Emoluments attachment ordersMagistrates Court Act - Emoluments Attachment Orders - Constitutionality


In the case of University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and Others (16703/14) [2015] ZAWCHC 99, the High Court dealt with an application involving emoluments attachment orders (EAOs). These are issued in terms of Section 65J of the Magistrates Court Act No. 32 of 1944.

The relevant provision of the Act permits the attachment of a debtor’s earnings. It obliges his or her employer to pay, out of such earnings, specific instalments to the judgment creditor or his or her attorney until the debt is fully paid. The fact that the debtor is a low income –earner is not a determinant factor when ascertaining how much of the debtor’s earnings can be attached.

When the applicants in the present matter brought an application to the High Court, seeking relief from payment of exorbitant instalments, the respondents alleged that consent forms had been signed. These purportedly indicated that the applicants could afford the instalments.


The High Court found that section 65J of the Act was inconsistent with the Constitution. It was invalid to the extent that it failed to provide for judicial oversight with regard to the issuing of an EAO against a judgment debtor. Accordingly, several EAOs, issued in favour of the respondents, were declared to be unlawful, invalid and of no force or effect.

The application was upheld with costs.

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