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Debt Collection: Will the real Garnishee Order please stand up

16 March 2005 13 Comments

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.

Tags: credit law, credit management, debt collection

13 Comments »

  • Russel said:

    need to check how does the payment is finalised meaning that how does one knows how much at the end will pay as there are legal costs,tracing costs and a whole of other costs this confuses me as i am working with payroll

  • conrad Jardine said:

    Hi
    I’ve got an acknowledgement of debt signed by the person owing me 10 000 rand. He did not pay on the due date and continue to make promises. I know that he has commission due to him.
    Can I as an individual institute a Garnishee order against that commission, or should it be via a company.
    And how do I get the company that will be paying the commission to the person that owes me the money cooperate with the garnish order?

    Thanks and awaiting your wise reply
    Conrad

  • M Moodley said:

    Hi Conrad

    Kindly advise if you received a response on your query, as I am in the same situation with someone who owes me money..

    Thanks
    M

  • Brett Bentley (author) said:

    To both of Conrad and M Moodley, it would all depend how much about the law you know, if you want to do it yourself.

    You need to institute action( a summons)and then take judgment before you can make an application to court for a garnishee or Emoluments Attachment Order.

  • taahir said:

    Hi, I received a garnishing order for an unpaid debt by one of my employees. Upon receipt of this, the employee has absconded. Thus, there is no amount owing to her from me. What do I do about the garnishing order?

  • Brett Bentley (author) said:

    taahir, you must advise the attorney acting for the creditor who got the emoluments attachment order, or if there is no attorney the creditor of the fact that the employee has left your employ and their new work details if you know that.

  • Marie said:

    i need to understand garnishee so that i can be free in this, i am responsible of managing garnishee in my company my problem is that some debt collectors give us opening balance and the closing balance that is understandable, the problem is some they don’t want to give us the closing balance they keep on puting more thing every month. they charge telephone calls, faxed receive and some interest that we don’t know about it, if i call them and ask what that interst for they say is according to the law. What i really want to know what is that how garnishee works and what is the procedure and is there any different of collecting garnishee between the debt collectors

    please help me i realy what to help all those people who owes the debt collectors.

  • Emma said:

    Hi

    I would like to know if there is a garnishee act? Is and employer leagally bound to deduct and pay the money over to the debit collectors? Please can you advise it there is a website that I can google?

    Thanks

  • Brett Bentley (author) said:

    Emoluments Attachment orders are governed by Section 65 of the Magistrates Court Act.

    We will be shortly putting up another article explaining the details.

  • Employer’s Guide to Employment Attachment Orders | Bentley Credit Management said:

    […] attachment orders, commonly referred to as garnishee orders, are governed by Section 65J of Magistrates Court Act 32 of […]

  • Michelle said:

    Can the employer insist on an attachment order delivered to our offices or are we obliged to accept a faxed copy thereof?

  • Brett Bentley (author) said:

    The emoluments attachment order should be properly served by a sheriff of the court.

  • Cherie said:

    I’m currently employed at an attorneys office and I work in the Garnishee dsepartment. According to my knowledge, if an Emoliuments Attachment Order was granted and served, the employer is responsible for deducting the installment from the employees salary and pay it over to the company that had the EAO served. Failure to do that, will cause the company to go forth and request a warrant for execution against the employer. This means that the Sheriff of the court goes to the place of employment and writes up the employers assets and it may be sold on auction to pay off the employees debt. I would advise any employer to start with deductions as soon as the EAO was served, in order to prevent this. The employer is also allowed to keep 5% of the installment deducted for administrational purposes. For example: if the installment is R100 per month, the employer HAS to deduct R100 from the employee but may keep R5 and only pay R95 over to the company.

    I hope this info helps. :)

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