Facts about attachment orders

2016-11-02 06:01
Anne-Mieke Plekker

Anne-Mieke Plekker

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Question:

I have read a recent article that points out that due to a recent court judgement, salary attachment orders are no longer allowed. Is this correct and does that mean that the order against my salary is no longer valid?

Answer:

It is not correct that attachment orders, or legally more correct, emolument attachment orders (EAOs), against your salary (generally, however incorrectly, referred to as “garnishee orders”) are no longer allowed and that these orders will now immediately be stopped.

What is correct, is that substantial relief has been provided for debtors against the burden of these EAOs.

Our Constitutional Court recently reviewed the environment within which EAOs are issued and as of 13 September 2016 introduced judicial oversight for the issuing of EAOs and extra safeguards to protect debtors from credit providers utilising the EAO system to their advantage, effectively aligning the current legislation for the issuing of EAOs with the Constitution.

Importantly, this does not mean that all credit debt is now written off or that all EAOs are invalid, as the court order will not affect existing EAOs, unless they are individually challenged.

Although the judicial system has now been sensitised to the abuse of the EAO system and the plight of the overburdened debtor, it does not affect the remedies available to a debtor to suspend, amend or rescind an existing EAO in terms of Section 65J of the Magistrate’s Court Act.

An existing EAO can be individually challenged by way of an application to court and there are no set time frames within which to bring such application.

Before bringing such an application it is important to note what the court may deem as “good cause shown”.

  • The court will generally deem the following, although not exhaustive, as being “good cause shown” to suspend, amend or rescind an EAO: If the court where the EAO was granted is not situated within the local jurisdiction where you live or work;) If the order was implemented with the wrong outstanding balance or deducts an instalment higher than what you consented to;) If you are over-indebted and cannot reasonably support yourself or your dependants; or) If the order was obtained in a fraudulent manner i.e. without your consent or proper knowledge.

In considering the application and the relief to be granted, it should be noted that the court is not forced to rescind (remove) an EAO.

The court will look at the relevant circumstances and make an appropriate order.
Z
Anne-Mieke Plekker, associate, Phatshoane Henney Attorneys

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