Emoluments attachment order checker

This checker works out the most that can lawfully be deducted from your salary under emoluments attachment orders, the court orders most people call garnishee orders, and shows whether a new order fits under the cap given what is already being deducted. Since 2018 the total of all such orders may not exceed one quarter of your basic salary, and since 2016 a magistrate must consider your means before granting one. Many orders in payrolls today predate both changes or were granted without regard to either, and the checker is built to show you where yours stands.

It is for employees who have seen a deduction on their payslip they do not understand, for those facing a new order on top of existing ones, and for payroll administrators who have to decide what to deduct when more than one order arrives.

What this calculator works out and who it is for

You enter your monthly basic salary, meaning annual gross divided by twelve and excluding overtime and allowances; what is already being deducted under existing attachment orders; the instalment a new order asks for; the judgment debt it is for; your essential monthly expenses; and whether the order was granted by the court where you live or work. The checker returns the statutory cap, the room left under it after existing orders, whether the new instalment fits, what would be left after deductions compared with your essentials, and how many months the new order would run at that instalment before interest and costs.

It warns when existing deductions already exceed the cap, when a new order would take the total over it, when the deductions would leave you less than your essential expenses, and when the order comes from the wrong court or was issued without judicial oversight.

How the calculation works

The checker multiplies your monthly basic salary by 25 per cent to get the statutory cap on all attachment orders together. It subtracts existing deductions to get the room left. If you enter a proposed instalment, it adds it to the existing deductions and compares the total with the cap: within, or over by a stated amount, in which case the most that can be added is the room left. If you enter the judgment debt, it divides the debt by the instalment and rounds up for the months to repay, before interest and costs, which the order also covers and which lengthen it.

If you enter essential expenses, it subtracts the total deductions from your basic salary and compares what is left with your essentials. Where the result is less than your essentials, it tells you that the cap is a ceiling rather than an entitlement, and that the court must consider what you and your dependants need and may order less or nothing.

The checker uses basic salary because that is what the Act uses. Overtime and allowances are excluded from the base, so an employee whose pay varies with overtime has a cap fixed by the basic salary alone.

The law behind the numbers

Section 65J of the Magistrates' Courts Act 32 of 1944 allows a judgment creditor to obtain an order against the judgment debtor's employer, called the garnishee, requiring the employer to deduct an instalment from the debtor's emoluments each pay day and pay it to the creditor until the judgment debt and costs are paid. The employer may keep a commission of up to 5 per cent of the amounts deducted for doing so, which under section 65J(10) it takes from the money paid over to the creditor, not from the debtor on top of the instalment. The order follows a judgment and, usually, a failed or unanswered financial enquiry under section 65A or a consent under section 57 or 58.

Until 2016 the clerk of the court could issue these orders on the creditor's papers, in any magistrate's court the creditor chose, with no limit on the amount or the number of orders against one debtor, and the abuse was notorious: debtors working in one province with orders issued in another, deductions taking half or more of a salary, and orders that outlived the debt. In University of Stellenbosch Legal Aid Clinic v Minister of Justice and Correctional Services, decided on 13 September 2016, the Constitutional Court held that an emoluments attachment order may only be issued by a court after judicial oversight of the debtor's means, that the clerk's power to issue them was unconstitutional, and that the order may only be issued by the court of the district where the debtor lives or works.

The Courts of Law Amendment Act 7 of 2017, in force from 1 August 2018, wrote the judgment into the Act and added the cap. Section 65J(1A) now provides that the amount of the instalment, or the total amount of instalments where there is more than one emoluments attachment order against the same debtor, may not exceed 25 per cent of the judgment debtor's basic salary, and defines basic salary as the annual gross salary divided by twelve, excluding additional remuneration for overtime or other allowances. The court must authorise the order only after considering the size of the debt, the circumstances in which it arose, alternative means of recovery, the debtor's income, the rights and needs of children and other vulnerable people affected, and the amount of the debtor's income needed for basic living expenses for the debtor and dependants.

The Act also gives the debtor and the employer remedies. Either may apply to the court to have the order rescinded, suspended or amended on good cause, including that the debtor does not have sufficient means to maintain themselves and their dependants after the deduction. The employer must deduct only the amount in the order, must stop when the debt is paid, and must provide a statement of the balance on request; it may not deduct more, and an employer that over-deducts is itself in breach. Where several orders arrive, the employer applies the cap to the total and the orders are paid in the order in which they were served, so a later creditor may have to wait.

