Garnishee Orders

  • 1

    What is a garnishee order?

    To put it simply, a garnishee order is a legal notice that allows a creditor or third party to recoup or retrieve funds from a debtor by means of a deduction from their salary or other sources of income. This means that your employer will pay your credit providers before your salary is paid to you. This also means that the creditors can retrieve their money from those who owe their debtors, as legally those finances are due to them. In this case it is a court order to the debtor directly, with no specified source, which is different to the emolument attachment order.

  • 2

    What is an emolument attachment order (EAO)?

    While under a different name, this is in essence the same as the garnishee order, with one subtle difference. An EAO is specifically aimed at the debtor’s employer. This allows for the creditor to recoup owed funds by directly taking it out of the debtor’s monthly salary, taking out the debtor as the middleman, in a sense.

  • 3

    What does it mean for you?

    If a judgment has been granted by the court and the debtor has not paid in time, a creditor can apply for an attachment of debt, allowing them to recoup their lost money. The application process requires an affidavit to be provided as well as supporting documentation that proves the situation and judgment of the court. The application must be processed at a court within the district of the debtor’s residence or employment. Once the court has inquired as to the financial position of the debtor, including their dependents and financial needs, the court may then order payment in reasonable installments to the creditor.

  • 4

    What are the legal implications of a garnishee order?

    As a court judgment, the garnishee order may be enforced accordingly as a warrant of execution – this warrant means a bailiff of the court or in simple terms, a legal officer has the power to go to the debtor’s address and recoup goods to the value of the needed amount. The debtor can dispute the liability, however, this would require them to appear in court and show cause as to why the debt should not be paid.

  • 5

    Can the order be halted?

    The court has the power to not only rescind (or cancel) the order, but also to amend and suspend the judgment of the order. However, the court is forced to cancel or amend the order if the debtor does not have the means to support themselves and their dependents and pay their debt as well.

    Whether creditor or debtor, there are implications for both sides which allows the debt to be resolved as soon as possible.

  • 6

    The new law on garnishee order

    In 2016, the Constitutional Court declared that the management of the garnishee order and that decisions of whether a salary should be attached by a garnishee order cannot be made by a clerk of the court, instead that decision is now put to the magistrate who should firstly look at whether it would be just and equitable to grant the EAO and whether the debtor would be able to afford it.

  • 7

    How to cancel a garnishee order

    A garnishee order can be rescinded (or cancelled) based on these grounds:
    Lack of jurisdiction;
    The judgement debtor did not consent to the issuing of the EAO or garnishee order and the court did not authorize the order;
    The judgement debtor was not duly notified.

  • 8

    How long is a garnishee order valid for?

    Before an emolument attachment order can be granted, a judgement would have been issued, which is valid for 30 years.

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    Can a garnishee order be stopped?

    A garnishee order can only be stopped by an application at the court to have the order stopped. It can also be stopped if the judgement creditor informs the employer or garnishee that they no longer need the money to be deducted from your salary.

What is a Garnishee Order?

What is a garnishee order and how does it work?

When you are in financial trouble, debt counselling can provide you with a solution that can help you find your way back to financial stability and with a Constitutional Court’s ruling earlier this year, the garnishee order as we know it could be a thing of the past.

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Emoluments Attachment Order

Reckless Lending: no to the garnishee order

Reckless lending is taking knocks, left, right and center

Reckless lending is a huge financial burden on some and is still prevalent across South Africa today. This occurs when credit providers enter into a credit agreement and the debtor does not have the means to pay back the amount. Never mind covering the cost of living expenses.

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The Sad Truth About Garnishee Orders

The Sad Truth About Garnishee Orders. – The cost of living has become very high over the years, with people still on the same salary. With the ever increasing inflation rate, people are neck deep in debt to make ends meet. Most people take out a number of small loans with the intention to pay them back quickly. But we all know most of the time that never happens! When you are running low on funds and apply for a loan, any offer looks good, since it will solve the problem at that moment, and people often disregard the exorbitant rate of interest. Continue reading

What Does the Landmark Garnishee Judgment Mean for Consumers?

A Constitutional Oversight 

You may have come across the Stellenbosch Legal Aid Clinic’s (LAC) landmark garnishee application and Judge Desai’s widely applauded ensuing judgement. Voraciously covered by the media, the high court case, relating to emolument attachment orders (EAOs), informally termed ‘garnishees’, dramatically unfolded in the Western Cape High Court on 8th July 2015, culminating in a resounding ‘victory for the poor’. Continue reading

Consumer Victory! EAOs / Garnishee Orders Ruled Unconstitutional in Groundbreaking High Court Case

EAOs aka Garnishee Orders Ruled Unconstitutional

Yesterday, July 8, 2015 marked a groundbreaking victory for South African consumers, as High Court Judge, Siraj Desrai ruled in favour of 15 consumers represented by the Stellenbosch Legal Aid Clinic (LAC), in the high-profile court battle over Emolument Attachments Orders (EAOs). Continue reading