Understanding Garnishee Orders in South Africa

A garnishee order, formally known as an Emoluments Attachment Order (EAO), is a court order that instructs your employer to deduct money directly from your salary to pay off a debt you owe. It is a powerful legal tool used by creditors to collect on a judgment debt.

How Does a Creditor Get a Garnishee Order?

A creditor cannot simply decide to issue a garnishee order. They must follow a strict legal process:

1. Obtain a Judgment: First, the creditor must sue you for the debt and be granted a judgment by a court. This means the court has legally confirmed that you owe the money. You must have been served a summons as part of this process.

2. Affordability Assessment: The creditor must then demonstrate to the court that after the deduction, you will still have enough money left to cover your essential living expenses and support your dependents. The court must be satisfied that the order is "just and equitable."

3. Court Grants the Order: A magistrate must review the application and, if they agree, issue the Emoluments Attachment Order. This order is then "served" on your employer (the garnishee).

Once your employer receives the order, they are legally obligated to deduct the specified amount from your salary each month and pay it over to the creditor or their attorneys.

Your Rights and Protections

The process for obtaining garnishee orders was historically abused, leading to significant reforms to protect consumers. You have important rights:

• Jurisdiction: The order must be issued by a court in the district where you live or work. An order from a court in a completely different province may be invalid.
• Proper Service of Summons: You must have been legally made aware of the initial legal action (the summons). A judgment obtained without your knowledge because the summons was sent to the wrong address, for example, can be challenged.
• Affordability Must Be Considered: The amount deducted cannot be so large that it leaves you unable to survive. The court must consider your financial situation.
• The Debt Must Be Valid: The underlying debt for which the judgment was granted must be legally valid (e.g., not prescribed).

Invalid Garnishee Orders

Many garnishee orders have been found to be invalid and unlawful due to abuses in the system. An order may be invalid if:

• You never received a summons.
• Your signature was forged on the consent to judgment.
• A clerk of the court issued the order instead of a magistrate.
• No financial assessment was done to see if you could afford the deduction.
• The interest rates or fees being charged are unlawfully high.

What to Do If You Have a Garnishee Order

1. Get the Documents: Request a copy of the garnishee order and the original judgment from your employer's HR or payroll department.

2. Analyze the Order: Check the details carefully. Which court issued it? When was it issued? Who is the creditor? What is the original debt amount?

3. Seek Legal Advice: If you believe the order is invalid, or if the deduction is making it impossible for you to live, you must seek legal assistance. An attorney or a legal aid clinic can help you apply to the court to have the order reviewed and potentially rescinded (cancelled) or amended.

4. Do Not Ignore It: A valid garnishee order is a legal instruction. Your employer must comply with it. The only way to stop it is to challenge its validity in court.

Garnishee orders are a serious matter, but the law provides clear protections for debtors. If you are facing one, understanding the rules and seeking help is the first step to resolving it.