Emoluments attachment orders
20 Mar 2019
An Emoluments Attachment Order (EAO) is a debt collection process in which a court order stipulates the terms whereby the judgment creditor can attach or deduct part of the salary of the judgment debtor.
In terms of the order, the employer of the debtor is obliged to deduct the amount from the debtor’s salary, failing which the employer will be held in contempt of court.
However, a spate of cases in recent years has evidenced the abuse to which this process is open, essentially leaving the poorest of the poor with little-to-no wages.
The EAO process
Section 65J(2) of the Magistrates Court Act 32 of 1944 provides the following: an EAO may be issued by a Clerk of the Magistrates Court:
- if the judgment debtor consents thereto, and/or
- if the judgment creditor has sent a registered letter to the debtor informing him or her that an EAO will be issued pursuant to the judgment debt if such debt is not paid in full, and such letter must also be filed with the Clerk of the Court together with an affidavit.
Recent case law: Stellenbosch Legal Aid Clinic and 16 Others v Certain Organs of State
In 2015, Judge Desai handed down judgment in the Western Cape High Court, namely Stellenbosch Legal Aid Clinic and 16 Others v Certain Organs of State. In terms of this judgment, certain provisions of the Magistrates Court Act were declared unconstitutional, namely s65J(2)(a) and (2)(b)(i) and (ii) supra, as well as s45.
- S65J: Clerks may no longer issue EAOs. These now need to be issued by a Magistrate in open court.
- S45: Debtors may no longer consent to the jurisdiction of a Magistrates Court other than that in which the debtor resides or is employed. This pertains to proceedings brought by a creditor for the enforcement of any credit agreement to which the National Credit Act 34 of 2005 (NCA) applies.
What this means is that potential debtors should be aware that only a Magistrate may grant an EAO in open court. This is for the protection of debtors who deserve a proportionality assessment of their financial situation and that which is to be attached.
Employers should also take note of this and should not allow a Sheriff to attach a part of their employee’s salary unless there is an order which was granted in open court.
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