A judgment creditor may cause an order, known as an Emoluments Attachment Order, to be issued from the court of the district in which the employer of the judgment debtor resides, carries on business or is employed.

What is an Emoluments Attachment Order?

An Emoluments Attachment Order 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.

• An Emoluments Attachment Order has the effect of setting aside a portion of the judgment debtor’s salary, wages, allowances or any other form of remuneration due to the judgment debtor (“emoluments”), which becomes payable to the judgment creditor.
• 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.
• The Emoluments Attachment Order will stipulate the installments payable, which shall be payable until the judgment debts and costs have been paid in full.

How is an Emoluments attachment order obtained?

A creditor must apply to a court in the area where the debtor resides, carries on business, or is employed. If the debtor is employed by the State, the creditor must approach the court in the area where the debtor is employed.

• This application may be brought without notice to the judgment debtor or garnishee/employer and must be supported by an affidavit, outlining the size of the debt, the circumstances in which the debt arose and the availability of alternatives to recover the debt, among other factors.
• Once the Emoluments Attachment Order has been authorized, a further application authorizing the issue of an Emoluments attachment order must be brought using a Notice of Intention to issue an Emoluments Attachment Order.
• The application to issue the Emoluments Attachment Order must be served on the judgment debtor and the garnishee/
• The Emoluments Attachment Order shall contain sufficient information to enable the garnishee/employer to identify the judgment debtor. An ID card or number is an example of evidence of identification.

Garnishee order

A Garnishee order deals with the attachment of debts, which includes any income from whatever source other than emoluments.

• A judgment creditor may make an ex parte application to court in order to attach any debt at present or in future owing or accruing to the judgment debtor by or from any other person to an amount sufficient to satisfy the judgment and the costs of the proceedings for attachment.
• This process involves a third party or a garnishee paying the judgment creditor directly instead of paying the judgment debtor monies owed to him. For example, in the event that the judgment debtor has recently sold property and to a third party or garnishee, the garnishee order will order the third party or garnishee to make payment directly to the judgment creditor and not to the judgment debtor whom he bought the property from.

Can an Emoluments attachment order be cancelled, amended or suspended?

• A court may on good cause shown, cancel or rescind, amend or suspend an Emoluments Attachment Order.
• If a debtor cannot maintain him or herself or his or her dependents after an Emoluments Attachment Order has been issued, the court may cancel or amend it in such a manner that the debtor, and his or her dependents, will have sufficient means to survive.

What happens when the debtor leaves the service of his/her employer?

• The debtor must immediately advise the creditor, in writing, of the name and address of his or her new employer.
• The creditor must serve a certified copy of the Emolument Attachment Order on the debtor’s new employer, with an affidavit specifying the payments received since the Emoluments Attachment Order was issued, the costs incurred and the outstanding balance.
• The old employer will be relieved of its payment obligations and the new employer is now bound to the Emoluments Attachment Order.
• If the debtor becomes self-employed, he or she must still comply with the Emolument Attachment Order.