Garnishee orders and in duplum

[Citizen X]

Hi Vanash - thank you for your very erudite reply. I must confess, however, that my eyelids started to droop about half-way through your explanation (my problem, not yours).

In a nutshell are you saying that the In Duplum rule exists but has not yet been tested in a court of law - and that if it is, there is ambiguity enough for it to not apply?

A very good after to you Mike
The in duplum rule has been codified in terms of section 103 of the NCA, however, I beleive that section 103 in it's present form doesn't give effect to the true intention of the legislators(Those 400 people in Parliament), I believe that if challenged by sound counsel in court supported by case law, we just may find a situation where the regulations are relaxed. The only problem with this approach is that you ideally need a team of legal parctitioners who trult care about the welfare of South Africans and are willing to take on a matter such as this pro bono. Another way, is for any South African to simply write to the SALRC and state these concerns. They may be the only body which can convince Parliament that the mentioned sections are not in line with the legislators true intentions..

[Dave A]

Probably as good a place as any to point out that a portion of the NCA has been ruled unconstitutional. Not the portion under our scrutiny here, unfortunately - but food for thought.

[Mike C]

How is it possible to put an Act into law when parts of it are unconsitutional? This government never ceases to amaze me!

[Richard S]

Today I was contacted by a firm of attorneys who told me that they had been trying to speak to me for two months but had been fobbed of by my receptionist. It appears that a garnishee order was served on her in September 2013. On my request the legal firm has furnished me with copies of the garnishee order which states that the order was served on me and that all the details were explained to me. This is untrue and I have no knowledge of the matter whatsoever. They are demanding that I pay them all the outstanding amounts within 10 days or they will proceed with a warrant of execution against my business. They do not have a signed copy of the order and claim that it is not necessary to obtain a signature when serving an order. This does not sound right to me - if the messenger states that he has spoken to me then he is a liar and the the whole process must surely be fraudulent.

I have no problem paying over the money and deducting it from the employees salary, but I do not like being threatened with legal action about something I have no Knowledge of and is based on the fraudulent action of a messenger of the court. (The employee has admitted that she does owe the money and has been giving them the runaround to avoid me deducting money from her).

Can anyone offer any advice? Vanash perhaps?

[Citizen X]

Today I was contacted by a firm of attorneys who told me that they had been trying to speak to me for two months but had been fobbed of by my receptionist. It appears that a garnishee order was served on her in September 2013. On my request the legal firm has furnished me with copies of the garnishee order which states that the order was served on me and that all the details were explained to me. This is untrue and I have no knowledge of the matter whatsoever. They are demanding that I pay them all the outstanding amounts within 10 days or they will proceed with a warrant of execution against my business. They do not have a signed copy of the order and claim that it is not necessary to obtain a signature when serving an order. This does not sound right to me - if the messenger states that he has spoken to me then he is a liar and the the whole process must surely be fraudulent.

I have no problem paying over the money and deducting it from the employees salary, but I do not like being threatened with legal action about something I have no Knowledge of and is based on the fraudulent action of a messenger of the court. (The employee has admitted that she does owe the money and has been giving them the runaround to avoid me deducting money from her).

Can anyone offer any advice? Vanash perhaps?

Hi Richard,

I’m happy to lend perspective wherever I can. Suffice to say it, on matters such as these, input from the TFSA community will paint a much bigger picture that I alone can paint.
Before I get to the crux of your question, I’d like to highlight the situations which would lead to an emolument attachment order and thereafter the garnishee order. We’ve already established previously that the ‘Garnishee,’ is the employer and not the employee. We’ve already established previously that an emolument attachment order is governed by section 65(j) of the Magistrates Court Act 32 of 1944(as amended) and court rule 46, we also established that the ‘garnishee order,’ is governed by rule 47

1. The three reasons when a garnishee order is granted: Firstly and most commonly, the debtor has unknowingly or unwittingly consented to judgment(so no summons needs to be sued out), secondly, summons has been sued out, but the debtor has not entered an appearance to defend and thirdly summons has been sued out and the debtor does enter an appearance and eventually a plea on merits but has no valid defence. Inability to pay is not a valid defence, valid defences include denial that the money is owed and proof of the same or a special plea of prescription which would destroy the entire action;

2. So, one must already have the status of ‘Judgment creditor,’ this means that one has already obtained judgment;

3.Here’s is where it gets interesting, a Debt Collector(someone who is not an attorney), may not represent anyone in court whatsoever and may not be classified as the judgment creditor or sign as the judgment creditor UNLESS, the debt has been ceded to them, in which case, they must state so, in a letter of demand to the Judgment debtor. So a debt collector may not obtain an emolument attachment order or a garnishee order UNLESS they instruct an attorney to do so!