An emoluments attachment order is not the same as a garnishee order under section 72, which attaches a debt a third party owes the debtor, such as money in a bank account, and has no fixed percentage cap but can be set aside where it leaves the debtor without means. Neither is a deduction under section 34 of the Basic Conditions of Employment Act; an attachment order is a court order the employer must obey, within its terms and the cap, and the salary deduction checker deals with ordinary deductions.

Worked example

Thabang earns a basic salary of R12 000 a month and regularly earns overtime on top. An existing attachment order for an old furniture account takes R1 500 a month. A microlender has now obtained judgment for R9 000 and an order requiring R2 000 a month. His essential expenses are R9 500.

The cap is 25 per cent of R12 000, which is R3 000, on the basic salary alone; the overtime does not raise it. Existing deductions of R1 500 leave R1 500 of room. The new order's R2 000 would take the total to R3 500, which exceeds the cap by R500. The checker's headline is that the new order is over the cap and at most R1 500 a month can be added. At R1 500 the R9 000 judgment would take six months before interest and costs. After both deductions Thabang would have R9 000 left against essentials of R9 500, and the checker warns that the cap is a ceiling, that the court must consider his living expenses, and that he should put his budget in front of it; a court that sees those figures may well order less than R1 500.

If the microlender's order had been granted in a court in another town, the checker would add that an order may only be issued by the court where he lives or works and is open to be set aside. And if the order was issued by the clerk without a hearing, as many still are, the final warning tells him to apply to have it set aside.

What the calculator does not include

It does not calculate interest or the costs added to the judgment debt, which the order covers and which extend the repayment period beyond the months shown.

It does not calculate the employer's commission. Section 65J(10) allows the employer up to 5 per cent of the amounts deducted, taken from what it pays over to the creditor, so it reduces what the creditor receives rather than adding to your deduction.

It does not decide what the court will order within the cap. The cap is a maximum; the court sets the instalment on your means.

It does not deal with section 72 garnishee orders, with attachments of bank accounts, or with deductions by consent that are not court orders.

It does not deal with the validity of the underlying judgment. If the judgment was granted without proper service or on a prescribed debt, rescinding it removes the order with it, and that is a separate enquiry.

When to get advice

If the deductions on your payslip exceed 25 per cent of your basic salary, write to the employer's payroll pointing to section 65J(1A) and ask for the deductions to be reduced to the cap; the employer is in breach by over-deducting and most will correct it. If an order was granted by a court other than where you live or work, or without a hearing, apply to that court to have it set aside, or ask a legal aid clinic to do so; the Stellenbosch judgment is the authority. If the deductions, even within the cap, leave you unable to feed your family, apply to the court under section 65J to have the order suspended or amended on the ground of insufficient means, with a written budget. Legal Aid South Africa, university law clinics and the Black Sash have handled many of these matters and do not charge.

If you have several orders and the arithmetic is beyond what the checker shows, speak to a debt counsellor about debt review, which suspends enforcement, including attachment orders for credit agreement debt, while the review stands.

Frequently asked questions

How much can a garnishee order take from my salary? Under section 65J(1A), the total of all emoluments attachment orders against you may not exceed 25 per cent of your basic salary, meaning annual gross divided by twelve excluding overtime and allowances. The court may order less if that is all you can afford.

I have two orders and together they take more than 25 per cent. What now? The employer may only deduct up to the cap, with the orders paid in the sequence they were served. Point payroll to section 65J(1A), and apply to the court to amend the orders if payroll will not act.

Can an order be granted in a court far from where I live? No. Since the Constitutional Court's 2016 judgment, an emoluments attachment order may only be issued by the court of the district where you live or work. An order from elsewhere can be set aside.

Can the clerk of the court issue the order? Not any more. A magistrate must consider your means and authorise it. An order issued by the clerk on the creditor's papers alone is open to challenge.

Does the cap apply to my overtime? The cap is calculated on basic salary, which excludes overtime and allowances, so overtime does not increase the amount that can be attached.

What if 25 per cent leaves me unable to live? Apply to the court to have the order suspended or reduced on the ground that you do not have sufficient means to maintain yourself and your dependants. The cap is a maximum, not a minimum, and the court must weigh your living expenses.

Is a garnishee order the same as an emoluments attachment order? In everyday speech yes, but in the Act a garnishee order under section 72 attaches money a third party owes you, while an emoluments attachment order under section 65J attaches your salary through your employer. The 25 per cent cap applies to the latter.