SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Jessica Clark, Clarks Attorneys
Emoluments attachment order The second method of enforcement is an emolu - ments attachment order. In this instance, a credi - tor would approach the court on application after a breach of a financial order. This application is made on notice, and the employer of the debtor will be cited in the application. If successful, the court will order that repayment of the debt is made to the creditor directly by the debtor’s employer and deducted from the debtor’s sal - ary or wages. This can be done in a singular instance, if sufficient, or on an ongoing future A garnishee order is to be distinguished from an emoluments attachment order. It allows the creditor to attach any debt owing to the debtor by a third party, for that debt to be paid directly to them. This application is made on notice, and the third party must be cited. Attachment of a pension, annuity, or another interest This method of enforcement is prescribed by Section 26(4) of the Maintenance Act 99 of 1998 and provides that a creditor may approach a court to seek an order that a pension, annuity, gratu - ity or compassionate allowance or other similar benefit in the name of the debtor be attached and paid to the creditor. In this instance, such an interest will be attached in terms of a writ of execution or another of the above-mentioned remedies that has already been granted. For example, if a writ of execution is successfully obtained, this method of enforcement can be used to attach a debtor’s pension interest. This is done by application to the court on notice, and the financial institution that holds the policy must be cited. If successful, the court will order the financial institution to make payment of the debtor’s pension interest (or a portion thereof) basis if necessary. Garnishee order
regime, as explained in 2.3 Division of Assets . These orders can be granted by South African High Courts or regional (lower) courts. If a party fails to comply with a financial order (either maintenance or capital), there are various methods of enforcement, as follows: • a writ of execution; • an emoluments attachment order; • a garnishee order; • attachment of a pension, annuity, or other benefit; and • a contempt of court order. Writ of execution If a party has failed to comply with a financial court order, the offended party (creditor) can prepare a writ of execution to be issued by the court. This writ of execution is accompanied by an affidavit, setting out the facts relating to the breach of the order, and the court order must be attached. The writ of execution will be issued by the court without notice to the debtor and then served by a sheriff on the debtor. After service, the assets of the debtor will be attached in order to sat - isfy the debt. These assets can be any movable property (including bank accounts) or immov - able property. If a bank account is attached, the bank will be served with the writ, as well as a notice of attachment, and the funds held in the account will be frozen and then paid over to the creditor. If movables are attached, they will be removed and sold in execution to satisfy the debt. The attachment of immovable property is somewhat more complicated but, if successful, the prop - erty will be sold at auction.
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