- Featured article by LAWYERS-ONLINE.CO.ZA
What is a garnishee order and how does it work?
A garnishee order can be defined as “a legal procedure by which a creditor can collect what a debtor owes by reaching the debtor's property when it is in the hands of someone other than the debtor”.
A garnishee order is an attachment of money against a third party who owes money to a judgment debtor.
If a debtor failed to pay money, in terms of a judgment, directly to the judgment creditor, a garnishee order may be applied for against the garnishee.
If a court has granted a judgment against the debtor and s/he failed to pay the money within the specified period of time, the creditor may apply to court for the attachment of a debt (the garnishee order).
The application includes an affidavit and supporting documentation such as proof of the judgment.
A creditor must make an application to a court of the district in which the garnishee resides, carries on business, or is employed within the district.
The debtor will be issued with a notice telling him/her to appear before the court on the date specified in the notice.
If the court entertains an ex parte application by the creditor, it means the debtor will not be required to appear in court.
The court will inquire into the financial position of the debtor and make an order as it may see just and equitable, eg. the court may order payment by instalments.
The court order against the garnishee includes the amount of the debt (for the past, present and future), legal costs and commission.
The court may on good cause shown, amend, suspend or rescind a garnishee order.
If a debtor cannot maintain himself/herself or his/her dependents, following a garnishee order, the court must cancel the order or amend it so the debtor, and his/her dependents, will have sufficient means to survive.
A garnishee order may be enforced in the manner as if it were a judgment of the court. Should a garnishee default on payment, a warrant of execution m ay be issued against him/her.
If the garnishee disput es the liability to pay, s/he must appear in court on the day shown in a notice served, and show cause as to why s/he should not pay the debt.
A creditor, or any interested party, may make an application to the court for the re - issue of a garnishee order.
This can only be done if the garnishee order has been lost or misplaced. A court will not re-issue a garnishee order that has terminated / expired - the credit or must make a fresh application for a new garnishee order.
In a case where the garnishee order re-appears, after disappearing, it will be cancelled by the clerk of the court by endorsing across the face of it two transverse parallel lines with the words "Cancelled" written on it.
Date: 25th July 2014
Legislation: Magistrates Court Act 32 of 1944