Editor: HRTorQue does offer an extra service to validate garnishee orders and make sure vulnerable employees are not paying too much. Feel free to contact us if you would like to know more.
In September 2016 the Constitutional Court handed down judgment for emolument attachment orders (“EAO”) to require judicial oversight to determine if they are just and equitable, and if the amount is appropriate.
An EAO, commonly known as a garnishee order, is a court order that compels a debtor’s employer to pay his/her debt from their salary.
The judgment followed a series of judgements made by the Western Cape division of the High Court covering the questions of whether adequate judicial oversight was being provided over the issuing of garnishee orders and whether an employer was required to enforce a garnishee orders against employees where the garnishee order was obtained in another jurisdiction.
The University of Stellenbosch Legal Aid Clinic had first brought the case forward to the Cape Town High Court, to fight garnishee orders issued to applicants by clerks of the court.
Judgement
The Constitutional judgement mandates the following:
- Judicial oversight is required during the garnishee order issuing process. This oversight requires a Magistrate (rather than simply a Clerk of the Magistrates’ Court) to review new garnishee orders, determining if they are just, equitable, and if the amount is affordable.
- All new garnishee orders received from an area not within the residence or employment district of the debtor will be invalid.
What is the likely impact?
This is an important step to protect vulnerable employees from inequitable garnishee orders. While employers are required to make deductions from employees, they often don’t have the time or resources to check the validity or aggregate amount of the deductions.
What is not yet clear is whether this will tie up magistrates’ time in approving garnishee orders increasing court backlogs, or reduce the incidence of unscrupulous practices by creditors.