The development of the South African emolument attachment order mechanism: A historical overview

• Citation: (2022) 28(1) Fundamina 140
• DOI: https://doi.org/10.47348/FUND/v28/i1a4
• Published date: 16 November 2022
• Pages: 140-170
• Author: van der Merwe, S.
• Date: 16 November 2022

140

https://doi.org/10.47348/FUND/v28/i1a4

ARTICLES

THE DEVELOPMENT OF THE

SOUTH AFRICAN EMOLUMENT

ATTACHMENT ORDER MECHANISM:

A HISTORICAL OVERVIEW

Stephan van der Merwe*

ABSTRACT

In South Africa, wage garnishment is achieved through the emolument

attachment order (hereafter “EAO”) mechanism. This civil debt-

collection instrument plays a signicant role in South African society,

affecting the lives of potentially millions of people. It is therefore

concerning that the mechanism is often criticised for lacking effective

measures to prevent, monitor, identify and then correct irregularities

in the collection of debt through EAOs. This contribution considers the

historical context that directed the development of the South African

EAO mechanism and the composition of the current South African

framework regulating EAOs. It considers South Africa’s unique legal

* BComm LLB LLM PGDip (Higher Education: Teaching and Learning)

(University of Stellenbosch). Senior attorney, notary public and lecturer, Law

Clinic, University of Stellenbosch. This contribution is based on research

done for the author’s LLD dissertation, entitled Developing a Procedural

Framework for Advanced Debtor Protection: The Case of Emolument

Attachment Orders, for which he is currently registered at the University of

Stellenbosch.

(2022) 28(1) Fundamina 140

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SOUTH AFRICAN EMOLUMENT ATTACHMENT ORDER MECHANISM

141

https://doi.org/10.47348/FUND/v28/i1a4

approach resulting from the development of common-law procedural

affordances supporting a predominantly civil-law substantive system.

It analyses the role of Roman law, Roman-Dutch law, English common

law, and the constitutional dispensation in shaping the contemporary

EAO mechanism. In the process, the study identies challenges that

have been present since the mechanism’s earliest origins, which can

be traced through its historic development and remain contentious

in its contemporary version. The study is signicant since the EAO

mechanism has not yet been subjected to a comprehensive and

critical analysis of this kind. Limited research has been conducted

on the South African EAO mechanism and there has not been any

detailed analysis of its history and development. It is submitted that

such an analysis is a necessary rst step to facilitate further in-depth

comparative research with the aim of developing an effective and fair

EAO mechanism.

Keywords: Wage garnishment; debt collection; legal development; propor-

tionality; jurisdiction; debtor abuse

1 Introduction

The contemporary South African emolument attachment order

(hereafter “EAO”) mechanism1 functions as a civil debt-collection

instrument, typically following the granting of a default judgment,2

where one party (the debtor) is judged (by a court) to be liable to

the other (the creditor), pursuant to a legal obligation between

the parties. Through the application of EAOs – also referred to as

“(wage) garnishee orders”3 – debtors’ property, specically their

1 The EAO mechanism is primarily regulated by s 65J of the Magistrates’

Courts Act 32 of 1944. See, also, r 46 of the Rules Regulating the Conduct

of the Proceedings of the Magistrates’ Courts of South Africa, published

as GN R740 GG 33487 of 23 Aug 2010, regarding the content and format

of applicable forms. Van Sittert & Haupt 2013: 20–22 provide a summary

of additional legislation providing for the attachment of wages, namely the

Maintenance Act 99 of 1998; the Basic Conditions of Employment Act 75 of

1997; the Public Finance Management Act 1 of 1999; the Children’s Act 38

of 2008; the Income Tax Act 58 of 1962; as well as ss 74D and 65(E)(1)(c) of

the Magistrates’ Courts Act 32 of 1944. However, not all these statutes are

discussed in this contribution and are therefore not listed in the bibliography.

2 Van der Merwe 2008: 78.

3 In South African jurisprudence, there is a slight – but important – difference

between garnishee orders (a term used to describe an order that empowers the

creditor to attach any debt owed to the debtor by any third party) and EAOs

(which are specic forms of garnishee orders applicable to the employer-

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