Garnishees/Emolument attachment orders

[Yakkie7]

Good Morning
I would like to find out the procedure for emolument attachment orders.A member of my family received his pay slip and was surprised to discover that R800 was deducted from his salary for an emolument attachment order.He is aware that he is in arrears with an account, but he was not consulted for the deduction to be made and he cannot affored to pay R800 per month.His employer has deducted the money without letting him know about it.Please advise what he can do about this.

[sterne.law@gmail.com]

Good Morning
I would like to find out the procedure for emolument attachment orders.A member of my family received his pay slip and was surprised to discover that R800 was deducted from his salary for an emolument attachment order.He is aware that he is in arrears with an account, but he was not consulted for the deduction to be made and he cannot affored to pay R800 per month.His employer has deducted the money without letting him know about it.Please advise what he can do about this.

A garnish order is made by the court and the employer simply has to follow it. It is not for the employer to decide how much to deduct. The family member needs to approach the creditor and institution for relief on the amount. generally speaking the garmish order is taken because a party attempts to ignore making arrangements.
On an aside, in my view, it is poor manangement technique not to inform an employee that the company has received a garnish order.

[BBBEE_CompSpec]

A garnishee Order is only put in place when you have ignored the Summons. The Judgment Creditor applies for Judgment against you and the Court makes the Order to the relief that the Creditor seeks. If you did not defend yourself on the Summons then you will automatically get a judgment against you for failure to answer to your financial situation.

A Summons is a procedure for both parties to state their cases before a Magistrate. It is not a jail or death sentence. When you find yourself in dire straits it is safer to work with the courts than the creditor's attorney.

The only way out is to approach the Court or Judgement Creditor to work out a payback schedule. If this does not work then you can take the hard route and seek relief by checking whether the Judgement Creditor followed the rules laid down in the NCA.

[Yvonne]

Our company had a Emoluments Attachment Order delivered to us, there was no request for any signature of receipt, nor did the party delivering the document identify themselves as a messenger of the court. Had it been, surely a signature of receipt would have been requested?
The matter relates to a cellphone an employee purchased which did not function. He repeatedly tried to get it repaired with no success. Ultimately leaving the cellphone with "the company" (Don't at this time know which one)! He distroyed the simcard in the belief that this was all he needed to do for the cellphone company to "cancel" his package! and then ignored the account, believing himself to be absolutely in the right, as he had not had the cellphone nor could use it, so how could they make him pay? Understandable.

My question is this, the employee resides and works in Gauteng.
The emoluments attachment order is from a rural court in KZN. How on earth would an lowly paid employee have tried to defend himself in that court?

How can our company be sure that the proper legal process has been followed and that it is indeed fair. I am out of the country and can only send e-mails and I can be almost positive that any communication will be ignored by the cellphone company.

We tried to verify the court order with the court clerks, who after numerous telephone calls, eventually advised that the case number has been opened?
This does not confirm that it is all a genuine legal instruction.
The document is stamped with a stamp, but that is not a problem to get one made.

Our management have kept our employee informed constantly, he "knows" about the problem, but we are concerned that the full legal process has not been followed.

When the amount of the payment garnished is more than the employee can afford is there any way it can be reduced, or is it too late if the garnishing order is already granted? and if only through a process of a debt counsellor, is there any service provided at no charge for low wage employees.
His earnings are R5,500 per month and the payment is R500 a month. That is pretty tough! his total cost for ignoring - R 7,475.66 - What a lesson to learn.

I wonder how frequently this is happening, cell phone companies do not have a good record in dealing fairly with problems like this. I can understand that cellphones are fragile, but surely if the proof exists that the phone was not repaired, and that the client was not able and did not make any telephone calls should be addressed!

Yvonne

[Dave A]

I'd read this discussion on garnishee orders. It's pretty comprehensive.

[BigRed]

..... that R800 was deducted from his salary for an emolument attachment order.....

