Emoluments attachment orders, commonly referred to as garnishee orders, are governed by Section 65J of Magistrates Court Act 32 of 1944.
The provisions of Section 65J define an emoluments attachment order as – an order issued by the court which entitles a judgement creditor to attach the emoluments which are at present or in future owing to the judgement debtor by the garnishee (the employer).
What this essentially means is that the employee is in effect replaced by his employer who now becomes obliged to pay to the judgement creditor a determined amount (on the terms as set out in the court order) until such time as the judgement debt and costs of such order are settled in full.
In the event that the employer fails to make deductions and payments in terms of an emoluments attachment order, the judgement creditor has the right to attach the property of the employer on the grounds of failure to comply with an order of court, as if judgement had been granted against the employer.
Whilst rather burdensome on the employer certain provisions aim towards assisting the employer in the process: –
- a notice to appear at court to determine the instalments payable must be served on the employer in addition to being served on the judgement creditor (unless the debtor has consented in writing in which case the emoluments attachment is simply sent to court to be authorised);
- such notice must be issued from the court of the district in which the employer of the judgement debtor resides, carries on business or is employed to ensure that should the employer wish to be actively involved in the process it will be in their best interest;
- once an order has been made by the court a copy of that order must be served on the employer notifying him of the amount owing and how payment of such is to be made. It is important to ensure that the emoluments attachment is signed by the judgement creditor (or his attorney) and the magistrate (verified by a court stamp) and served by a sheriff as fraud has occurred in the past; and
- once the employer has received an emoluments attachment order deductions are to be made and paid to the judgement creditor or their attorney and the employer has a right to request from the judgement creditor or their attorney, at no cost, a statement containing payments received and the balance presently owing.
When faced with an emoluments attachment order bear in mind that:
- An emoluments attachment order may at any time be amended or rescinded provided the person bringing such application shows a valid reason for doing so. However, this is limited to the existence or validity of the order or the correctness of the balance being claimed or that the debtor cannot afford the amount of the order.
- An employer may recover a commission of up to 5% of all amounts deducted in respect of services rendered in terms of the emoluments attachment order.
- The amount of that a creditor can charge in terms of interest and legal costs is governed by the court order and legal costs, read with National Credit Act, if the credit is a credit