Garnishee Order

What is an emoluments attachment order?

An emoluments attachment order (“EAO” – also known as a garnishee order), is a court order that instructs an employer to deduct money from an employee’s salary or wages to pay off and settle a debt owed.

EAO’s are most commonly obtained by credit providers, but may also be used by parents where one parent defaults in maintenance payments and may also be used in the case of private loans which are not settled, etc.

The process of obtaining an EAO

The creditor will first approach the court in the jurisdictional area where the debtor resides or is employed to get judgement against the debtor using the usual litigation channels. In order to apply for an EAO, following judgement, an application must be submitted to which an affidavit is attached which sets out the details of who the debtor is, confirmation of judgement granted and confirmation of the outstanding amount and amount that will be deducted every month.

The creditor must notify the debtor and employer of the application and notify them of the opportunity to appear in court to determine whether the debt is legal and to determine a fair amount which is to be deducted.

When determining a fair amount, the court will first determine what the debtor needs to survive and will not allow a deduction of more than 25% of the debtor’s earnings.

If the court is satisfied that a fair deduction can be made, the court will issue the EAO. The sheriff of the court will then be instructed to deliver a copy of the EAO (also presenting the original) to the employer, whereafter the EAO will take effect. The employer will then be obliged to start making deductions from earnings and will make payment to the creditor. The employer will further be allowed to deduct collection commission, but this amount may not exceed the amount owed.

How to confirm the validity of an EAO

The order served by the sheriff must reflect a case number, court stamp, signature by the creditor’s attorney and details of the debtor (name, ID number and employee  number).

A debtor may also lodge an enquiry with the Credit Ombud who will be able to advise whether the order is in line with the credit act, whether the correct interest rate and other fees are being charged and whether proper process was followed. If it is found that the EAO was not properly obtained, the Ombud may negotiate with the creditor in order to rescind the order or to amend the amount if it is not affordable.

Setting aside or cancellation of EAO

A debtor may apply to the court to set aside the order of good cause can be shown, such as that the debt has been settled.