What we do is split the R800 bucks into four payments, R200 off each week on pay, and pay the full R800 over to the relevant parties... But as Dave said, full thread running on that topic

[Dave U]

Hi Yvonne

I refer you to section 65J of the magistrate's court act: (emphasis added)

(1) (a) Subject to the provisions of subsection (2), a judgment creditor may cause an order (hereinafter referred to as an emoluments attachment order) to be issued from the court of the district in which the employer of the judgment debtor resides, carries on business or is employed, or, if the judgment debtor is employed by the State, in which the judgment
debtor is employed.

Note that this refers to the location of your business, not the employee's location. If your business operates in Gauteng then an order issued from KZN is indeed invalid. But remember that this rule doesn't apply to judgement, which precedes the EAO being issued. In other words, be sure not to mix up the court where judgement was obtained with the court issuing the EAO.

I can't advise you on how to proceed further, as I'm not a lawyer. But you may want to inform the creditor (or the creditor's lawyer) that you are going to ignore the order due to it being invalid. They will then have to issue it from a court in your district. This will place the employee in a position to defend himself, and maybe also help in satisfying you that proper process was followed. More from section 65J:

(6) If, after the service of such an emoluments attachment order on the garnishee, it is shown that the judgment debtor, after satisfaction of the emoluments attachment order, will not have sufficient means for his own and his dependants' maintenance, the court shall rescind the emoluments attachment order or amend it in such a way that it will affect only the balance of the emoluments of the judgment debtor over and above such sufficient means.

So the amount can be reduced, but I honestly have no idea what the odds are.

Good luck!
Dave

[Yvonne]

Thanks Dave, I had no real question with the order as such, we have dealt with a few in the past.

I am just concerned from the aspect of not being positive this is all above board, given the order coming from KZN.

I loath unfairness in all its forms, and want to be very sure for our employees sake that he had a fair opportunity to dispute this debt.

He has been spoken to and admits he has had this problem, but just hangs his head when we ask him what he did to argue it. He just shrugs and shakes his shoulders and says "What can I do"?

Thanks for the replies, greatly appreciated.

Yvonne

[SarahS]

Hi
I work for a company in Pretoria and are involved with the garnishes - I would like to know up to what portion of a salary can a garnish be - I have some employees with more than one garnish and ends up to be more that halve their take home salary - where can I get more info on this

[BusFact]

My understanding is that the employee would need to go to the courts and have the judgements altered based on affordability. If they had attended the court hearing, they could have presented this information, however they tend to ignore these documents.

[sterne.law@gmail.com]

Hmmm, the judgement order from KZN seems rather strange. Even stranger is that no signature was requested when the documents were served. Does the order not have any details for the company or company's representative? If not it would appear to me that this is the cell phone company trying to make it look as if they have got a court order.
A judgement order needs to be signed by the clerk AND the creditor(or attorney thereof) and served as per any other process.

The order may be rescinded, suspended or altered on application to the court.

On an aside, 2 things which I do not remember being in any threads -
If the employee leaves your employ, you have to inform the creditor.
Secondly you may also deduct up to 5% from the monthly payment for costs.

[shaman]

the easiest way of removing a garnishee order is to make an application for adminstration......
you can contact me for further info...

[Dave A]

the easiest way of removing a garnishee order is to make an application for adminstration......

Just how does the adminstrator take charge of the financial affairs of the person under administration?

An old discussion on adminstration orders had me wondering.

[lion12]

hi,according to this topic isn`t there a legal procedure 1st to be followed like lawyers letters/demand letters?or can they just go ahead in first action issue a garnish order?and what about affordability?and what if the creditor does not want your payment arrangement and insists u make a loan to pay them?

[Justloadit]

I am no expert here, but by the time the garnishee order has been issued, all the legal routes have been followed. A magistrate decides what is affordable, and is not something decided by the creditor.

The creditor can not insist on the employer giving a loan to cover the outstanding amounts, and if they tried that with me, I will simply tell them to pi$$ off.

It is a huge responsibility on the employer to make the payment, as it is an offence to have taken the money from the employee and not have paid it over to the attorneys.