Do I have any say over that garnishee order that’s deducted from my salary?

“I had some financial problems a little while ago, with the result that I owed money. One of my creditors now has a garnishee order against my salary which my employer must deduct every month. I understand I must settle my debts, but the garnishee order leaves me with very little to take home to care for my family. Is there anything I can do?”

A garnishee order – or legally more correctly – an emoluments attachment order (EAO), is an order that can be obtained by a creditor that permits the attachment of a debtor’s salary and places an obligation on the debtor’s employer to pay specified instalments to a creditor or a creditor’s attorney until the judgment debt and collection costs have been paid in full.

The practice of obtaining an EAO against a debtor is a common practice affecting many South Africans. Unfortunately, as often happens where money is involved, bad practices have developed relating to EAO’s, with low income groups in particular being very vulnerable to the effect of an EAO against their salary. Such practices include multiple EAO’s issued against the same debtor, EAO’s issued by a clerk of the court without any assessment of whether the debtor can afford the EAO, ‘forum shopping’ by debt collectors to obtain EAO orders from Magistrate Courts far away from where debtors live and work and jeopardising their right to access the court.

These unscrupulous practices relating to EAO’s recently came under scrutiny by our courts, with Judge Desai of the Western Cape High Court demanding the need for greater judicial oversight over the award of EAO’s to ensure an assessment of affordability (a statutory limit on the number of and amount of EAO’s that may be obtained against a debtor). In addition, the practice of ‘forum shopping’ was also outlawed as a practice which denies a debtor the ability to defend or obtain relief against an EAO. Accordingly, creditors may no longer seek EAO’s in jurisdictions other than debtors’ places of residence. This judgment has set the wheels in motion that many of these bad practices in debt collection do not happen again.

This does not mean that EAO’s will disappear or that existing EAO’s are automatically set aside. EAO’s remain a viable option for debt collection, but it will be more difficult, costly and labour intensive for a creditor to obtain such with greater protection afforded to the debtor. There are also amendments envisaged in terms of the Magistrate’s Court Amendment Bill for the granting of EAO’s and in the light of this judgment, creditors will be well advised to follow the procedures for obtaining an EAO to the letter. 

In your case, where you already have an EAO against your name, the EAO remains valid unless you challenge its validity. For advice on your rights to challenge the validity of the EAO I suggest that you consult with an attorney or with a representative of a Legal Aid Board in your area for assistance in reviewing the EAO and what steps you can take to address the dire impact this has on your monthly finances.

September 8, 2015
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