An estimated nine million South Africans are currently in debt, according to the National Credit Regulator.
In addition, an about three million of all employed South Africans are in debt. South Africans, who are drowning in debt and falling behind with their payments, could find themselves on the receiving end of a garnishee order.
What is a garnishee order?
A garnishee order is a court order that is served by the sheriff (or messenger) of the court on the employer ordering the employer to make deductions from an employee’s salary or wage in settlement of a debt owed by the employee to a third party creditor.
A specified amount of money is deducted from the employee’s salary or wages each time the employee is paid until the debt owed by the employee has been paid in full.
A court will only make such an order when it is satisfied that there is a valid underlying debt, there has been a valid written consent to the order being taken or the court has previously made an order instructing that the debtors (employee’s) salary or wage be attached.
How much can be deducted?
The amount to be deducted from the salary or wage must be clearly set out in the garnishee order.
The judgment creditor (the person who lent the money) is able to claim the following:
- The full amount of the money loaned, less payments already made by the employee.
- Interest on the outstanding balance and costs incurred by the judgment creditor to collect the money.
- Sheriff’s fees.
Determining if a garnishee order is valid
A genuine garnishee order is an order by the court. It is served by the messenger of the court, also known as the sheriff, on the employer. The sheriff will show the employer the original order and a copy is left with the employer.
The original garnishee order must contain the following:
- A case number.
- A stamp from the clerk of the court.
- Signed by the attorney.
- Full name as well as identity number or staff number of the employee.
Employee’s rights
When a garnishee order is granted in respect of an employee, he is not without rights. An employee has the following rights:
- To dispute the amount claimed if it appears to be incorrect.
- To apply to court to reduce the amount of the order when the employee is unable to meet his and his dependents maintenance costs.
- To be furnished, by the creditor or his attorney, free of charge, with a statement containing particulars of payments received up to the date concerned and the balance owing.
Setting aside the order
So what do you do if you believe you don’t owe the money at all or the amount claimed? The Magistrate’s Court Act provides that an order can be set aside if a good reason can be shown to do so.
Good reasons would be:
- You have already paid the debt.
- You have paid a portion of the debt and that the amount claimed is too high.
- You never incurred the debt. It would be necessary to go to court to have the order set aside.
* Marilyn Williams Registered Debt Counsellor
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