There has been a suggestion to amend the magistrates court act and the department of justice has drafted an amendment bill to the legislation. Dogged by these practices of credit apartheid, and by the charging of extremely high interest, many had nonetheless succeeded in buying. The debtor is called upon to appear in court for a financial enquiry to enable the court to establish the debtors financial position in order to make a fair and appropriate order. Can an emoluments attachment order be reissued after it. The incidence of and undesirable practices relating to. The court will issue an interim order with a hearing date. The emoluments attachment order can attach the emoluments at present or in future owing or accruing to the judgment debtor by or from his or her employer, when the judgement was obtained from the court concerned or in any other court. The emoluments attachment order task team, chaired by the credit ombud, mr manie van wyk, was established to investigate current practices around eaos.
Mar 12, 2018 before we discuss difference between garnishee order and it attachment order lets understand what garnishee means. Emoluments attachment orders quicklaw guide legalwise. Serve the order on the third party, and then file a certificate of service with the court. One aspect of this was the widespread grantingoften illegallyby magistrates of emoluments attachment or garnishee orders which enable creditors automatically to deduct payment from debtors bank accounts at a 5 per cent charge. The procedure for using the third party debt order process is as follows. If the court issues the garnishee order on the debtors employer but the employer does not comply with the garnishee order, you can go back to the court and request an order that the employer pays the judgment debt instead. It is my finding that legislation needs to be amended to abolish the abuse in the sense that. The mechanism applicable in this research, which credit providers use to recover the debt, is in fact the emoluments attachment order. A garnishment action is taken against the debtor as defendant and the property holder as garnishee. Accordingly, section 65j quite clearly trumps section 45. Submit this notice, at least 14 days before your application is heard, to the person in whose favour the order for attachment of emoluments was made in any manner convenient to you but keep record of the manner in which the notice was submitted.
Garnishment is regulated by statutes, and is usually reserved. As appears from the judgment in this matter the emoluments attachment order contemplated in s65j of the magistrates courts act permits the attachment of a debtors earnings and obliges his or her employer the garnishee to pay out of such. An emoluments attachment order may be executed against the emoluments attachment debtor or garnishee as if it were a judgment of the court. Your guide to labour law in south africa labour guide. 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. Report on the incidence of and the undesirable practices relating to garnishee orders in sa university of pretoria law clinic july 2008. Nov 11, 2017 garnishee order and attachment order are different in nature and in this article i will explain the difference between garnishee order and attachment order for your perusal. The employer is known as the emoluments attachment debtor or garnishee. In this case, the provisions of section 65 are specific in that they govern emoluments attachment orders. Johannesburg the constitutional courts judgment to change the management of emoluments attachment orders, also known as garnishee orders, is regarded as a 100% win for indebted people in south africa, according to odette geldenhuys, a senior associate at webber wentzel. Report on the incidence of and the undesirable practices relating to garnishee orders in sa. How the new garnishee ruling will impact lenders, debtors.
Needs based training2019 south african board for sheriffs. It compels the employer of a judgment debtor to pay a portion of the judgment debtors salary each month to the judgment creditor until the judgment debt is paid in full. Emoluments attachment order vs garnishee order lanhamlove. Emoluments attachment orders in the south african law. They are really emoluments attachment orders or eaosbut that doesnt sound as cool enables a credit provider to take money from a persons salary before they get paid. Emoluments attachment orders in the south african law by. Of course that does not preclude the employer from a voice with regard to the order made but that it is structured as a. The employer is required at best to enforce the order of maintenance and can be thus seen a party from that limited perspective. University of stellenbosch legal aid clinic and 15 others v minister of justice and constitutional development and 17 others western cape high court 1670314 case. This is one way to ensure compliance with your garnishee order.
An emoluments attachment order is an order according to which maintenance can be deducted from somebodys salary by the employer of that person. The brief discussion above differentiates between these two procedures and outlines some key aspects. Emoluments attachment orders in the south african law 4. An emoluments attachment order eao is an effective and legal means of debt collection authorised by the magistrates court act. How to rescind a maintenance emolument attachment order. Emoluments attachment orders and garnishee orders are just two of the avenues available to you when enforcing a judgment granted in your favor.
