Can a Garnishee Order or Emoluments Attachment Order be Set Aside?

Can a Garnishee Order or Emoluments Attachment Order be Set Aside?

An emoluments attachment order, or “garnishee” may be amended or rescinded provided the person bringing the application shows a valid reason for doing so.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. Thus, a consumer may only challenge a ‘garnishee order’ if it is fraudulent or incorrect in its claim.

An employer may recover from the employee concerned a commission of up to 5% of all amounts deducted in respect of services rendered in terms of the emoluments attachment 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. This provision is essentially for the benefit and convenience of the employer and/or employee who may wish to apply to the court for the amendment, suspension or rescission of such an order.

If a consumer’s salary is subject to an EAO, the consumer can request that their employer obtain a statement of the account in question. In terms of section 65J of the Magistrates’ Court Act an employer may request a statement of account. However, this section does not compel creditors and/or their attorneys to render statements on a regular basis.

Regulation 23.3.6 in terms of the Public Finance Management Act 1 of 1999 caps the emoluments attachment to 40% of the state employee’s salary. However, no such cap exists for debtors employed in the private sector.