Garnishee order: how a lender gets and uses an emoluments attachment order

Garnishee order meaning: an EAO or a section 72 order

A garnishee is a third party who owes the debtor money: an employer that owes wages, or a bank that holds a balance. In everyday South African use, a garnishee order means an emoluments attachment order (EAO) under section 65J of the Magistrates' Courts Act 32 of 1944, which attaches salary. The Act itself uses the term garnishee order for section 72, which attaches other debts owed to the debtor. Both enforce a judgment: neither is available before one.

What changed in 2016 and 2018

Until 2016 a clerk of the court could issue an EAO on the debtor's written consent, or after a registered letter and an affidavit, with no magistrate involved. On 13 September 2016, in University of Stellenbosch Legal Aid Clinic v Minister of Justice and Correctional Services [2016] ZACC 32, the Constitutional Court held that this lacked judicial oversight and was unconstitutional. With immediate effect it read words into section 65J(2): an EAO may be issued only once a court has authorised it, after satisfying itself that it is just and equitable and that the amount is appropriate. It also dismissed appeals against the High Court's ruling that, when a creditor enforces a credit agreement under the National Credit Act (NCA), the debtor cannot consent in writing to the jurisdiction of a magistrates' court other than where they live or work.

The Courts of Law Amendment Act 7 of 2017, in force from 1 August 2018, rewrote section 65J around that ruling:

• a court must authorise every EAO (section 65J(2));
• all EAOs together may not exceed 25% of basic salary (section 65J(1A));
• the debtor and employer get a notice and 10 days to oppose, counting court days only (sections 65J(2A) to (2C));
• where other EAOs exist, the court must hold a hearing with notice to the other creditors (section 65J(1A)(c));
• the order must come from the court for the district where the debtor lives, works or does business, and the clerk signs only after checking the authorisation and jurisdiction (sections 65J(1)(a) and 65J(3)(b)).

The same Act lets a court authorise an EAO when it grants judgment on the debtor's admission or consent (sections 57 and 58), on a post-judgment offer (section 65) or at a financial inquiry (section 65E). For NCA credit, the court must first apply that Act's rules on over-indebtedness, reckless credit and affordability.

What is the maximum garnishment allowed?

Section 65J(1A) caps the instalment, or the total of all instalments where there is more than one EAO, at 25% of the debtor's basic salary: the annual gross salary divided by 12, excluding overtime and allowances.

A debtor on R144,000 a year has a basic salary of R12,000 a month, so all EAOs together may take at most R3,000. If an existing EAO already takes R2,200, only R800 is left, and the court must set the matter down so the creditors can be heard on dividing it. The court can go below 25% if the debtor would not keep enough to support themselves and their dependants (sections 65J(2E) and (6)).

Steps for a lender

1. For NCA credit, deliver a section 129(1) notice by registered mail or to an adult at the address the consumer chose. You may sue once the consumer has been in default for 20 business days and 10 business days have passed since delivery (section 130(1)). If you have received a debt review notice, section 88(3) restricts enforcement.
2. Get judgment in the district court where the debtor lives, works or does business: default judgment after a summons, or faster, judgment on the debtor's written admission and offer to pay (section 57) or consent to judgment (section 58), which must set out income, expenses and other debt orders.
3. Ask the court to authorise an EAO: at judgment, on an accepted post-judgment offer, at a financial inquiry after a section 65A notice, or by application.
4. Serve the Form 38A notice on the debtor and the employer with a statement of account showing capital, interest and costs (sections 65J(2A) and (2B)). A new Form 38A applies from 3 July 2026 (Government Notice R.7530).
5. Wait 10 court days. If they oppose and you reject the grounds, set the matter down for hearing (section 65J(2D)).
6. Prepare and sign the EAO (Form 38). The clerk signs it once satisfied that the court authorised it and has jurisdiction, and the sheriff serves it on the employer, and on the debtor if absent when it was authorised (section 65J(3)).
7. Deductions start at the end of the month after the month of service for monthly-paid staff (section 65J(4)(a)). Send the employer and debtor a free quarterly statement (section 65J(4)(b)), and stop the order once the debt is paid.
8. If the debtor changes jobs, serve a certified copy on the new employer with an affidavit or attorney's certificate of payments and balance (section 65J(8)).

Keep on file:

• the judgment or court order and the EAO authorisation;
• the debtor's signed admission or consent with income and expenses, and the latest payslip;
• a current statement of account;
• the employer's name and address, and the debtor's ID and employee numbers;
• proof of service of Form 38A and, for NCA credit, the section 129 notice with proof of delivery.

Costs, and who carries them

The Magistrates' Courts tariff (Annexure 2, Table B, Part I, as substituted from 28 November 2025 by Government Notice R.6752) sets the attorney's costs recoverable from the debtor:

The employer may keep a commission of up to 5% of each deduction, taken from the amount paid to the creditor (section 65J(10)(a)). On a R1,000 deduction the employer can keep R50 and pay you R950: that cost is yours, not the debtor's. An employer that unreasonably fails to deduct on time, or to stop once the debt is paid, must repay the debtor the resulting costs, interest or over-deductions (section 65J(10)(b)).

Legal costs on the account must be reasonable and agreed or taxed, on notice to the debtor. After judgment the NCA in duplum cap in section 103(5) no longer applies ([2021] ZASCA 156), but the National Credit Regulator's Circular 6 of 2023 points out that the common-law in duplum rule still stops arrear interest on a judgment debt once it equals the unpaid capital.

Bank accounts and warrants of execution

Under section 72 the court may, on an application made without notice to the debtor, order a bank or anyone else in the district who owes the debtor money, except the State, to pay the creditor enough to satisfy the judgment and costs. It must set aside or reduce the order if it would leave the debtor without enough to live on (section 72(2)). From 27 March 2026 the attorney's fee is R771 for a claim up to R10,000 and R901 above that, plus R160 for the garnishee order (Form 39) and R121 for an order of execution against the garnishee (Government Notice R.7178). It suits a debtor with money in a known account but no steady job.

A warrant of execution is the other route. Once a judgment is unpaid, the clerk issues a warrant and the sheriff attaches and sells movable property; immovable property follows only if movables are not enough or the court orders it on good cause (section 66(1)(a)). Beds, bedding, clothing, a month's food and, up to amounts the Minister sets, furniture and tools of trade are protected (section 67).

When an EAO is worth it, and when a payment plan is better

An EAO suits a debtor in a steady job with a known employer, a balance large enough to justify court costs and the employer's 5%, and no existing EAOs near the 25% cap. A payment plan suits small balances, uncertain jobs, debtors who engage, and anyone whose salary is already committed to other orders.

The middle route: after a letter of demand, record the plan as a written admission of liability and offer to pay under section 57, with the debtor's income and expenses. If the debtor stops paying, you can ask the court for judgment on that document without a summons, and ask it to authorise an EAO at the same time (sections 57(2) and 57(2B)(c)). Until then, collect the instalments by debit order on payday.

Questions people ask