Cancellation of Emoluments Attachment Orders “Garnishees”
What is a “Garnishee” order?
The legal term for what is commonly referred to as a “garnishee” is an emoluments attachment order. The usage of the word “garnishee” is however more prevalent and hence colloquial. Thus the terms “garnishee” and “emoluments attachment order” or “EAO” have come to be seen as interchangeable. In simple terms, a “garnishee order” allows a creditor to force your employer to deduct money from your salary or wages to go toward repayment of an outstanding debt. Such orders can be cancelled, or rescinded by court application.
N.B. For us to assist you we need a copy of your ‘garnishee’ order! Please contact your HR department for a copy. If you do not have a copy available immediately, complete the form below. You can email the ‘garnishee’ order to us later.
- Which court has power to grant a 'Garnishee' order?
- When can a 'Garnishee' order be granted?
- When can I cancel my 'Garnishee'?
- Can I have my 'Garnishee' reduced?
- Other important facts about emolument attachment orders
In terms of Section 65J of the Magistrates’ Courts Act 32 of 1944, a judgment creditor may have an Emolument Attachment Order issued from the court of the district in which the employer of the judgment debtor resides, carries on business, employment address or the creditor may approach the court where the cause of action arose, in other words where the contract was concluded and accepted by both parties (Jurisdiction is governed by Section 28 of the Magistrates Court Act). When the debtor is employed by the State jurisdiction is based upon the central management and control office as decided in Minister of Law and order v Patterson 1984 (2) SA 739 (A).
From the above, it is evident that the court that has the power to grant the EAO (aka jurisdiction) is the court in the district in which your employer “resides, carries on business, employment address or based upon the cause of action.”
There is often confusion regarding jurisdiction as it might seem that the creditor approached the incorrect court but in fact a judgment could have been granted correctly (in terms of Section 28 in respect of jurisdiction) and an Extract From Civil Judgment is then transferred to the second court – in such an instance there would be two case numbers – one for the judgment and one for the actual Garnishee Order.
An EAO is ONLY issued in the following instances:
- Where the judgment debtor (you) consented in writing or the court has authorized the issuing of the EAO; OR
- The judgment creditor (or their attorney) has sent a registered letter to the judgment debtor at his or her last known address advising the judgment debtor of the amount of the judgment debt and any unpaid costs and that an EAO shall be issued if the said amount is not paid within ten days of the date on which the registered letter was posted. In this instance, the judgment creditor must file with the clerk of the court an affidavit or a certificate that discloses the amount of the judgment debt at the date of the order, any costs and any payments received since that date and the balance owing.
An EAO can be rescinded (cancelled) on the following grounds:
- Lack of jurisdiction;
- The judgment debtor did not consent to the issuing of the EAO and the court did in fact not authorize the granting of the EAO;
- The judgment debtor was not duly notified.
Each matter will be evaluated based on individual facts that prevailed at the time of the granting of the court order and may vary based on each individual matter thus a rescission is not limited to the points in 4 above.
Should you believe that you have any of the grounds detailed in paragraph 4 hereof, we advise that we first conduct a preliminary investigation to determine whether you do in fact have a case to cancel your EAO. This preliminary investigation costs R1 250 and entails obtaining the necessary documentation from the court that granted your EAO and examining this documentation to establish the merits of your case.
If you do not have any grounds as set out previously, and simply want to cancel or reduce the “garnishee” amount on the basis of lack of affordability, then it is not necessary for us to obtain documentation from the court file as the ground for the rescission (cancellation) of an EAO in this instance would be based on your current financial circumstances.
- An employer may recover from the employee concerned 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.
- 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 your salary is subject to an EAO, remember that you can request your employer to obtain a statement of the account in question for you. In terms of section 65J 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.