Debt Collection: Will the real Garnishee Order please stand up
The term “garnishee order” has caused some confusion in South African legal debt recovery. The average debtor and salary department mistake an emoluments attachment order for a garnishee order.
An emoluments attachment order is an order granted in terms of Section 65J of the Magistrates Court Act in terms of which an employer ( also referred to as a garnishee, hence the confusion) is ordered to make month deductions from a debtor’s salary and pay this to the judgment creditor or their attorneys.
The Garnishee order on the other hand is in terms of Section 72 of the Magistrates Court Act, which authorises an application to attach any debt owed or to become due to the debtor. This is a little used legal debt recovery tool that can be very effectively used by a judgment creditor. In fact it is so little used that my legal software supplier dropped in from their bank of precedents, much to my dismay.
I have used this a successful tool to attach amongst other:
commissions of debtors working on commission only,
the proceeds of a sale of property held by a conveyancing attorney,
money held in bank accounts, and
money owed for contract work done by the debtor.
Note that unfortunately the state is excluded from such attachments.
But in the right circumstances the little known “real” garnishee order can be used very effective in legal debt recoveries.