EMOLUMENTS ATTACHMENT ORDERS/ GARNISHEE ORDERS
What is Emoluments?
- “Emoluments” means salary or wages and an emoluments attachment takes place when the employer of a debtor is instructed by a court order to deduct a specific amount (installment) from the salary or wages of a debtor, to recover a judgment debt owed by the debtor to a judgment creditor.
- Section 65J of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944) (the Magistrates’ Courts Act), deals with emoluments attachment orders (EAO).
What is a Garnishee order?
- A garnishee order means an order of the court for the attachment of a debt owed to the debtor, other than his or her salary or wages, to recover payment of a debt owed by that debtor.
- Section 72 of the Magistrates’ Courts Act provides that the court may, on ex parte application by the judgment creditor or when making an order during an inquiry into the financial position of the judgment debtor (section 65E(1)(b)), order the attachment of any debt at present or in future owing or accruing to a judgment debtor by or from any other person (excluding the State), to an amount sufficient to satisfy the judgment and the costs of the proceedings for attachment.
Application for an emoluments attachment order?
In terms of section 65J of the Magistrates’ Courts Act, an EAO may only be issued when-
- the debtor has consented thereto in writing;
- the court has authorised the EAO, whether on application to the court or otherwise, and the court has not suspended such authorisation; or
- the judgment creditor or his or her attorney has first—
- sent a registered letter to the judgment debtor advising him or her of the amount of the judgment debt and costs as yet unpaid and warning him or her that an emoluments attachment order will be issued if the said amount is not paid within ten days of the date on which that registered letter was posted; and
- filed with the clerk of the court an affidavit or an affirmation by the judgment creditor or a certificate by his or her attorney setting forth the amount of the judgment debt at the date of the order laying down the specific instalments, the costs, if any, which have accumulated since that date, the payments received since that date and the balance owing and declaring that the provisions of subparagraph (i) have been complied with on the date specified therein.
- A debtor usually consents to an EAO when he or she admits liability for the debt and agrees to pay it in instalments, in terms of section 57 of the Magistrates’ Courts Act, or when he or she consents to judgment in terms of section 58 of the Act or when he or she offers to pay the judgment debt in instalments, after judgment has been granted, but before a notice to appear in court for a financial inquiry is issued. The court may, when the debtor appears for an inquiry into his or her financial position in terms of section 65A of the Magistrates’ Courts Act, authorize an EAO.
- An application in terms of rule 55 of the Magistrates’ Courts Rules could also be brought in terms of which the court is asked to authorize an EAO. When there is already an instalment order made, which could be in terms of section 57, 58 or 65 of the Magistrates’ Courts Act, and the debtor fails to comply with the instalment order, the creditor or his or her attorney may, after having complied with the provisions set out in paragraph 2.1(c) above, request the clerk of the court to issue the EAO. (The EAO is in the form of Form 38 of Annexure 1 to the Magistrates’ Courts Rules, which is prepared by the creditor or his or her attorney and signed by the clerk of the court.)
- Rule 55 of the Magistrates’ Courts Rules provides for the requirements to bring an application to the court. In summary, every application must be brought on notice of motion supported by an affidavit as to the facts upon which the applicant relies for relief. Notice must be given to the other party or parties and to the registrar or clerk of the court and certain time limits apply.
- In respect of EAO’s, section 65J provides that the EAO must be issued from the court of the district in which the employer of the debtor resides, carries on business or is employed, or, if the judgment debtor is employed by the State, the district in which the judgment debtor is employed.
- The judgment could have been granted in another district, in accordance with the jurisdictional limits set out in sections 28 and 29 of the Magistrates’ Courts Act.
The current status on the Magistrates’ Courts Amendment Bill in an attempt to curb the abuses of the debt recovery procedure system
- The Bill is now called the Courts of Law Amendment Bill as it contains an amendment to the Superior Courts Act, 2013 (Act No. 10 of 2013), as well.
- The Bill has been introduced into Parliament in May 2016 and is awaiting processing by the Portfolio Committee on Justice and Correctional Services, once Parliament convenes after the elections.