When a debtor defaults on payment to a creditor, one remedy available to a creditor is to obtain an emoluments attachment order whereby the debtor is ordered to pay off the debt in installments that are deducted from the debtor’s salary by his or her employer and paid to the creditor until the debt is settled.
Previously, a judgment creditor could approach the clerk of the magistrate’s court for an emoluments attachment order to be issued, without the need for any judicial discretion of a magistrate.
However, the law in this regard has changed following the Constitutional Court decision in University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and Others (case no. CCT127/15, 13 September 2016).
The Constitutional Court pointed out the harsh effects of a lack of judicial oversight in issuing emolument attachment orders and the threat this has to the livelihood and dignity of low-income earners. It was noted that only through the judicial oversight of a magistrate can it be ensured that emolument attachment orders are granted only when it is just and equitable to do so.
It follows that, as of 13 September 2016, an emolument attachment order may only be issued by a magistrate who is satisfied that the issue of such an order and the terms thereof are just and equitable in the circumstances. Even after a magistrate has exercised discretion in this regard, it will always be open for the parties to challenge the magistrate’s decision on appeal.
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