The Constitutional Court has ruled that, with effect from 13 September 2016, no emoluments attachment order may be issued unless the court has authorised the issuing of such order after satisfying itself that it is just and equitable to do so and that the amount is appropriate.

In July 2015, we cautioned employers against paying further amounts under emoluments attachment orders without ensuring that the orders complied with the new requirements stipulated then by the Western Cape Division of the High Court. That court held that the order must have been issued by a Magistrate in open court and, where it arises from an agreement regulated by the National Credit Act, the order must have been issued in the area in which the employee resides or works.

Yesterday the Constitutional Court undertook some nifty judicial tailoring of sections 65J(2)(a) and (b) of the Magistrates’ Courts Act by deleting an “or” here, adding an “and” there and replacing a “will” with a “may”. The remodelled s65J(2) will now read as follows:

“65J. Emoluments attachment orders. . .
(2)   An emoluments attachment order shall not be issued:
a.unless the judgment debtor has consented thereto in writing or and the court has so authorised after satisfying itself that it is just and equitable that an emoluments attachment order be issued and that the amount is appropriate, whether on application to the court or otherwise, and such authorisation has not been suspended; or
b.unless the judgment creditor or his or her attorney has first:
(i)   sent a registered letter to the judgment debtor at his or her last known address advising him or her of the amount of the judgment debt and costs as yet unpaid and warning him or her that an emoluments attachment order will may be issued if the said amount is not paid within ten days of the date on which that registered letter was posted; and
(ii)  filed with the clerk of the court an affidavit or an affirmation by the judgment creditor or a certificate by his or her attorney setting forth the amount of the judgment debt at the date of the order laying down the specific instalments, the costs, if any, which have accumulated since that date, the payments received since that date and the balance owing and declaring that the provisions of subparagraph (i) have been complied with on the date specified therein; and
(iii) been granted an order of court authorising that an emoluments attachment order be issued after satisfying itself that it is just and equitable that the order be issued and that the amount is appropriate.”

The court ruled expressly that the order has effect from 13 September 2016 and only applies to future orders.

Written by Aadil Patel, Tim Fletcher and Megan Badenhorst, Cliffe Dekker Hofmeyr