A garnishee order arrived for one of your staff
It is properly called an emoluments attachment order, and it makes your business the collection agent for somebody else’s debt. The rules changed sharply in 2017 after the Constitutional Court found the old system unconstitutional, and the version most payroll departments remember is no longer the law. Here is what you must do, what you may keep, and what makes you personally liable to your own employee.
What changed, and why it matters
For years an emoluments attachment order could be issued by a clerk of the court on the strength of a consent the debtor had signed, often in the same room as the loan agreement, and often in a district on the other side of the country. In 2016 the Constitutional Court held that unconstitutional in a case brought by a university legal aid clinic on behalf of low-paid workers, and Parliament rewrote the section in 2017.
Three things are now fixed in the statute. A court, not a clerk, must authorise the order, after satisfying itself that the order is just and equitable and that the amount is appropriate. Jurisdiction follows where the debtor lives, works or carries on business, so far-flung courts are out. And no matter how many creditors there are, the instalments together may not exceed twenty-five percent of the employee’s basic salary.
Basic salary is defined: annual gross salary divided by twelve, excluding overtime and allowances. Payroll departments that apply the twenty-five percent to gross pay including a car allowance are over-deducting.
What must happen before it reaches you
- A notice to both sides. The creditor serves a notice on the debtor and on the employer, setting out the balance with a statement of account.
- Ten days to oppose. Either the employee or the employer may file a notice of intention to oppose. The employer’s notice comes with a certificate of the orders already in place and the employee’s latest salary advice, which is how the court sees the full picture.
- The court authorises, or does not. The clerk may not sign the order without confirming that authorisation.
- The sheriff serves it on you as the garnishee.
That opposition window is worth using. If your employee already has orders running, or the numbers are wrong, saying so is both a service to your staff member and the way to avoid an unworkable deduction on your payroll.
Your duties once it is served
- Check the authorisation and the arithmetic. Confirm the order was authorised by a court, and work out twenty-five percent of basic salary as defined. Add up any existing orders first.
- Start at the right time. The first deduction is made at the end of the month following service, not immediately.
- Deduct and pay over to the creditor or their attorney as the order directs, and keep the proof.
- Keep your five percent. The Act allows the employer a commission of up to five percent of what it deducts and remits.
- Speak up if it is wrong. If you become aware that the employee will not have enough left to live on, or that the amounts are incorrect, you must notify the creditor in writing without delay.
- Stop when it is paid. Deducting after the debt is settled makes you liable to repay your employee.
- Give the employee the paperwork. The creditor must provide free quarterly statements, and your payslip must show the deduction clearly.
When the employee leaves
Your obligation as garnishee ends with the employment, but the order does not die. The debtor must give the creditor the new employer’s details, and the creditor serves a certified copy of the order together with an affidavit of the outstanding balance on the new employer, who is substituted as garnishee. Keep your deduction records, because you may be asked to confirm what was collected, and hand the employee a statement of what you deducted.
Not the same as other deductions
| Instruction | What it is | Your position |
|---|---|---|
| Emoluments attachment order | Attaches future salary in instalments through the employer | Deduct up to 25 percent of basic salary, keep 5 percent commission |
| Garnishee order proper | Attaches a specific debt a third party owes the employee | Once-off, on the debt attached, not a running salary deduction |
| SARS third-party appointment | SARS appoints you to pay over money you hold for the employee | Statutory, and you are personally liable if you part with the money instead |
| Maintenance order | Court-ordered maintenance deducted from salary | Runs under the Maintenance Act with its own rules |
What actually goes wrong
- Applying the cap to gross pay. Basic salary excludes overtime and allowances, so the ceiling is lower than most payroll systems assume.
- Accepting an order that no court authorised. Since 2017 that order should not exist. Ask for the authorisation.
- Stacking orders past the cap. The twenty-five percent is a total across all orders, not per creditor.
- Deducting from the first payslip after service. The first deduction belongs at the end of the following month.
- Not stopping. The commonest source of a claim against the employer by its own employee.
- Treating the employee as a problem. There is no lawful basis to dismiss or discipline someone because a creditor obtained an order against them.
Payslips that show deductions properly
A payslip has to show every deduction and the leave balance to satisfy the Basic Conditions of Employment Act. We set up compliant payslips for your team, with the deduction lines an attachment order needs, from R390.
Sort out my payslipsFrequently asked questions
How much can be deducted from an employee’s salary?
All emoluments attachment orders together may not exceed 25 percent of the employee’s basic salary, which the Act defines as annual gross salary divided by twelve, excluding overtime and allowances. If a second order would push the total over 25 percent, the employer cannot simply deduct more.
Can an employee consent to a garnishee order?
Not any more. The old route of a signed consent processed by the clerk of the court was struck down by the Constitutional Court in 2016 and replaced in 2017. An order may now only be issued if a court has authorised it after satisfying itself that it is just and equitable and that the amount is appropriate.
Does the employer get paid for doing this?
Yes. The employer may keep a commission of up to five percent of the amounts it deducts and pays over, which is intended to cover the administrative cost.
What if the employee resigns?
The debtor must give the creditor the new employer’s details. The creditor then serves a certified copy of the order and an affidavit of the balance on the new employer, who becomes the garnishee in place of the old one. Your obligation ends when the employee leaves, but keep the file, because you may be asked to confirm what was deducted.
What happens if we ignore it?
An employer who unreasonably fails to deduct on time, or who carries on deducting after the debt is settled, is liable to repay the employee. The order is a court order served on you as garnishee, so ignoring it is not a neutral act.
Can the employee get the order stopped?
Yes. The employee can oppose it within the notice period, and a court may later suspend, amend or rescind an order, for example where circumstances have changed or the amount leaves too little to live on. That is the employee’s application to bring, not the employer’s.
Keep exploring
Sources: the Magistrates’ Courts Act 32 of 1944, section 65J as substituted by the Courts of Law Amendment Act 7 of 2017, and section 72 on garnishee orders; University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and Others, Constitutional Court, 2016. Information, not legal advice, and a disputed order is worth an attorney’s opinion before you deduct.