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Everything you need to know about Emoluments Attachment Orders (EAOs)

Everything you need to know about Emoluments Attachment Orders (EAOs)

 

  1. Definition of EAOs

Emoluments Attachment Orders (EAOs) (sometimes incorrectly referred to as garnishee orders) is a court order whereby the judgment creditor/attorney is able to attach a portion of the remuneration of the judgment debtor (employee) – plainly, this means that debt can be deducted from an employee’s salary or wages.

  1. Validity of EAOs

In order for an EAO to be valid, it must contain:

  • a case number
  • original signature of a magistrate
  • original stamp from the court
  • original signature of the attorney
  • full names and identity number of the employee.

EAOs issued by the clerk of the court may be invalid. Only the court with jurisdiction in the area in which the employer resides may be entitled to issue an EAO.

Where a credit provider is seeking to enforce a credit agreement to which the National Credit Act (NCA) applies, consent obtained from an employee to the jurisdiction of a magistrate’s court other than the one in which the employee resides, or is employed, may be invalid.

  1. Service of EAOs

The sheriff must present the original order whereafter a copy is left with the employer – a faxed or emailed order will not suffice. Before accepting, employers should ascertain that the employee is still in service. A copy should be handed to the employee. If the EAO is in order, it must immediately be loaded onto a system so deductions can commence from the employees remuneration. If the order is defective, the employee must refuse to accept and immediately notify the judgment creditor/attorney of the errors with the order.

  1. Failure of employer to adhere to order

Once granted, the employer must make continuous payments until the judgment debt and legal costs has been paid in full. If the employer refuses or fails to make the payments, the judgment creditor/attorney may issue a warrant of execution for the arrear payments against the employer.

  1. When employees dispute EAOs

The order may be stopped or the installments reduced if the employee can prove that the portion of his remuneration left after the deductions, is insufficient for purposes of providing for him and his dependants. This can be done by way of an application to court. The employer is still obliged to make deductions till such amended/reduced order is served.

  1. Administrative fees charged by employer

Employers are entitled to 5% commission of all amounts deducted. The commission should be deducted from the amount payable to the judgment creditor.

  1. Termination of the employee’s services

It is imperative that employers notify the judgment creditor/attorney in writing when an employee’s services is terminated, even if it’s not stipulated. This will prevent the attorney from proceeding with a warrant when deductions are stopped by the employer.

ABOUT THE AUTHOR

Eleanor du Plessis obtained her LLB degree in 2011 and Post Graduate Diploma in Labour Law in 2013 from the University of the Free State. She was admitted as an attorney of the High Court of South Africa in 2014. She joined SEESA Labour in January 2015.

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