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Thread: garnishee order for my domestic worker

  1. #21
    Platinum Member sterne.law@gmail.com's Avatar
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    Quote Originally Posted by tec0 View Post
    Well that is why I learned to use systems like Consumer counsel, CCMA and the NCR along with a few others. See if your facts are right and according to the laws and with the added advice of the above mentioned it has been my experience that you get stuff done faster thus limiting your costs to the absolute minimum.

    Unfortunately the case and point is made. Lawyers are expensive and it is because of this “system” that people don’t seek justice.
    A further point of serving summons - the original requirement was it ahd to be served on the party. This originated by being tapped on the shoulder. Over time, this changed and summons could get served on anyone. the law also needs to provide for the avoidance of receiving documents, hence the thinking that a paper must be signed for is incorrect. A party that shows every effort was made to notify the other party has done their part and the matter can continue. This is logical as other wise a person could be on the run at all times.
    With direct reference to garnish orders, if the employer is preventing the service, they are not helping the employee. The extra costs will just be added on to the employee's account.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

  2. #22
    Platinum Member desA's Avatar
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    Quote Originally Posted by sterne.law@gmail.com View Post
    Non attendance in any court matter does not stop proceedings. Proceedings still require that all process has been followed.
    A party can get a order changed by going to court and making application and explaining. Of course this needs knowledge or money for attorney, so again kinda tough.
    As to the address, every contratc will place on obligation on you to inform of new address etc.
    You see, the system is still flawed. Thought so.

    What the loan-sharks do is to serve the papers based on the address written on the original contract documents & do not generally bother to follow up on address changes, even if they are in their system. It is to their advantage to not have the debtor show up in court.

    A matter of this nature should not proceed until all the relevant parties are in the court.
    In search of South African Technology Nuggets(R), for sale & trading in South East Asia.

  3. #23
    Platinum Member sterne.law@gmail.com's Avatar
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    Quote Originally Posted by desA View Post
    You see, the system is still flawed. Thought so.

    What the loan-sharks do is to serve the papers based on the address written on the original contract documents & do not generally bother to follow up on address changes, even if they are in their system. It is to their advantage to not have the debtor show up in court.

    A matter of this nature should not proceed until all the relevant parties are in the court.
    It works both ways - unforunately there are circumstances where the debtor is hiding and or running. I would say that we need to get to the root of the problem and that is the loan sharks. They are preying on the vulnerable and often less educated. They blatantly disobey the laws, it is not even as if they cover it up with some clever Higleying(sorry could not resist). Actually now that I think of it, many if not most, actually get the employee to sign the garnish order when they apply for the loan. Sh^&t now that I remember that it really is a poor indictment. Yes, get to the root.
    Perhaps teh consumer protection act will see someone take thsi as an issue or perhaps an employers organization (Dave)
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

  4. #24
    Email problem daveob's Avatar
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    Quote Originally Posted by sterne.law@gmail.com View Post
    cover it up with some clever Higleying
    Watching the ships passing by.

  5. #25
    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by sterne.law@gmail.com View Post
    ...or perhaps an employers organization (Dave)
    I'm hoping to see daylight by the end of the month - still getting this year's crop of new systems bedded at work.
    Quote Originally Posted by desA View Post
    What the loan-sharks do is to serve the papers based on the address written on the original contract documents & do not generally bother to follow up on address changes
    Any order granted in those circumstances would easily be overturned, then - and probably with a favourable cost award too.

    And talking of costs, legal costs have become a serious obstacle to access to justice nowadays, don't you think? I mean how the heck could McBride run up R10 million in legal costs defending a drunk driving charge? I guess that means it takes R1 million to fight a parking ticket
    Quote Originally Posted by desA View Post
    A matter of this nature should not proceed until all the relevant parties are in the court.
    Then simply not turning up would be the ultimate defence
    Failure to respond is the most common reason these things end up in court in the first place.

    It's been a while since I last had a garnishee order issued on one of my staff. While it's really none of the employer's business - as Anthony points out the employer really doesn't have much choice in the matter - it doesn't hurt to run over how the matter arose if the employee is not exactly wordly wise in these things. The employee appreciates the effort and every now and then you'll actually be able to help them.

