Emoluments attachment orders in South Africa

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An emoluments attachment order in South African law is a court order whereby the judgment creditor is able to attach part of the salary or wages of the judgment debtor. [1] Once an emoluments attachment order has been granted, the employer of the judgment debtor (who is referred to as the garnishee) is obliged (on a continuing basis, and until such time as the judgment debt has been paid in full) to pay a certain portion of the judgment debtor’s salary or wages to the judgment creditor. [2]

In English and American law, a judgment debtor is a person against whom a judgment ordering him to pay a sum of money has been obtained and remains unsatisfied. Such a person may be examined as to their assets, and if the judgment debt is of the necessary amount he may be made bankrupt if he fails to comply with a bankruptcy notice served on him by the judgment creditors.

Contents

The employer is known as the emoluments attachment debtor or garnishee. It is important to distinguish between the employer as an emoluments attachment order debtor, or garnishee, and the actual judgment debtor. Emoluments attachment orders are signed by the judgment creditor, or by a nominated attorney, as well as by the clerk, and are served by the sheriff on the emoluments attachment debtor or garnishee. [3] An emoluments attachment order may be executed against the emoluments attachment debtor or garnishee as if it were a judgment of the court. The order is always subject to the rights of the judgment debtor, emoluments attachment debtor or any interested party to dispute the validity or correctness of the order. [4]

The emoluments attachment order “is a good way of proceeding against a judgment debtor who does not possess sufficient attachable assets to pay off a significant portion of the debt.” [5] Because the money goes directly from the employer to the judgment creditor, the latter’s attorney does not have to worry about the judgment debtor spending it before it can be attached. The judgment debtor also has an interest in retaining his job. As long as he does so, the debt will continue to be paid.

When to apply

Application for an emoluments attachment order may be made when

Jurisdiction

Application for an emoluments attachment order may be made from the court of the district wherein the employer (that is, the garnishee) resides, carries on business or is employed; or alternatively, where the judgment debtor is employed by the State, the court of the district wherein the judgment debtor is so employed by the State.

Requirements

In terms of section 65J(2)(a) and (b), an emoluments attachment order will not be issued

Once the emoluments attachment order has been issued and served on the emoluments attachment debtor or garnishee, a certain amount will be deducted from the judgment debtor’s salary by the garnishee at the end of every month, and paid over to the judgment creditor. [6] The garnishee is entitled to deduct a five per cent commission for this service. [7]

The court may on good cause suspend, amend or rescind the order, [8] especially where the judgment debtor can show that, after the deduction, there are insufficient means available to support the judgment debtor and any dependants. [9] Where the judgment debtor leaves the employment of the garnishee, the judgment debtor must advise the judgment creditor of the name and address of the new employer. The judgment creditor may then serve a certified copy of the order, together with a certificate of the balance of the debt owed, on the new employer. The new employer, as the new garnishee, is then bound by the order. [10]

Difference between emoluments attachment order and garnishee order

In terms of the procedure adopted in the Magistrates’ Courts, there is a distinction between emoluments attachment orders (which relate to the attachment of the salary or wages owing or accruing to the judgment debtor by a third party), and garnishee orders (which relate to the attachment of all the other kinds of debts which may be owed to the judgment debtor by a third party).

In essence, an emoluments attachment order is a procedure whereby a debt may be collected from a judgment debtor. The order is served on the debtor’s employer (the garnishee), who is instructed to make regular weekly or monthly deductions from the debtor’s salary and to pay these deductions over to the judgment creditor.

A garnishee order, on the other hand, allows a judgment creditor to attach a money debt owed to the judgment debtor by a third party. The order is served on the third party and attaches money owed by the third party (who is also known as a garnishee) to the judgment debtor. The third party or garnishee is then obliged to hand over to the judgment creditor directly as much of the attached money debt as is necessary to satisfy the judgment debt and costs.

See also

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References

Notes

  1. ↑ s 65J of the Magistrate's Courts Act.
  2. ↑ s 65J(1)(b)(i).
  3. ↑ s 65J(3).
  4. ↑ s 65J(5).
  5. ↑ Pete Civil Procedure 347.
  6. ↑ s 65J(4).
  7. ↑ s 65J(10).
  8. ↑ s 65J(7).
  9. ↑ s 65J(6).
  10. ↑ S 65J(8)(a)-(b).
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