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Emoluments Attachment Orders

Stellenbosch Legal Aid Clinic and 16 Others v Certain Organs of State

An Emoluments Attachment Order (EAO) is a debt collection process in terms of which the judgment creditor may apply to have the judgment debtor’s salary attached by the Sheriff in order to satisfy a judgment debt. The employer of the debtor, the garnishee, is obliged to deduct the amount from the debtor’s salary, failing which he/she 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 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/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.

However, this process is flawed in that it lacks judicial oversight.

The judgment

On the 8th July 2015, Judge Desai handed down a 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.

The consequences

  1. S65J: Clerks may no longer issue EAOs. These now need to be issued by a Magistrate in open court.
  1. 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 (the NCA) applies.

Conclusion

Therefore, 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 situations 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. This applies from 8 July 2015 onwards.

For assistance or more information please contact:

Basil de Sousa or Tasmin Marlin

Litigation Department, Abrahams & Gross Attorneys

t.  021 422 1323       e.  info@abgross.co.za

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