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.

A worked example

Bongani earns a basic salary of R11 000 a month. A furniture retailer obtained judgment against him for R6 500 two years ago after he stopped paying a store account, and now applies for an EAO. It asks for R2 000 a month.

The magistrate looks at Bongani's payslip and the budget he files in response: rent R3 500, transport R1 200, food and household R2 800, school fees R900, plus an existing EAO of R800 for a different creditor. After those items he has about R1 800 left. An order for R2 000 would leave him unable to cover basic costs, and the two orders together would exceed the statutory ceiling on his basic salary. The court is likely to grant a smaller amount, or to decline the order until the first one is paid off. Without a budget in front of the court, the order might have been granted at the amount asked. These figures are illustrative, but the lesson is real: the court can only weigh what you put before it.

What your employer must do

Once the order is served, your employer must deduct and pay over. Your employer may keep a commission of up to 5 per cent of the amounts it deducts, but section 65J(10) makes the creditor bear it: the employer takes the commission out of the money it pays over to the creditor, not out of your salary on top of the instalment. 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.

What to do this week

1. Get a copy of the order from payroll, with the case number, court and creditor's name.
2. Pull your credit report from at least one registered bureau to see the judgment and its date.
3. Go to the clerk of the civil court and inspect the file: the summons, the return of service, the judgment and the EAO application.
4. Write to the creditor's attorney for a full statement of account, including interest and costs.
5. Draw up a realistic monthly budget with proof of each item, because that is what any application to vary the order will rest on.
6. Decide, with help if you need it, whether the right application is rescission, variation or suspension, and file it before the time limit runs.

Documents to gather

• every payslip showing the deduction, and your last three payslips before it started
• the order or instruction your employer received
• proof of your living expenses: lease, transport receipts, school fee invoices, medical costs
• proof of any other court orders or maintenance obligations already being deducted
• your credit agreement and any acknowledgement of debt you signed
• bank statements showing what you paid on the account before the summons
• proof of where you lived and worked at the time the order was granted

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.

A realistic timeline

Week 1. Get the order, inspect the file and request the statement of account.

Weeks 2 to 4. Prepare the application, whether for rescission, variation or suspension, with your budget and supporting documents. Serve it on the creditor's attorney.

Month 2 to 3. The application is heard. An unopposed variation can be dealt with quickly. If the creditor opposes, there may be a further hearing. Deductions usually continue until the court rules, unless the court suspends them in the interim.

After the ruling. If the order is reduced or set aside, the court's order must reach your employer, and you should confirm the payslip changes the following month.

Common mistakes and what they cost

Confronting payroll instead of the court. The employer must comply with a served order. Weeks pass and nothing changes.

Missing the rescission window. Rescission of a default judgment has a short time limit that runs from when you learned of it. Delay can close the door on the strongest challenge.

Filing a variation application without a budget. The court decides on what is before it. A bare statement that you cannot afford the deduction is rarely enough.

Letting the order run without checking the balance. Some orders continue for years after the debt has been paid. Every month of overpayment is money you have to fight to get back.

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.
• The Small Claims Court, for claims up to R30 000 without an attorney, if you need to recover deductions taken after a judgment was rescinded.

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.