(1)
| (a) |
Subject to the provisions of subsection (2), a judgment creditor may cause an order (hereinafter referred to as an emoluments attachment order) to be issued from the court of the district in which the judgment debtor resides, carries on business or is employed. |
| (b) |
An emoluments attachment order— |
| (i) |
must attach the emoluments at present or in future owing or accruing to the judgment debtor by or from his or her employer (in this section called the garnishee), to the amount necessary to cover the judgment and the costs of the attachment, whether that judgment was obtained in the court concerned or in any other court; and |
| (ii) |
must oblige the garnishee to pay from time to time to the judgment creditor or his or her attorney specific amounts out of the emoluments of the judgment debtor in accordance with the order of court laying down the specific instalments payable by the judgment debtor, until the relevant judgment debt and costs have been paid in full. |
(1A)
| (a) |
The amount of the instalment payable or the total amount of instalments payable where there is more than one emoluments attachment order payable by the judgment debtor, may not exceed 25 per cent of the judgment debtor’s basic salary. |
| (b) |
For purposes of this section, ‘‘basic salary’’ means the annual gross salary a judgment debtor is employed on divided by 12 and excludes additional remuneration for overtime or other allowances. |
(c)
(i) When a court considers—
| (aa) |
the authorisation of an emoluments attachment order; or |
| (bb) |
any other order contemplated in this section, |
and after having considered all submissions before the court and after having called for and considered all further available documents, the court is satisfied that other emoluments attachment orders exist against the judgment debtor, the court must postpone the further consideration of the authorisation or other order and set the matter down for hearing.
| (ii) |
The party applying for the authorisation of an emoluments attachment order or other order contemplated in this section, must serve notice of the date of the hearing referred to in subparagraph (i) on the other creditors or their attorneys, and on the judgment debtor, if he or she was not present or represented when the consideration of the authorisation of an emoluments attachment order or other order was postponed. |
| (iii) |
The court may after hearing all parties at the ensuing hearing, make an order regarding the division of the amount available to be committed to each of the emoluments attachment orders, after satisfying itself that each order is just and equitable and the sum of the total amount of the emoluments attachment orders is appropriate and does not exceed 25 per cent of the judgment debtor’s basic salary. |
| (2) |
An emoluments attachment order may only be issued if the court has so authorised, after satisfying itself that it is just and equitable that an emoluments attachment order be issued and that the amount is appropriate, whether on application to the court or otherwise, and such authorisation has not been suspended. |
| (2A) |
A judgment creditor or his or her attorney must serve, on the judgment debtor and on his or her employer, a notice, which corresponds substantially with the form prescribed in the rules, of the intention to have an emoluments attachment order issued against the judgment debtor in accordance with the authorisation of the court referred to in subsection (2). |
| (2B) |
The notice referred to in subsection (2A) must inform the judgment debtor and his or her employer— |
| (a) |
of the judgment creditor’s intention to have an emoluments attachment order issued against the judgment debtor in accordance with the authorisation of the court referred to in subsection (2); |
| (b) |
of the full amount of the capital debt, interest and costs outstanding, substantiated by a statement of account; and |
| (c) |
that, unless the judgment debtor or his or her employer files a notice of intention to oppose the issuing of the emoluments attachment order within 10 days after service of the notice on them, an emoluments attachment order will be sought. |
(2C)
| (a) |
The notice of intention to oppose contemplated in subsection (2B)(c) must state the grounds upon which the judgment debtor or employer wishes to oppose the issuing of the emoluments attachment order. |
| (b) |
The grounds which may be used to oppose the issuing of the emoluments attachment order include, but are not limited to, the following: |
| (i) |
That the amounts claimed are erroneous or not in accordance with the law; or |
| (ii) |
that 25 per cent of the judgment debtor’s basic salary is already committed to other emoluments attachment orders and that the debtor will not have sufficient means left for his or her own maintenance or that of his or her dependants. |
| (c) |
The notice of intention to oppose must be accompanied by— |
| (i) |
a certificate by the employer of the judgment debtor setting out particulars of— |
| (aa) |
all existing court orders against the judgment debtor or agreements with other creditors for payment of a debt and costs in instalments; and |
| (bb) |
when reasonably attainable, the amounts needed by the debtor for necessary expenses and those of the persons dependent on him or her and for the making of periodical payments which he or she is obliged to make in terms of an agreement or otherwise in respect of his or her other commitments. |
| (ii) |
the contact details of all the relevant judgment creditors or their attorneys; and |
| (iii) |
the latest salary advice of the judgment debtor. |
| (2D) |
If a notice of intention to oppose is filed and the judgment creditor or his or her attorney does not accept the reasons for the opposition, he or she or his or her attorney may set the matter down for hearing in court with notice to the judgment debtor and employer and if the opposition is based on overcommitment of the judgment debtor’s salary to existing court orders or agreements with other creditors for payment of a debt and costs in instalments, notice must be given to the other judgment creditors or their attorneys. |
| (2E) |
The court may, after hearing all parties and after satisfying itself that the order is just and equitable— |
| (a) |
rescind the emoluments attachment order or amend it in such a way that it will affect only the balance of the emoluments of the judgment debtor over and above the sufficient means necessary for his or her maintenance and that of his or her dependants; or |
| (b) |
make any order, including an order regarding the division of the amount available to be committed to all the emoluments attachment orders, after satisfying itself that the amount is appropriate and does not exceed 25 per cent of the judgment debtor’s basic salary and an order as to costs. |
(3)
| (a) |
Any emoluments attachment order must be prepared and signed by the judgment creditor or his or her attorney. |
| (b) |
The clerk of the court must ensure that the court— |
| (i) |
has authorised the emoluments attachment order; and |
| (ii) |
has jurisdiction as provided for in subsection (1)(a), |
before issuing an emoluments attachment order authorised in terms of subsection (2) by signing it and may either ask the judgment creditor or his or her attorney for more information or refer the order to the court in the case of any uncertainty.