A so called garnishee order actually people just call it that. Garnishee order instruct a garnishee bank not to pay funds to the judgement debtor until directed by court. Once an emoluments attachment order has been granted, the employer of the judgment debtor who is referred to as the garnishee is obliged on a continuing basis, and until such time as the judgment debt has been paid in full. For example, if a debtor fails to pay money in terms of a judgment, the creditor may apply for a go or an emolument attachment order eao. Garnishee order article about garnishee order by the. The court furthermore found that the broad approach taken by s 45 directly contradicts and undermines ss 90 and 91 of the nca, as the underlying rationale to the limitation of. It is one of the best ways to ensure that maintenance is paid. Emoluments attachment orders relate to the attachment of the salary or wages owing to the judgment debtor by a third party, while garnishee. The order is always subject to the rights of the judgment debtor, emoluments attachment debtor or any interested party to dispute the validity or correctness of the order. Emoluments attachment orders are a favoured process, with some of these orders issued by clerks of the magistrates courts, on the strength of the judgment debtor having consented to the order. Garnishee order and attachment orders in hindi youtube. Unfortunately, the comprehensive report of the emoluments attachment order task team which was submitted to the national treasury and contained a list of principles regarding attachment orders has not been acted upon to date.
If, after the service of such an emoluments attachment order on the garnishee, it is shown that the judgment debtor, after satisfaction of the emoluments. Validity of emoluments attachment orders the next exciting instalment the constitutional court has ruled that, with effect from september 2016, no emoluments attachment order may be issued unless the court has authorised the issuing of such order after satisfying itself that it is just and equitable to do so and that the amount is appropriate. Although no mention is made of garnishee orders in the uniform rules of the high court, attachment of money owed to the judgment debtor is permitted, but only as. In our blogs from july 2015 and august 2015 we dealt with the high courts judgment declaring certain aspects of the longestablished but often abused debt collecting process of emolument attachment orders unlawful on september 2016, the constitutional court confirmed that changes must be effected to section 65j 2a and b of the magistrates courts act mca, so the court and. This term has been derived from the french word garnir which means to warn or to prepare.
The mca provides for the instances in which emoluments attachment orders may be granted. Issuance of an eao is governed by section 65j of the mca. Constitutional court declares that emolument attachment. In this decision the high court pronounced on the apparent largescale abuse of emoluments attachment orders eaos and pulled the plug on debt collectors more unscrupulous methods of collection. Sep 20, 2016 in our blogs from july 2015 and august 2015 we dealt with the high courts judgment declaring certain aspects of the longestablished but often abused debt collecting process of emolument attachment orders unlawful on september 2016, the constitutional court confirmed that changes must be effected to section 65j 2a and b of the magistrates courts act mca, so the court and not. The term garnishee has been derived from the french word garnir which means to warn. The usage of the word garnishee is however more prevalent and hence colloquial.
Emoluments attachment orders eaos are commonly, but mistakenly, referred to as garnishee orders. Jul 28, 2015 when an emolument attachment or garnishee order is invalid posted on july 28, 2015 by bregmans practical application of emoluments attachment order judgment for employers. Garnishee order is courts order and attachment order is income tax order very important for jaiib bank promotion ibps exam banking awareness. A brief overview of the provisions that applied to emoluments attachment orders before the. An emoluments attachment order eao is a debt collection mechanism that is administered through an order of court, which entitles a creditor to attach a portion of a debtors salary, in monthly or weekly instalments to satisfy his claim. Emoluments attachment orders in south africa wikipedia. Garnishee order legal definition of garnishee order. Separating the baby and the bath water garnishee and. A go is an order made by a court, whereby the creditor attaches a portion of a debt owed to the debtor by a third party garnishee. These instalments are deducted by the debtors employer from the debtor.