    In our last case, I ran over the deal that had got the employee into trouble and the insurance premium portion was higher than the payments for the goods. This was before the NCA, but the Financial Services Act was already in place - and I established that my employee was "advised" by the furniture store's sales rep who was not an accredited financial advisor.

    A rather short letter to the creditor pointing out this problem, followed by a telephone call and I'd negotiated the return of the goods as the end of the matter.

    I then told the employee to save what he would have been paying, and 5 months later + his Christmas bonus he bought the same stuff for cash
    Last edited by Dave A; 11-Feb-10 at 09:13 PM.

  6. #26
    Platinum Member sterne.law@gmail.com's Avatar
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    You only spend R10 million on a defence when it is not your money!!!!Serious questions must be asked when Legal Aid is extended to people earning in excess of the R2000. McBride and Zuma in case. Then to make matters worse they may use what ever attorney with legal aid paying. Everyone else needs to qualify and then you must use the legal aid employed attorneys, no going to the most expensive lawyers in town.
    Their is no doubt that the legal system is far to expensive to have justice.
    As an example, a few months back we pleaded guilty and took a R20 000 fine for what was essentailly being in possesion of line fish, legitimat fish, but the invoice never had an address. Bottom line is it was cheaper to pay the fine thna defend the matter. This is happening all the time.
    As to the parking fine, Dave, you could probably put a defence together for R15000 and that presumes that the attorney does not keep postponing so as to get an extra few bob for the court appearance.(and of course not more than 3 phone calls to the attorney)
    Last edited by Dave A; 12-Feb-10 at 03:30 PM.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

  7. #27
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    A few interesting points were raised during this discussion.

    The first point, as I see it, is that there is a total misconception about the service of court processes, which include summonses, garnishee orders, etc.

    Let us begin with the summons as the first step.

    In most instances where the Plaintiff (let us refer to him as the Creditor) issues summons against the Defendant (the Debtor), the summons is issued at the last known address of the Debtor.

    In terms of most credit agreements and even normal contracts, there is a clause in the agreement which reads that the parties select a certain address as their domicilium citandi et executandi. This address is an address where notices in terms of the relevant agreement can be served on one another and also the address where the parties will accept delivery of any court processes that may be issued.

    There remains an obligation on either parties to inform the other of any changes in address.

    And this is usually where the trouble start, because now the Debtor has his goods that he bought, he has made a few payments, then he disappears and stop making payments, and then the Debtor expects the Creditor to do nothing or to incur costs to recover the arrear payments.

    Therefore, the Creditor is entitled to commence civil litigation by issuing summons at the address chosen by the debtor.

    Let us ignore the implications of the National Credit Act, as that is a totally new topic, and remember that not all agreements fall within the ambit and scope of the NCA.

    Then there is cases where you, as the Creditor sold certain goods to the Debtor, or where you have rendered certain services to the Debtor. If the Debtor did not settle the account for delivery of said goods or services immediately, the Debtor then owes you the money. You now take the precautions of taking all the contact details of the Debtor as you want to make sure that you know where you can find him if he does not end up paying your bill.

    Are you going to appoint tracers to trace or confirm the whereabouts of the Debtor before you issue summons against the Debtor? Or you you going to pass the available information on to your attorney with the instructions to immediately proceed with action as you have been waiting 6 or 9 or 12 months for the Debtor to pay the outstanding account?

    I can bet you that you will issue instructions that the attorney must issue summons at the last known address.

    The summons is then issued by the court, and the summons is then forwarded to the Sheriff for service.

    There is various manners in which the summons may be lawfully served on the Debtor, a few of which is personal service on the Debtor himself if he is at home at that particular time, or service on someone who is older than 16 and who seems to be in charge of the house or premises at that time, or by affixing it to the front door.

    The last mentioned manner of service will only be used by the Sheriff after he has attempted to serve the summons on 2 or 3 occasions prior to that,left messages for the Debtor to contact him, and the Debtor fails to reply to said notices.

    Now, in terms of the summons, the Debtor has now 10 days in which to file a notice of intention to defend, and to fight the claim of the Creditor.

