof Documents (2A) (a) the summons or a copy of the lerer of demand; (b) sec 57/58 undertaking (c) all par8culars/documentary evidence referred to in subsec8on (1A), (d) copy of the plain8ff s/arorney s wriren acceptance of the offer and proof of postage thereof; and (e) affidavit or affirma8on by the plain8ff or a cer8ficate by his or her arorney sta8ng in which respects the defendant has failed to carry out the terms of his or her offer and, if the defendant has made any payments since the date of the lerer of demand or summons, showing how the balance claimed is arrived at. 4

5 Addi%onal Requirements (2B) The court (a) may request any relevant informa8on from the plain8ff or his or her arorney in order for the court to be apprised of the defendant s financial posi8on at the 8me judgment is requested; (b) must act in terms of the provisions of the Na8onal Credit Act and the regula8ons thereunder dealing with over-indebtedness, reckless credit and affordability assessment, sa8sfying itself that it is just and equitable that an emoluments arachment order be issued, authorise an emoluments arachment order referred to in sec8on 65J; EAO Jurisdic%on Court with sec 28 jurisdic8on over judgement debtor (not employer) Prevent duplica8on of costs and processes. 5

6 Sec%on 65J(1A): A capped system 65J(1A) (a) The amount of the instalment payable or the total amount of instalments payable where there is more than one emoluments arachment order payable by the judgment debtor, may not exceed 25 per cent of the judgment debtor s basic salary. (b) For purposes of this sec8on, basic salary means the annual gross salary a judgment debtor is employed on divided by 12 and excludes addi8onal remunera8on for over8me or other allowances. Mul%ple EAO s (i)(bb) Where other EAO s exist, court sets marer down for hearing. (ii) Judgement creditor must give all other creditors who have EAO s against consumer 10 days no8ce of hearing. (iii) The court may aper hearing all par8es at the ensuing hearing, make an order regarding the division of the amount available to be commired to each of the emoluments arachment orders, aper sa8sfying itself that each order is just and equitable and the sum of the total amount of the emoluments arachment orders is appropriate and does not exceed 25 per cent of the judgment debtor s basic salary. 6

7 17/08/15 65J(2C)(a) Must include: 1. the grounds of opposi8on, and No%ce of inten%on to oppose 2. cer8ficate by the employer semng out par8culars of 2.1 all exis8ng court orders or agreements with other creditors for payment of a debt and costs in instalments; and 2.2 when reasonably arainable, the amounts needed by the debtor for necessary expenses and those of the persons dependent on him or her and for the making of periodical payments which he or she is obliged to make in terms of an agreement or otherwise in respect of his or her other commitments. 2.3 the contact details of all the relevant judgment creditors or their arorneys; and 2.4 the latest salary advice of the judgment debtor. Sec%on 55(A): Just and equitable All orders granted must be just and equitable. Factors a court must take into account (not limited): (a) the size of the debt; (b) the circumstances in which the debt arose; (c) the availability of alterna8ves to recover the debt; (d) the interests of the plain8ff or judgment creditor; (e) the rights and needs of the elderly, children, persons with disabili8es and households headed by women; (f) social values and implica8ons; 7

8 Sec%on 55(A): Just and equitable Con%nued (g) the amount and nature of the defendant s or judgment debtor s income; (h) the amounts needed by the defendant or judgment debtor for necessary expenses and those of the persons dependent on him or her and for the making of periodical payments which he or she is obliged to make in terms of an order of court, agreement or otherwise in respect of his or her other commitments; and (i) whether the order would, in the circumstances of the case, be grossly dispropor8onate. Subs%tu%on of employer Duty on judgement debtor to no8fy creditor of change in employment Creditor may serve cer8fied copy of EAO with affidavit/affirma8on semng out balance and how calculated. on new employer. New employer is deemed to be subs8tuted. New employers has same rights as original employer 8

9 Cost Orders Irrespec8ve of scale agreed to court has discre8on. Rescission Applica8on: mala fide Judgement Debtor cannot obtain a cost order. Judgement Creditor who oppose can obtain cost order if applicant All cost orders to be just and equitable. 9