| (c) |
The emoluments attachment order must be served on the employer of the judgment debtor, (hereinafter called the garnishee) and if the judgment debtor was not present or represented when the emoluments attachment order was authorised, also on the judgment debtor, by the sheriff in the manner prescribed by the rules for the service of process. |
(4)
| (a) |
Deductions in terms of an emoluments attachment order shall be made, if the emoluments of the judgment debtor are paid monthly, at the end of the month following the month in which it is served on the garnishee, or, if the emoluments of the judgment debtor are paid weekly, at the end of the second week of the month following the month in which it is so served on the garnishee, and all payments thereunder to the judgment creditor or his or her attorney shall be made monthly with effect from the end of the month following the month in which the said order is served on the garnishee. |
| (b) |
The judgment creditor or his or her attorney must furnish the garnishee and the judgment debtor, free of charge with a quarterly statement containing particulars of the payments received up to the date concerned and the balance owing. |
| (5) |
An emoluments attachment order may be executed against the garnishee as if it were a court judgment, subject to the right of the judgment debtor, the garnishee or any other interested party to dispute the existence or validity of the order or the correctness of the balance claimed. |
| (a) |
If, after the service of such an emoluments attachment order on the garnishee, the garnishee believes or becomes aware or it is otherwise shown that the— |
| (i) |
judgment debtor, after satisfaction of the emoluments attachment order, will not have sufficient means for his or her own maintenance the court shall rescind the emoluments attachment order or amend it in such a way that it will affect only the balance of the emoluments of the judgment debtor over and above the sufficient means] or that of his or her dependants; or |
| (ii) |
amounts claimed are erroneous or not in accordance with the law, the garnishee, judgment debtor or any other interested party must without delay and in writing notify the judgment creditor or his or her attorney accordingly. |
| (b) |
The written notification referred to in paragraph (a) must set out the reasons for believing or knowing that the judgment debtor will not have sufficient means for his or her own maintenance or that of his or her dependants or that the amounts claimed are erroneous or not in accordance with the law. |
| (c) |
The judgment creditor or his or her attorney must, after receiving the notice contemplated in paragraph (a), without delay indicate whether he or she accepts the reasons given in that notification and if not, set the matter down for hearing in court with notice to the garnishee, judgment debtor or any other interested party referred to in paragraph (a). |
| (d) |
The court may, after hearing all parties and after satisfying itself that the order is just and equitable— |
| (i) |
rescind the emoluments attachment order or amend it in such a way that it will affect only the balance of the emoluments of the judgment debtor over and above the sufficient means necessary for his or her maintenance and that of his or her dependants; or |
| (ii) |
make any order including an order regarding the division of the amount available to be committed to all the emoluments attachment orders, after satisfying itself that the amount is appropriate and does not exceed 25 per cent of the judgment debtor’s basic salary and an order as to costs. |
| (7) |
Any emoluments attachment order may at any time on good cause shown be suspended, amended or rescinded by the court, and when suspending any such order the court may impose such conditions as it may deem just and reasonable. |
| (a) |
Whenever any judgment debtor to whom an emoluments attachment order relates leaves the service of a garnishee before the judgment debt has been paid in full, such judgment debtor must forthwith advise the judgment creditor or his or her attorney in writing of the name and address of his or her new employer, and the judgment creditor or his or her attorney may cause a certified copy of such emoluments attachment order to be served on the said new employer, together with an affidavit or affirmation by him or her or a certificate by his or her attorney specifying the payments received by him or her since such order was issued, the costs, if any, incurred since the date on which that order was issued and the balance outstanding. |
| (b) |
An employer on whom a certified copy referred to in paragraph (a) has been so served, is thereupon bound thereby and is deemed to have been substituted for the original garnishee, subject to the right of the judgment debtor, the garnishee or any other interested party to dispute the existence or validity of the order and the correctness of the balance claimed. |
| (9) |
Whenever any judgment debtor to whom an emoluments attachment order relates, leaves the service of the garnishee before the judgment debt has been paid in full and becomes self-employed or is employed by someone else, he or she is, or is pending the service of the emoluments attachment order on his or her new employer, again obliged to comply with the relevant order referred to in subsection (1)(b). |
| (a) |
Any garnishee may, in respect of the services rendered by him or her in terms of an emoluments attachment order, recover from the judgment creditor a commission of up to 5 per cent of all amounts deducted by him or her from the judgment debtor’s emoluments by deducting such commission from the amount payable to the judgment creditor. |
| (i) |
unreasonably fails to timeously deduct the amount of the emoluments attachment order provided for in subsection (4)(a); or |
| (ii) |
unreasonably fails to timeously stop the deductions when the judgment debt and costs have been paid in full, |
is liable to repay to the judgment debtor any additional costs and interest which have accrued or any amount deducted from the salary of the judgment debtor after the judgment debt and costs have been paid in full as a result of such failure.
| (c) |
The Rules Board for Courts of Law must make a reference to the provisions of paragraph (b) on Form 38 of Annexure 1 to the rules, containing the emoluments attachment order. |
[Section 65J substituted by section 9 of Notice No. 769, GG 41017, dated 2 August 2017
Maintenance Act, 1998
