What is a consent to judgment?

A collector arrives with a clipboard. The conversation is friendly. You are behind, they understand, and there is a form that lets you pay it off in instalments instead of going to court. You sign it because it sounds like the reasonable option.

What you have signed is the court case. All of it, compressed into a page.

Two sections, one effect

The Magistrates' Courts Act 32 of 1944 provides two shortcuts to judgment.

Section 57. You admit liability for the debt and undertake to pay it in instalments. If you default on the instalments, the creditor may apply for judgment on the strength of your admission, without a trial.

Section 58. You consent to judgment outright, for the amount stated, and typically also to an order for payment in instalments.

The difference matters less than the similarity. In both cases you have removed the creditor's need to prove anything. There will be no summons you can defend, no hearing at which the amount is tested, and no occasion on which anybody asks whether the debt was correctly calculated, whether the interest was lawful, or whether the debt had prescribed.

What comes with it

The forms in circulation almost always include a further paragraph: a consent to an emoluments attachment order, directing that the instalments be deducted from your salary by your employer and paid to the creditor.

That is how a form signed at your door becomes a line on your payslip. Our guide on emoluments attachment orders explains how they work and how much can be taken, and our guide on garnishee orders granted without your knowledge explains why so many people discover one only when it starts.

The answer to "how did they get a deduction order without me knowing" is very often "you signed the consent eighteen months ago."

What changed after the Stellenbosch case

For years, emoluments attachment orders were issued by clerks of the court on the strength of these consents, in courts far from where the debtor lived or worked, in amounts nobody had scrutinised. The University of Stellenbosch Legal Aid Clinic litigation, decided by the Constitutional Court in 2016, changed that.

The consequence is that an emoluments attachment order now requires judicial oversight: a magistrate, not a clerk, must authorise it, and must be satisfied that it is just and equitable and that the amount is appropriate. The Act was subsequently amended to build that oversight in, along with limits on how much of a salary can be attached.

Two things follow for anybody holding one of these forms.

Your signature is no longer the end of the process. A consent does not entitle a creditor to walk into a clerk's office and emerge with an attachment order. A court has to look at it.

But it still puts you on the back foot. The judgment itself can still follow from the consent, the debt is still admitted, and the court authorising an attachment order is working from a document in which you agreed to everything.

Why people sign

Naming the reasons helps you recognise the moment.

It is presented as the alternative to court. In fact it is court, with the defence removed.

It is presented as a favour. "We can help you avoid a judgment." The form is the judgment.

The collector is pleasant and the paperwork is fast.

The amount seems right. It usually includes interest, collection costs and fees that have never been tested, and that a court might have reduced.

You are frightened, and signing ends the conversation.

The document should be read in exactly the opposite frame: it is the most consequential thing in the interaction, and the pleasantness is the price of your signature.

Before you sign anything

Ask for the breakdown. Capital, interest, fees and costs, separately, with the rate of interest and the period over which it has run. Compare the interest against the in duplum rule, which caps arrear interest at the outstanding capital, and our debt interest calculator does the arithmetic.

Check prescription. A debt that has not been acknowledged or paid for three years may have prescribed. Signing a consent, or making a payment, while the three years are still running restarts them. On a debt that has already prescribed, a signed consent can lead to a judgment, after which prescription no longer helps you unless the judgment is set aside, and a payment cannot be reclaimed. This is the single most expensive thing you can do with an old debt. Our guide on how to check if a debt has prescribed sets out the test and the prescription checker works through the dates. Do this before any signature and before any payment, however small.

Check the section 129 position. Where the debt is a credit agreement, the National Credit Act requires a section 129 notice before enforcement, and our guide on section 129 notices explains why its absence matters.

Ask whether you are under debt review. If you are, credit agreements under review cannot ordinarily be enforced in this way. Our guide on how long debt review takes deals with the protection it gives.

Do not sign on the doorstep. Take the document. A collector who will not let you keep a copy overnight is telling you what it is.

Consider an ordinary payment arrangement instead. You can agree to pay instalments without consenting to judgment. Put the arrangement in writing, keep to it, and keep the proof. The creditor may push for the consent because it is better for them; that is precisely why it is worse for you.

If you are asked to sign one at work

A variant worth naming, because it is common and it is coercive in a way that is easy to miss.

Some collectors approach the debtor's employer first, and the form is presented at work, sometimes with the payroll clerk in the room. The implication is that the employer already knows, that the deduction is inevitable, and that signing is tidier than resisting.

None of that follows. Your employer has no authority to consent on your behalf, no obligation to deduct anything without a court order authorised by a magistrate, and no business being party to the conversation. A form signed in those circumstances is exactly the kind of consent the Stellenbosch litigation was concerned with, and a court asked to authorise an attachment order on the strength of it is entitled to know how it was obtained.

Take the document, leave the room, and deal with it at home. Note who was present and what was said. If the employer has already been told about the debt, that is a separate concern about how your information was handled, and our guide on whether debt collectors can call you at work sets out the limits.

If you have already signed

Get a copy. From the creditor or from the court file, quoting the case number if there is one.

Establish what has happened since. Has judgment been granted? Has an emoluments attachment order been authorised, and by whom? Is a deduction running?

Check the amount being deducted against your payslip and against the order. Deductions frequently continue past the point where the debt is paid, and our guide on removing a judgment from your credit record explains what to demand when it is.

Consider rescission where the consent was obtained improperly, where the debt had prescribed, where you did not understand what you were signing, or where the amount is wrong. Our guide on rescinding a default judgment covers the grounds and the time limits, and a judgment on a consent can be attacked on some of the same footing.

Apply to vary the attachment order where the amount leaves you unable to meet basic living expenses. The court authorising these orders is required to consider what is just and equitable, and that includes your circumstances now.

Get help. Legal Aid South Africa is on 0800 110 110, and our free legal help page lists the university law clinics that do this work, several of which have litigated exactly these forms.

Worked example

This example is illustrative. A woman owes R9 800 on a clothing account she stopped paying two and a half years ago. A collector visits and offers an arrangement of R450 a month. The form she signs is a section 58 consent to judgment for R14 200, being the capital plus interest and collection costs, incorporating a consent to an emoluments attachment order.

Three things have happened in that signature.

She has admitted a debt of R14 200 without anybody checking whether the interest exceeded the capital or whether the costs were recoverable.

She has interrupted prescription. The debt had six months left to run before it prescribed. Her acknowledgement restarts the clock.

She has consented to a salary deduction, which will now be placed before a magistrate for authorisation with her signature on it.

Had she instead asked for a breakdown, she would have seen that the interest component was close to the capital and that R2 100 of collection costs was unexplained. Had she checked prescription, she would have seen that saying nothing and paying nothing for six more months would have ended the debt entirely. Had she wanted to pay anyway, she could have agreed R450 a month in a letter, without consenting to judgment or to a deduction, and kept the same instalment with none of the consequences.

The instalment was the same in both versions. Everything else was different.