What is an emoluments attachment order?

An emoluments attachment order, usually shortened to EAO, is a court order that tells your employer to take a set amount off your salary every month and pay it directly to a creditor. Your employer becomes legally obliged to make the deduction. It is the step creditors use when a judgment has been granted and they want a reliable stream of payments rather than chasing you.

It is not the same thing as a garnishee order, even though everyone calls it that. A garnishee order attaches money that a third party owes you, such as a bank balance. An EAO attaches your salary. Both are creatures of the Magistrates' Courts Act 32 of 1944.

What has to happen before an EAO exists

An EAO is the last step in a sequence, and each step leaves a paper trail you can inspect.

1. Default on a debt. For credit agreements, the National Credit Act 34 of 2005 requires the credit provider to send you a default notice first, telling you that you may refer the matter to a debt counsellor or an ombud.
2. Summons served on you by the sheriff at your address on record.
3. Judgment, either by default because the matter was not defended, or after a hearing.
4. An application to a magistrate for the emoluments attachment order. The court must be satisfied that the order is just and equitable and that the amount is appropriate, considering your income and your necessary living expenses.
5. Service on your employer, after which the deductions start.

Reforms brought in by the Courts of Law Amendment Act 7 of 2017 tightened this considerably. Before those changes, orders were routinely issued by clerks of the court without a magistrate applying their mind, and often in distant districts where the debtor could not realistically appear. The law now requires judicial authorisation, requires the order to be sought where you live or work, and sets a ceiling on how much of your basic salary can be attached.

How much can be taken

There is no single fixed figure that applies to everyone, because the court must look at your circumstances. Two limits operate together:

• The just and equitable test. The court must consider what you earn, what you must spend to live, and what other deductions and orders already apply to you. An order that leaves you unable to pay rent, transport and food is open to challenge.
• The statutory ceiling. The amendments to the Magistrates' Courts Act cap the deduction at a portion of your basic salary, so a creditor cannot take the bulk of what you earn.

If several orders already come off your payslip, the combined effect is what matters, not each order in isolation.

What your employer must do

Once the order is served, your employer must deduct and pay over. Your employer is entitled to charge a small commission for administering the deduction. Your employer may not dismiss you, demote you or treat you unfairly because of the order.

Your employer cannot cancel the order. If you want it stopped or reduced, that is done at the court that granted it, not at payroll. What your employer must give you is a payslip showing every deduction, and they should be able to tell you which case number and creditor a deduction relates to.

How to challenge or change an EAO

Get the file. Go to the clerk of the civil court named on the order with the case number. You can inspect the file and get copies. Look at the return of service on the summons, the judgment, the amount and the application for the attachment order.

Consider rescission. If judgment was granted without the summons ever properly reaching you, or you have a real defence you were never able to raise, you can apply to the court to rescind the judgment. Time limits apply and they are short, so move quickly.

Apply to vary or suspend. If the judgment is sound but the deduction is unaffordable or the circumstances have changed, you can apply to the court to reduce, suspend or set aside the order. Take proof of your income and a realistic monthly budget.

Check the balance. Ask the creditor's attorney in writing for a full statement of account showing every deduction received, every charge added and the current balance. EAOs sometimes continue running long after the capital was paid, with legal costs and interest keeping the balance alive. In terms of the common law rule known as in duplum, arrear interest generally stops accruing once it equals the outstanding capital, so ask for the interest calculation.

Check whether the debt was valid at the time. If the underlying debt had already prescribed before summons was issued, that would have been a defence. See how to check if a debt has prescribed. Once judgment has been granted the debt becomes a judgment debt, which runs for 30 years, so raise this early.

What if you never knew about the case?

This is common, and there is a separate guide on it: can a garnishee order be placed on my salary without my knowledge. In short, the order should not exist without notice to you, and where notice failed, rescission is normally the route.

Free and low-cost help

• Legal Aid South Africa, 0800 110 110, can tell you whether you qualify. Our legal aid page explains what it covers.
• University law clinics in most major centres take on consumer debt matters at no charge.
• The National Credit Regulator, 0860 627 627, takes complaints against credit providers and debt counsellors.
• The Credit Ombud, now part of the National Financial Ombud Scheme South Africa, resolves credit disputes for free.
• The clerk of the civil court can explain which forms to use for a rescission or variation application, although the clerk cannot give you legal advice.

Can debt review stop an EAO?

Applying for debt review can protect accounts that are not yet the subject of a judgment. Where judgment has already been granted and an EAO is in place, the position is more complicated and depends on what the creditors agree to and what the court orders. Ask a debt counsellor or an attorney specifically about the accounts already under judgment before you assume they are covered.