Applying for an emolument attachment order (EAO) in South African courts involves several steps. An EAO is a court order that allows a creditor to attach a portion of a debtor’s salary to satisfy a debt. Here’s a detailed guide on how to proceed:
Step-by-Step Guide to Applying for an Emolument Attachment Order
Obtain a Judgment:
Court Judgment: Before applying for an EAO, you must have a court judgment against the debtor for the payment of money. This judgment confirms that the debtor owes the creditor a specific amount.
Draft the Application:
Application Form: Complete the prescribed application form for an EAO. This form is available at Justice/Forms/MCR – scroll down to J918-Form 38 – Emolument Attachment Order
Supporting Documents: Attach the necessary supporting documents, including the court judgment, proof of the debt, and any correspondence with the debtor. Do an affidavit stating what the outstanding debt is, referring to the documents you attach as exhibits.
Serve Notice to the Debtor:
Written Consent or Notice: If the debtor consents to the EAO, obtain their written consent. If not, send a registered letter to the debtor’s last known address, detailing the outstanding debt and warning that an EAO may be issued if the debt is not paid within ten days.
File the Application:
Submit to the Court: File the completed application form and supporting documents with the clerk of the court in the area where the debtor resides, carries on business, or is employed.
Court Review: The court will review the application to ensure all procedural requirements are met.
Court Hearing:
Attend the Hearing: If required, attend the court hearing where the application will be considered. The court may request additional evidence or clarification.
Court Decision: If the court is satisfied, it will grant the EAO, specifying the amount to be deducted from the debtor’s salary.
Serve the EAO on the Employer:
Sheriff’s Service: The EAO must be served on the debtor’s employer (the garnishee) by the sheriff. The employer is then legally obligated to deduct the specified amount from the debtor’s salary and pay it directly to the creditor.
Monitor Payments:
Regular Monitoring: Ensure that the employer complies with the EAO and that payments are made regularly. Keep records of all payments received.
Adjustments and Rescission
Amendments: If the debtor’s financial situation changes, the court may amend the EAO to reflect the new circumstances. This can be done by applying to the court with the necessary evidence.
Rescission: If the debtor can prove that the EAO leaves them without sufficient means for their own and their dependents’ maintenance, the court may rescind or amend the order.
Important Considerations
Compliance with Legal Requirements: Ensure that all procedural steps comply with the relevant legal requirements and court rules. Rule 46 of the Magistrates Court Rules.
Employer’s Role: The employer must comply with the EAO and deduct the specified amount from the debtor’s salary. Failure to do so can result in legal consequences for the employer.
Debtor’s Rights: The debtor has the right to apply for the rescission or amendment of the EAO if it causes undue hardship.