Emoluments attachment orders in the south african law 4 the emoluments attachment order process is open to several types of abuse. Emoluments attachment orders are applicable when the court, in certain cases, orders the debtors employer to pay a certain portion of the judgment debtors. When an emolument attachment or garnishee order is. Everything you need to know about emoluments attachment. Emoluments attachment order section 65j of the magistrates. Pdf report on investigative research into the incidence. A court order of garnishment allows a creditor to take the property of a debtor when the debtor does not possess the property. In that same year, an emoluments attachment order task team, chaired by the credit ombud was established. The use of emolument attachment orders, jurisdiction and. Before we discuss difference between garnishee order and it attachment order lets understand what garnishee means. Order against garnishee, where the garnishee does not forthwith pay into court the amount due from him to the judgmentdebtor or so much thereof as is sufficient to satisfy the decree and the costs of execution, and does not appear and show cause in answer to the notice, the court may order the garnishee to comply with the terms. Monitor, zapdfs publicationscbm%20september%202012%20final. When an emolument attachment or garnishee order is invalid posted on july 28, 2015 by bregmans practical application of emoluments attachment order judgment for employers. An emoluments attachment order in south african law is a court order whereby the judgment.
In simple terms, a garnishee order allows a creditor to force your employer to. Practical application of emoluments attachment order. Emoluments attachment orders eaos sometimes incorrectly referred to as garnishee orders is a court order whereby the judgment creditorattorney is able to attach a portion of the remuneration of the judgment debtor employee plainly, this means that debt can be. A garnishee order is a common form of enforcing a judgment debt against a creditor to recover money. The concept of garnishment has been introduced in civil procedure code by the amendment act, 1976 and is a remarkable piece of legislation. An eao is granted in terms of s 65j of the magistrates courts act 32 of 1944 mca and orders an employer referred to as a garnishee, hence the confusion to make deductions from a debtors salary or wages and pay these over to the creditor or hisits attorneys. This process is open to abuse because of the absence of any judicial oversight and particularly because no evaluation is done of the affordability of. A go is an order made by a magistrates court court, whereby the creditor attaches a portion of a debt owed to the debtor by a third party garnishee. An eao permits the attachment of a debtors earnings and obliges the debtors employer garnishee to pay a specified amount out of the debtors earnings to the creditor or the creditors attorney until the debt and legal costs have been fully paid. Judicial oversight over the emoluments attachment order process will thus alleviate the harsh effects of an emoluments attachment order on distinctly vulnerable lowincome debtors dignity and livelihood. Cliffe dekker hofmeyr validity of emoluments attachment. Thus the terms garnishee and emoluments attachment order or eao have come to be seen as interchangeable. The order must be obtained in a court where the debtor resides or works.
Difference between garnishee order and attachment order. The case centres around eaos, which permit the attachment of a debtors earnings in settlement of a judgment debt and obliges his her employer to pay out of such earnings specific instalments to the. Emoluments attachment order as the creditor and the debtor. Ultimately, it is necessary to find a balance between the rights of the creditor and the rights of the debtor. Geldenhuys is the pro bono attorney for the applicants who. The garnishee will deduct part of the debt or pay all of the debt, due to the debtor, directly to the creditor. The term garnishee in relation to the emoluments attachment order. Emoluments attachment orders eaos sometimes incorrectly referred to as garnishee orders is a court order whereby the judgment creditorattorney is able to attach a portion of the remuneration of the judgment debtor employee plainly, this means that debt can be deducted from an employees salary or wages. 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. Garnishee orders south africa quicklaw guide legalwise. The emoluments attachment order is executed against the garnishee as if it was a court. Sep 17, 2014 how to rescind a maintenance emolument attachment order garnishee order september 17, 2014. An emoluments attachment order in south african law is a court order whereby the judgment creditor is able to attach part of the salary or wages of the judgment debtor. Any garnishee may, in respect of the services rendered by him or her in terms of an emoluments attachment order, recover from the judgment creditor a commission of up to 5 per cent of all amounts deducted by him or her from the judgment debtors emoluments by deducting such commission from the amount payable to the judgment creditor.
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