Many people know that the sheriff can attach movable property and immovable property that can then be sold to satisfy a Judgement by a Court.
However, often people are not aware that money can also be attached (e.g. salaries, investments, bank accounts, contractual debts, etc.)
You might have heard of a “Garnishee” Order or an “Emoluments Attachment” Order but
you didn’t know what they were, this article will help you understand
what they are and how they work.
Garnishee Orders and Emoluments Attachment Orders are the mechanisms that South African Law provides to attach money to satisfy a Judgement from a Court.
Difference between a Garnishee Order and an Emoluments Attachment Order
A garnishee order is granted by the Courts against funds or some other thing of value.
The order is served on the third party and attaches money owed by the third party to the Judgement Debtor.
The third party is then obliged to hand over to the Judgement Creditor directly as much of the attached money debt as is necessary to satisfy the Judgement Debt and costs.
It can be used to collect a debt from funds owed based on contractual obligations, funds in a bank account (belonging to the Judgement Debtor or a third party holding the funds for the Judgement Debtor); funds held in investments; any other cash; etc. Retirement funds are generally excluded.
Emoluments attachment order
If the debtor is employed, a Judgement Creditor can approach the Courts to order that the employer of the Judgement Debtor pay funds from the Judgement Debtor’s salary.
The Judgement Debtor must be employed to be able to attach their wages … so for example, an Emoluments Attachment Order may not be possible against a person that acts as a consultant with clients of their own and who works for himself/herself.
An Emoluments Attachment Order is granted against the employer of the Judgement Debtor; so it is the employer that is obligated to act and make the deduction; and, it is the employer that would be in contempt of court if the deductions are not made to the Salary.
The Emoluments Attachment Order can be an effective tool in collecting a Judgement Debt as a Judgement Debtor may not have enough assets to satisfy the Order of Court and the money goes directly from the employer to the Judgement Creditor.
It both cases (Garnishee Orders and Emolument Attachment Orders) there needs to already be a Judgement against the Debtor by the Court for the payment of the debt.
Then a new application must be made to Court to ask the Garnishee Order or Emoluments Attachment Order. The process is not guaranteed and there are strict requirements for successfully being granted either kind of Order.
On good cause, the Court may suspend, amend or rescind the Order, especially where the Judgement Debtor can show that there are insufficient means available to support the Judgement Debtor and any dependants after the deduction. Where the Judgement Debtor leaves the employment of the Employer, the Judgement Debtor must tell the Judgement Creditor of the name and address of the new employer. The Judgement Creditor may then serve the order on the new employer, who will then be bound by the Court Order.
DISCLAIMER: THERE ARE MORE CONSIDERATIONS THAN WE CAN COVER IN THIS ARTICLE SO ONLY USE THIS INFORMATION AS A GUIDE. THIS INFORMATION DOES NOT CONSTITUTE LEGAL ADVICE. IT IS ALWAYS BEST TO DISCUSS YOUR SITUATION WITH AN ATTORNEY; CONTACT US AT 0861 88 88 35; email@example.com AND THROUGH THE CONTACT FORM ON THIS PAGE.
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