  8. #28
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    The second step is to obtain judgment. Judgment can only be obtained in 2 ways.

    In the first place judgment can be obtained in circumstances where the Debtor has failed to defend the action as set out in the summons. This is known as default judgment, and is granted only when it can be proven that the summons was duly served (as set out in the previous post).

    In the second instance default judgment may also be granted where the debtor has received the summons, has gone to the Creditor's attorney, and signed an acknowledgment of debt in which he also consents to the granting of default judgment and even a garnishee order. This does not, however, happen too frequently as most Debtors choose the give their Creditors the roundabout.

    Lastly, judgment can be obtained after a full trial where the magistrate or judge made a ruling on the merits and legal issues in a case.

    In all the above cases the Debtor now becomes the Judgment Debtor, because a judgment was passed.

    The next step is the authorising of a warrant of execution.

    Once judgment is granted, the attorney will now proceed with a warrant of execution against the movable property of the Judgment Debtor. The Judgment Creditor may only proceed with warrant of execution against the immovable property of the Judgment Debtor where there is not sufficient movable goods to satisfy the judgment deb and costs.

    Said warrant is also served by the Sheriff in one of the manners as set out in the previous post. The warrant normally allows to the Sheriff only to attach the goods of the Judgment Debtor, which means the Sheriff make a list of the movable assets, and he also gives an estimated value of the goods if it was sold at an auction.

    This is done to allow the Judgment Creditor the opportunity to decide whether it is worthwhile to proceed with a sale in execution or not. If the value of the goods exceed the judgment debt and costs instructions will be given to the Sheriff to proceed with a sale in execution, and normally the proceedings would stop here.

    But, if the goods is not sufficient, what then?

  9. #29
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    Now the Judgment Creditor commences with a Section 65A(2) notice, which is a registered letter, addressed to the Judgment Debtor informing him that default judgment was obtained against him, and that he must contact the Judgment Creditor's attorney within 10 days to make arrangements for the settlement of the debt.

    If the Judgment Debtor fails to respond to this notice, application is made to court for a notice for the Judgment Debtor to appear in court in person to inform the court of his financial position and to make an offer to settle the judgment debt. This is the so-called Section 65A(1) notice, and must be served by the Sheriff on the Judgment Debtor.

    If the Judgment Debtor appears in court, he will inform the court of his financial position and he will then indicate a monthly installment, which is then made on order of the court. During these proceedings he will also consent that a garnishee order may be taken out against his salary.

    If the Judgment Debtor fails to appear in court, a warrant of arrest will be authorised, which will be executed by the Sheriff. At the next court appearance the Judgment Debtor will have to give reasons why he failed to appear on court, a financial investigation is done and an order is made, as described in the previous paragraph.
    Last edited by Dave A; 14-Feb-10 at 08:55 AM.

  10. #30
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    In conclusion, the Judgment Creditor has incurred certain expenses to enforce his claim against the Judgment Debtor, such as Sheriff's fees, which may be in excess of R2 000,00 depending on the circumstances, and legal costs, which may also be excess of R2 000,00 depending on the work done by the attorney.

    If at any stage from the services of the summons to the Section 65A(1) notice, it appears that the Debtor or Judgment Debtor has moved and the process could not be served, the procedure is suspended until such time that the Judgment Creditor traced the Judgment Debtor, whereafter the processes will be served on the new address.

    By the time a garnishee reaches the employer, you can be assured that the employee has had ample opportunity to defend the action, and to make arrangements regarding the settlement of the debt. If the costs are high, who is to blame for that - the Creditor or the Debtor?

    Regarding the costs incurred by the employer, the employer is entitled to costs equal to 5% of the monthly installment so as to cover his expenses.

    In other words, if the monthly installment is R100 which must be deducted from the salary of the garnishee employee, the full R100 must be deducted from the employee's salary. However, the employer will only pay R95 to the Judgment Creditor.

    And please remember that the first amount given in the garnishee order does not include further legal expenses, and that the employer will be given a new outstanding balance once the original garnishee amount has been settled.

  11. Thank given for this post:

    Dave A (14-Feb-10), IanF (14-Feb-10)

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