Garnishee Orders in South Africa: Your Rights and How to Set One Aside
A garnishee order, formally known as an emolument attachment order (EAO), is a court order that instructs your employer to deduct money from your salary and pay it directly to a creditor. While EAOs are a lawful debt collection tool, they have been widely abused in South Africa – issued by courts with no jurisdiction and at inflated amounts. The Constitutional Court confirmed in 2016 that you have the right to approach the correct court to set aside an unlawful EAO.
What Is an Emolument Attachment Order?
An EAO is issued by a magistrate's court under Section 65J of the Magistrates' Courts Act 32 of 1944. It is obtained by a judgment creditor and served on your employer, who must then make the deductions from your salary each month.
The abuse of EAOs became a national crisis because of 'consent to jurisdiction' clauses in credit agreements that allowed creditors to obtain EAOs from distant courts far from your home or workplace, making it practically impossible to challenge them.
Contact Legal Aid South Africa on 0800 110 110 (toll-free) to find out if your EAO was issued by a court with proper jurisdiction and whether you can have it set aside.
The Jurisdiction Rule
In 2016 the Constitutional Court ruled in University of Stellenbosch Legal Aid Clinic v Minister of Justice that an EAO must be obtained from a court in the jurisdiction where you live or work. An EAO issued by a court in a different city or province to where you live or are employed may be invalid.
Grounds to Set Aside an EAO
- The EAO was issued by a court that had no jurisdiction over you
- You were not given proper notice of the application
- The deduction reduces your take-home pay below the minimum survival threshold
- The underlying judgment was obtained without proper service
- The debt has since been paid in full
- The debt has prescribed (older than 3 years with no interruption)
Do not simply stop paying or ask your employer to ignore the EAO. This places your employer in contempt of court. You must apply formally to have it set aside.
How to Oppose or Set Aside an EAO
- Obtain the court file number and issuing court details from your employer's payroll department.
- Check whether the issuing court is in the jurisdiction where you live or work.
- Apply to the relevant court to set aside or vary the EAO.
- If you cannot afford legal representation, contact Legal Aid South Africa on 0800 110 110.
- University law clinics across the country also assist with EAO matters at no cost.
Limits on EAO Deductions
Under the Magistrates' Courts Act, total deductions under all EAOs may not leave you with less than sufficient income to meet your basic living expenses. Courts must consider your total debt obligations before issuing an EAO. If you have multiple EAOs, a court can consolidate them and adjust amounts so you retain enough to live on.