Emolument Attachment Order for Arrear Maintenance

Having a Maintenance Order does not always guarantee payment. If payments fall into arrears, you may need to look into the various methods of enforcing the Maintenance Order. Section 26(1) of the Maintenance Act 99 of 1998 ('the Act') sets out three enforcement mechanisms available to a maintenance beneficiary once a debtor has failed to pay: execution against property, attachment of emoluments, and attachment of debt.[1] This article looks more closely at one of these mechanisms – the Emolument Attachment Order ('EAO') – provided for in section 28 of the Act.

An EAO allows arrear maintenance, together with interest, and future maintenance payments to be deducted directly from the debtor's salary and paid over by their employer.[2] The order directs the employer to make the specified payments from the debtor's emoluments until the arrear amount, interest and the costs of the attachment have been paid in full.[3] This remedy is not limited to an ordinary salary – the Act specifically provides that pensions, annuities, gratuities, and similar benefits may also be attached to satisfy a maintenance order, despite anything to the contrary in any other law.[4]

The Order remains in force until an application is made to the court to suspend, amend or rescind it.[5] Such an application may be brought by either party on good cause shown, but the party applying must give the other party at least 14 days' written notice of their intention to apply before the hearing date.[6] At the hearing, the maintenance court may call on either party to lead evidence, whether in writing or orally, in support of or in rebuttal of the application.[7]

A maintenance beneficiary may apply for an Emolument Attachment Order when:

1. a Maintenance Order already exists;[8] and

2. the maintenance debtor has fallen into arrears for a period of ten days from the date the amount became due and payable.[9]

The court will not, however, grant an EAO in every case. If the maintenance debtor has appealed the underlying Maintenance Order and payment has, as a result, been suspended pending that appeal, the court cannot authorise an EAO.[10] Similarly, if the court already made an automatic order at the time the original Maintenance Order was issued, directing a third party – such as a pension fund administrator – to make periodical payments on the debtor's behalf, a further attachment order under section 28 will not be granted.[11]

The Act also provides that the application must be made in the prescribed manner, specifically accompanied by the following documents:

• a copy of the existing Maintenance Order;[12] and

• an affidavit outlining the amount in arrears.[13]

Once granted - serve on the employer

Once the court grants the EAO, the maintenance officer must, within seven days of the order being made, or whenever it is afterwards required, serve a notice, together with a copy of the order, on the debtor's employer, directing the employer to make the payments specified in the notice.[14] The employer must give these payments priority over any other court order requiring payment from the same emoluments.[15] Should the debtor leave the employer's service, the employer must notify the maintenance officer of this within seven days of the debtor leaving.[16] If the employer fails, without sufficient cause, to make the payments as directed, the order becomes enforceable against the employer directly, and the employer may also be guilty of an offence, punishable on conviction by a fine or imprisonment for a period not exceeding two years.[17]

Since we go over and above, here at LVA, we would also request the following documents from you to better ensure the Order is granted:

• bank statements showing proof of non-payment;

• a copy of your Identity Document; and

• any correspondence relating to maintenance payments.

With the above documentation we can complete the 'J306E – Application for Enforcement of Maintenance or Other Order' form and lodge the application on your behalf.

Contact us on 011 431 4117 today.

Nomalanga Langa

LLB

Candidate Attorney at Le Roux Vivier Attorneys

Disclaimer: The views expressed in this article are those of the author(s) and do not necessarily reflect the views of the firm. This content is provided for general information only and does not constitute legal advice. While every effort is made to ensure accuracy, the law may change and its application depends on the specific facts of each matter. Readers should seek professional legal advice before acting on any information contained herein. The firm and the author(s) accept no liability for any loss or damage arising from reliance on this content.

[1] Maintenance Act 99 of 1998 s26(1).

[2]The Act s28(1).

[3]The Act s28(1).

[4]The Act s26(4).

[5]The Act s28(2)(a).

[6]The Act s28(2)(b).

[7]The Act s28(2)(c).

[8]The Act s26(1)(b)(ii).

[9]The Act s26(2)(a).

[10]The Act s26(3)(a).

[11]The Act s26(3)(b), read with s16(2).

[12]The Act s26(2)(b)(i).

[13]The Act s26(2)(b)(ii).

[14]The Act s29(1).

[15]The Act s29(3).

[16]The Act s29(2).

[17]The Act s29(4), read with s38.