How To Obtain A Garnishee Order In South Africa

Below is How To Obtain A Garnishee Order In South Africa

If a person or company wants to get an emoluments attachment order for debt repayments, their first stop would be the Magistrates Court. The court must be in the same area that the person who owes the money lives or works in. The application for a garnishee order in South Africa must include:

The relevant application form;

an affidavit that states who the debtor (the person who owes the money) is;

confirmation of the judgement made in favour of the creditor (the person or company who wants to be paid back); and

the full outstanding amount of debt and how much will be deducted every month

The garnishee and the debtor must be informed about the garnishee order in writing and receive copies, and the debtor must be given the opportunity to appear in court to show whether or not the debt is, in fact, legal. And if it is, how much they can afford to pay towards servicing the debt.

Take note: legally, the amount deducted from the debtor’s earnings cannot exceed 25% of their gross salary or wages, and they must be left with enough income to survive.

Is there a way of checking if a garnishee order is legal and valid?

Yes, absolutely. When the messenger of the court delivers a copy of the garnishee order to your employer, they must present the original order at the same time.  Both the original and the copy must include a case number, a stamp from the clerk of the court, a signature from an attorney, and all the debtor’s details (name, ID number, and employee number). You are legally entitled to ask your employer to see the copy of the emoluments attachment order at any time. 

Approach the Credit Ombuds to double-check if everything is in order.

In addition to requesting the information from your employer, be sure to take those details to the Credit Ombuds. They will tell you if the order is in line with the Credit Act if the correct interest rates and fees are being charged if the order is affordable; and if the garnishee order was issued by the proper court.  It’s important to know that even legally issued orders can result in incorrect amounts owed or fees charged. The Credit Ombuds would be able to get a full statement to check that everything is accurate. 

Should they find that the order was illegally obtained against you, the Credit Ombuds does have the authority to negotiate with the attorneys involved to have the order rescinded at their own cost.

Legal tip: If the garnishee order has not been issued by the correct court, it is automatically rendered null and void. What’s more, you are entitled to recover the full amount you’ve paid, plus interest, if the order is deemed invalid.

Can you challenge or dispute garnishee orders in South Africa?

Employees are not without rights and can challenge a garnishee order at the court where it was issued. According to the law, you dispute the amount if it appears incorrect or more than 25% of your earnings. Even if the amount deducted is legal, it can still be challenged and potentially reduced if you are struggling to stay financially afloat or unable to pay maintenance, for instance.  You also have the right to receive a statement that contains all the details of the payments, i.e. how much has been received and what is still owed.  

There have also been cases of unethical lenders who bypass the Magistrates Court and get clerks of the court to issue garnishee orders in South Africa. Because of this, the amount owed, fees charged and deductions are not in compliance with the law. These orders are often taken out in courts that are not in the area where the borrower lives or works, which makes it difficult for the debtor to challenge. What’s more, even if the debt is fully repaid, the garnishee order isn’t canceled by the lender. 

Note: if a garnishee order against you has been issued by the clerk of the court, it is deemed unconstitutional and cannot be enforced. 

Other than the salary deductions, are there any other costs involved?

Because this is a legal process, yes, there are other legal costs involved, and often commission is paid to a debt collector. However, it is important to note that these additional legal costs cannot exceed the total amount of debt you owe.  For example, if you owe R10 000 and the charges are R12 000, you are only allowed to be charged R10 000. 

Can a garnishee order be cancelled or set aside?

It’s quite a process, but it is definitely possible. Firstly, the debtor can bring an application to the Court for the order to be set aside if you can justify it with “good reasons”, as included in the Magistrate’s Court Act. These would include: the debt has been paid in full, a big portion of the debt has been paid and, therefore, the amount claimed is too high or you never incurred the debt in the first place. Alternatively, the creditor would inform your employer to stop the garnishee order, once the debt has been paid. Remember, if the creditors do not inform your employer and they continue to make money off your salary, you can take legal action. 

How to prevent a Garnishee Order being issued in the first place.

As always- prevention is better than cure. So, it is all about managing your debt more efficiently. We know that garnishee orders are the last resort for most creditors, so being consistent with debt repayments is key. LAW FOR ALL understands that South Africans are under financial strain, so we’ve put together some Savvy Legal Tips to Help You Combat Debt. 

Are garnishee orders legal in South Africa?

The law is now stricter and only magistrates can issue garnishee orders. A garnishee order is limited to 25% of your salary and must leave you with enough salary to live on you may have heard of stories where garnishee orders were so high that there was little, or no salary left after they had been deducted.