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Employer’s Guide to Employment Attachment Orders

1 October 2010 7 Comments

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 judgment creditor to attach the emoluments which are at present or in future owing to the judgment 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 judgment creditor a determined amount (on the terms as set out in the court order) until such time as the judgment 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 judgment 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 judgment had been granted against the employer.

Whilst rather burdensome on the employer certain provisions aim towards assisting the employer in the process: –

  1. a notice to appear at court to determine the instalments payable must be served on the employer in addition to being served on the judgment creditor (unless the debtor has consented in writing in which case the emoluments attachment is simply sent to court to be authorised);
  2. such notice must be issued from the court of the district in which the employer of the judgment 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;
  3. 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 judgment creditor (or his attorney) and the clerk of the court (verified by a court stamp) and served by a sheriff as fraud has occurred in the past; and
  4. once the employer has received an emoluments attachment order deductions are to be made and paid to the judgment creditor or their attorney and the employer has a right to request from the judgment 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:

  1. 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 can not afford the amount of the order.
  2. 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.
  3. 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 agreement  (see the article here and here on in duplum interest).
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7 Comments »

  • adri said:

    Can i Accept an E-mailed or faxed Attachment order for deduction of wages?

  • Brett Bentley (author) said:

    No, it must be properly service by a sheriff of the court, a faxed or emailed document does not comply with the requirement of Section 65(J)(3) of the Magistrates Court Act.

  • Rennie said:

    Thank you for a very informative piece.

    I have today been presented with a court attachment order for one of our employees. This was the first I knew about it. The order was made 5 months ago in the Kempton Park magistrate’s court in Gauteng. Our local jurisdiction is Knysna in the Western Cape. I was never served notice to appear in court to determine the instalments. It looks like a lot of the prcedural provisions you mention have not been taken. Any advice on how to proceed from here?

  • Brett Bentley (author) said:

    Rennie, unfortunately since the publication of this article I have been made aware of certain magistrates courts that are granting emoluments attachment orders which appear contrary to the provisions of Section 65(J)(1)(a) which specifies “….may cause an order (hereinafter referred to as an emoluments attachment order ) to be issued from the court in which the employer of the judgment debtor resides, carries on business or is employed, or , if the debtor is employed by the State, in which the judgment debtor is employed.”

    These magistrates court are apparently relying on the authority of some unreported High Court cases , which despite my best efforts I have been unable to obtain. I respectfully believe these magistrates are legally wrong and causing debtors and employers problems in opposing or rescinding these orders. But unfortunately if these orders are properly granted by a magistrates court you have to abide by them.

    I do point you to this article http://www.moneyweb.co.za/moneyweb-financial/major-debt-collectors-implicated-in-garnishee-abus and suggest that you perhaps you drop a line to the Law Society which governs the attorneys firm concerned and express your displeasure with this practice.

  • Francois said:

    If an employee has a garnish order against her and leaves our employment, is it our responsibility to inform the lawyers where her new work will be? Or is there an employer / employee confidentiality that needs to be adhere too? we did inform the lawyers that she has left.
    thank you

  • Brett Bentley (author) said:

    Section 65(J)(8)a) of the Magistrates Court Act reads:

    ” Whenever any judgment debtor to whom an emoluments attachment order relates leaves the service of a garnishee before the judgment debt has been paid in full, such judgment debtor shall forthwith advise the judgment creditor in writing of the name and address of his new employer, and the judgment creditor may cause a certified copy of such emoluments attachment order to be served on the said new employer, together with an affidavit or affirmation by him or a certificate by his attorney specifying the payments received by him since such order was issued, the costs, if any, incurred since the date on which that order was issued and the balance outstanding.”

    So the onus is on the judgment debtor to notify the judgment creditor’s attorney. But having said that if an employer does not advise the judgment creditor or their attorney of the termination they can have the judgment creditor thinking that they are failing to comply with the court order and issue a warrant of execution against them. I am of the opinion that you did the right and sensible thing to advise the judgment creditor of the termination of employment and that it was not a breach of employee confidentiality.

  • Francois said:

    Thank you very much for the response Brett.

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