Emolument Attachment Orders (garnishee orders) – What to know and your rights

The word “emolument” means compensation received in the form of wages or salary. An Emoluments Attachment Order (EAO) is granted by a court judgement and awards to a creditor the right to receive weekly or monthly installments from the debtor. This is deducted from the debtor’s wage or salary. Emoluments Attachment Orders are commonly but mistakenly referred to as ‘Garnishee Orders’. A true Garnishee Order refers to the attachment of a debt owed to the employee by a third party, and it is usually a once-off arrangement.

An emoluments attachment order, or “garnishee” may be amended or rescinded provided the person bringing the application shows a valid reason for doing so.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 stipulated in the order.

The amount that a creditor can charge in terms of interest and legal costs is governed by the court order and legal costs, read with the National Credit Act, if the credit is a credit agreement in terms of the National Credit Act.

Section 65J(1)(a) of the Magistrate’s Court Act states that an emoluments attachment order must be issued from the jurisdiction in which the employer of the judgment debtor resides, carries on business or is employed, or if the judgment debtor is employed by the State, from the jurisdiction where the judgment debtor is employed.

Every document intending to be an Emoluments Attachment Order (EAO) – even if issued by a court – should be scrutinized very carefully. Each page of the original court order, of which a copy is handed over to the employer by the sheriff,  should have the court’s stamp/endorsement as well as a case number. However, even that may not be sufficient proof of the authenticity of the document. Fictitious case numbers and a forged court stamp are sometimes used on forms “signed” by non-existent clerks of the court. Ideally, therefore, each EAO should be thoroughly verified with the court of issue and the creditor involved. It is also imperative to notify employees immediately of such EAOs.

In the case of written consent, the clerk of the court has no way of verifying the authenticity of the signature of the debtor, or the reasonableness of the instalments consented to, or even the circumstances under which the consent was obtained. In some cases, debtors never signed consent to judgement, even though judgement was granted on such a basis. In some instances, debtors allege duress or misrepresentation. Cases of blank consent forms, incomplete documentation and the forgery of signatures have also been noted.

The Magistrate’s Court Act requires the EAO order to be served on the employer, by the sheriff in person. In cases where the judgement debtor has consented to an EAO, the sheriff may affect the service by way of registered mail. Case studies have revealed that in some instances, service is effected not by a sheriff, but by an agent or lay person. Employers should not accept EAOs unless they are served by a sheriff of the court – either in person,  or by registered mail.

If you have an EAO against your salary, ask your employer to hand you a copy of the judgement received by them, and then scrutinize it to see if it complies with all of the above, if not, you should get it rescinded.