Court application could remove a million garnishee orders

Once a judgment has been granted against a consumer, the cost of that debt can escalate rapidly. In an example, a judgment was brought against an individual who had borrowed R1 500. The final judgment amount, which is to be collected via an emolument attachment order, was R11 689, which is six times the original loan amount.

This final judgment amount was made up of R1 500 interest, R7 411 in attorney fees and a collection commission of R1 140, as well as “expenses” and a “certificate fee”.

It is this excessive increase in the debt amount that is being challenged in the Cape Town High Court by Summit Financial Partners and the Stellenbosch University Law Clinic.

At the heart of the argument is the interpretation of how the in duplum rule applies to a judgment debt.

In duplum caps the maximum interest that can be added to a loan at the same value as the principal debt/original loan. Under the National Credit Act, the concept of in duplum was extended to include costs – in other words, attorney fees.

This means that, under section 103(5) of the National Credit Act, the total interest and fees charged by a credit provider/attorney may not exceed the value of the default debt. If the original loan was R5 000, the maximum the debt could reach is R10 000, of which R5 000 would go to the capital, and R5 000 to interest and costs.

However, based on the current interpretation of the act, once a judgment is brought against this debt, it is considered to be a new debt agreement (judgment debt), and a new recoverable debt maximum applies. This means that, if at the time of judgment the debt had reached R10 000 – under section 103(5) – it could now double to a maximum of R20 000; basically four times the amount of the original loan debt.

Moreover, it is the view of the National Credit Regulator (NCR), credit providers and attorneys that section 103(5) does not apply to debt post-judgment. This means that not only can the interest bill double, but additional attorney fees can push the debt well past four times the original loan amount as per the illustrated example.

Clark Gardner, the CEO of Summit Financial Partners, argues that this interpretation of the act, combined with excessive legal fees, means that the consumer remains forever indebted.

He says that, firstly, the debt should not “reset”, and the in duplum rule should apply to the original loan and not the judgment debt. He also argues that section 103(5) should still apply to judgment debt as that limits both the interest and legal fees. Gardner says that, because there appears to be very little oversight of these fees, some attorneys create ongoing annuity income, which they collect from garnishee orders.

“Costs are added unabated against a consumer’s account without consideration as to whether the costs were reasonably incurred, whether the costs were reasonable, or whether the costs were actually incurred,” says Gardner, who is calling for these fees to be “taxed”, which means that the court must audit the fees before they are paid by the consumer.

Gardner believes that if the court rules in Summit’s favour, it could wipe out about R1 billion worth of garnishee orders that are currently in place. If, for example, section 103(5) applied to the R1 500 loan illustrated earlier, it would be capped at R3 000. The consumer may have already paid this amount as part of the garnishee that has already been deducted. In many cases, the debt repayments via garnishee orders would already have met the capped amount, and Gardner believes this means about 80% of garnishee orders – about 1 million – would be stopped.

At the moment, credit providers can pass on the costs of debt collection and legal action to the consumer. If this is capped, either the attorney would have to reduce their fee or the credit provider would have to absorb the cost. This would make collecting smaller debts via a garnishee order unaffordable.

However, the NCR disagrees with Summit’s interpretation. It has argued that, as the act stands now, “it is clear that a judgment debt is separate from the original debt”. In its explanatory affidavit as a respondent to the court application, the NCR states that, “once a judgment is granted in the credit provider’s favour, the debt in question ceases to be a ‘debt under the credit agreement’ as contemplated in section 103(5), and decided that it should only be applicable before the debt in question becomes a judgment debt”.

In its affidavit, the NCR added that even if the court ruled that section 103(5) – which includes legal fees as part of the in duplum – does apply, it should still consider the judgment debt as a new debt. In other words, the cost of the principal debt could still quadruple. The NCR maintains that once a judgment is granted against a consumer, it no longer falls under the National Credit Act, but rather the judicial system through the Superior Courts Act and the Magistrates’ Courts Act.

Gardner has accused the NCR of not acting in the interests of the consumer: “The NCR has a duty to enforce the act, to promote and support the development of a fair, responsible, sustainable and accessible credit industry, and particularly to address the needs of historically disadvantaged persons, low-income persons and remote, isolated or low-density communities. One could ask then why the regulator is opposing the consumer-friendly application to stop the abuse of garnishee deductions. The difference between the NCR interpretation they are fighting for versus ours would mean billions taken from the marginalised and handed to superprofit earners in the credit industry.”

Lesiba Mashapa, company secretary at the NCR, said it had not opposed the application, but rather provided clarity around the act.

“This is purely a legal matter that most people have different interpretations about, since it is not clear from the wording of section 103(5). While the act and the NCR are for consumer protection, we always strive to achieve this purpose in a manner that balances the rights, interests and responsibilities of consumers and credit providers.”

Mashapa says the NCR had recommended policy changes to the department of trade, industry and competition to clarify the scope of the section 103(5) collection costs by regulation.

“The department has now published policy review proposals in this regard,” says Mashapa.

In response to a question from City Press, Mashapa says the NCR is “very concerned about the high legal fees, and especially if they are charged in excess of the tariff schedules prescribed by the Magistrates’ Courts Act, the Attorneys Act, the Debt Collectors Act and the Superior Courts Act”.

However, Mashapa says the NCR does not directly regulate the fees that lawyers charge credit providers. Mashapa told City Press that, because the department has published policy review proposals on this, they expect the issue will be resolved by regulation after consultation with the department of justice and the Legal Practice Council.

While we await the outcome of the court ruling, which is expected before the end of the year, what is clear is that judgment debt is a lucrative business as credit providers can continually charge maximum interest rates and attorneys can earn a regular income. This at the cost of the 2.37 million consumers who have a percentage of their salary garnisheed each month, the bulk of which goes first to paying the attorney and then to servicing interest, with very little left to settle the capital.

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