4.Here’s where it gets even more interesting, The Emolument attachment order must be served on both the garnishee(the employer) and the judgment debtor(the employee) by a court messenger such as the sheriff of the court.
Any emoluments attachment order shall be prepared by the judgment creditor or his attorney, shall be signed by the judgment creditor or his attorney and the clerk of the court, and shall be served on the garnishee by the messenger of the court in the manner prescribed by the rules for the service of process.[1]
An order made under sub-rule (5) shall be served upon the garnishee and upon the judgment debtor and shall operate as an attachment of the said debt in the hands of the garnishee.[2]

Emolument attachment order(See attached): form 38[3]

Unfortunately, a warrant of execution may be issued against the garnishee(the employer) if he/she it(juristic person), does not comply with the order

An emoluments attachment order may be executed against the garnishee as if it were a court judgment, subject to the right of the judgment debtor, the garnishee or any other interested party to dispute the existence or validity of the order or the correctness of the balance claimed.[4]

Garnishee Order(See attached)[5]

Where you justifiably feel that an attorney has acted in dishonourable manner, you may complain to the law society.

Always find out if the person who contacted you is a debt collector or a debt collector attorney as a debt collector is not allowed to do many things!!!

---

[1]Section 65(J)(3) Magistrates Court Act 32 of 1944

[2]Court rule 47(7)

[3] Department of Justice:
http://www.justice.gov.za/forms/form_mcr.htm. Accessed 18 January 2013

[4] Section 65(J)5

[5] Department of Justice:
http://www.justice.gov.za/forms/form_mcr.htm. Accessed 18 January 2013

[Richard S]

Hi Vanash,
Thanks for your valued and detailed input, it is much appreciated. But, seeing that the order was never served on me, surely it has no standing?

[sterne.law@gmail.com]

Ask for the case number and papers from whence the order came. Do this in writing.
Where a court process, of any sort, occurs, then service is required. A judgement can be rescinded if you show service was flawed (every person must have the chance to defend themselves.)
Service on a business need not be served on the owner.

Your letter may want to indicate, that you have no knowledge, and you respect court process. Further, that the threat to execute is noted, but should be held in abeyance whilst you and they seek to resolve, and if they proceed then you will have no option but to oppose them with vigour, a waste of court time and costs.
Therefore kindly provide the case number so that you can peruse the court file, in the alternative they can facilitate the process by forwarding a copy of the court file.
If it's not genuine then you may see a scampering, and it would be worth persuing with the law society.

Of course, if it is genuine, then it may require some negotiating with attorneys and / or employee if the amount in arrears is large.

[Citizen X]

Ask for the case number and papers from whence the order came. Do this in writing.
Where a court process, of any sort, occurs, then service is required. A judgement can be rescinded if you show service was flawed (every person must have the chance to defend themselves.)
Service on a business need not be served on the owner.

Your letter may want to indicate, that you have no knowledge, and you respect court process. Further, that the threat to execute is noted, but should be held in abeyance whilst you and they seek to resolve, and if they proceed then you will have no option but to oppose them with vigour, a waste of court time and costs.
Therefore kindly provide the case number so that you can peruse the court file, in the alternative they can facilitate the process by forwarding a copy of the court file.
If it's not genuine then you may see a scampering, and it would be worth persuing with the law society.

Of course, if it is genuine, then it may require some negotiating with attorneys and / or employee if the amount in arrears is large.

This is what I mean by 'painting a bigger and better picture!"

[sterne.law@gmail.com]

Ironically the Saturday Independent had an article on garnishes orders.
In short an employer (an attorney) has employee. She took a loan with a Cape Town company, lives and works in Case Town.
The loan company, based in CT, uses an attorney in Nelspruit and surrounds, to do collections. They issue summons from the Gautend province, clearly to make it difficult for the debtor to defend.
There would be no basis for jurisdiction in Nelspruit. The company claims they rely on the attorney to be doing things properly etc, etc. Who looks for an attorney that's 1600km away?
The employer wrote to issuing attorneys and company. They dropped everything. Given that the amount was R25000, it is quite clear they know they are horribly wrong, acting intentionally and want this to go away. No doubt they will continue.

[Richard S]

Good morning to you both, your input was enlightening, to say the least.

In this instance the case is legit, everything done in Cape Town and in an email from the employee to the firm of attorneys she has acknowledged that she owes the money. All the relevant correspondence was emailed to me late on Friday afternoon.

I am surprised to discover that I - or my business - is the garnishee, the sheriff needs no proof that the order was served, and that this could occur without my knowledge. And that I only found out about it four months later.

Despite the fact that the court order is addressed to the wrong firm(a business next door) and that the order states that the sheriff served the attachment order on me personally( named in the Court Order ) which is absolute BS, I will probably comply with it. It would simply be a waste of everybody's time and money to fight it on technicalities which can be corrected and the whole process would in any case repeat itself.

But I thank you for your input.