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Categories: Payroll

Employers: Take Note of the Garnishee Judgement

Article © CA(SA)DotNews by DotNews


Emolument attachment orders (EAOs), more widely known as garnishee orders, came under fire recently in the Western Cape High Court. Creditors have been getting garnishee orders issued by court clerks (and not magistrates) and they have often gone to courts hundreds of kilometres from where the debtors live. There is no requirement that the clerk of the court should review how the garnishee order would affect the economic circumstances of the debtor – in at least one instance, virtually the whole of an employee’s earnings were subject to deduction.

Once a clerk of the court has authorised a garnishee order, employers are obliged to deduct the amount stated on the order from the relevant employee’s wages. 

The Court was scathing about these EAOs and declared them unconstitutional and unlawful. That they were issued a long distance from the debtors’ home effectively denied these people the ability to appeal the order, a breach of their right of access to justice. The judge also held that judicial oversight must occur with garnishee orders i.e. a magistrate must authorise an EAO.

What should employers and employees do?  

Garnishee orders should be reviewed by employers in the light of this judgment. The fact that the Justice Department has agreed to abide by this judgment indicates there will almost certainly be changes to the law, and in fact the Department has announced its intention to effect amendments as a matter of urgency.

Employees should be encouraged to seek legal advice on whether their particular garnishee order is valid and if not to appeal the order.

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