Garnishee order explained in legal terms
In South Africa, a garnishee order is a legal court order issued by a Magistrate’s Court compelling a third party (the garnishee) to pay a debt owed to the debtor to the creditor instead. Here’s a breakdown of the key aspects of a garnishee order in legal terms:
Parties Involved
- 📌 Debtor: The person who owes the money (judgment debtor).
- 📌 Creditor: The person or entity to whom the money is owed (judgment creditor).
- 📌 Garnishee: The third party holding the money owed to the debtor. This could be:
- ☑️ The debtor’s employer
- ☑️ A bank holding the debtor’s funds in an account
- ☑️ Any other entity holding a debt owed to the debtor (e.g., a tenant owing rent)
Purpose
The primary purpose of a garnishee order is to provide a mechanism for creditors to recover debts owed to them by attaching and redirecting funds owed to the debtor by a third party. This can be a powerful debt collection tool as it bypasses the debtor’s ability to control the payment of the debt.
Legal Basis
Garnishee orders are authorized by the Magistrates’ Court Act (Act No. 32 of 1944) specifically Section 49. This section empowers the court to issue an order attaching debts owed to a judgment debtor for the purpose of satisfying a judgment debt.
Process for Obtaining a Garnishee Order
☑️ 1. Judgment Awarded: The creditor must first obtain a judgment against the debtor in a Magistrate’s Court. This judgment establishes the existence and amount of the debt owed.
☑️ 2. Garnishee Notice: The creditor then files an application for a garnishee order with the court, identifying the garnishee and the nature of the debt they hold for the debtor.
☑️ 3. Court Order: If the court is satisfied that the requirements are met, it will issue a garnishee order directing the garnishee to pay a specified portion of the debt owed to the debtor directly to the creditor. The order will typically specify the amount to be deducted and the duration of the garnishment.
Limitations and Considerations
- 📌 Not all Debts: Garnishee orders cannot be used to recover all types of debts. For instance, they cannot be used for maintenance orders (child support or spousal maintenance).
- 📌 Exemptions: There are certain exemptions protecting a portion of the debtor’s income from garnishment. This ensures the debtor has sufficient funds to meet basic needs.
- 📌 Following Due Process: The legal process must be followed to obtain a valid garnishee order. The debtor has the right to appear in court and potentially object to the order.
Importance of Legal Advice
Both creditors and debtors facing garnishee orders are advised to consult with a lawyer specializing in debt collection or civil litigation. A lawyer can ensure the legal process is followed correctly, advise on the options available, and protect your rights throughout the process
