Garnishee Orders

What is a garnishee order?

A garnishee order is an attachment of money against a third party ("the garnishee") who owes money to a judgment debtor ("debtor").

  • If a debtor failed to pay money, in terms of a judgment, directly to the judgment creditor ("creditor"), a garnishee order may be applied for against the garnishee.
  • For example: the husband and wife got divorced, and the husband was required in terms of a judgment to pay monthly maintenance of R5000 to his wife, but he failed to pay. The wife applied to court for a garnishee order, and the court ordered the husband's lessee (of the husband's private property) to pay the rent of R5000 to the wife instead of the husband.

What is an emolument attachment order?

  • An emolument attachment order is a form of a garnishee order although it is directed at the debtor's employer and allows only for the attachment of a part of the debtor's salary.
  • For example: the husband and wife got divorced, and the husband was required in terms of a judgment to pay monthly maintenance of R5000 to his wife, but he failed to pay. The wife applied to court for an emolument attachment order, and the court ordered the husband's employer to pay R5000 of the husband's salary to the wife.
  • An administration order, or a section 65 financial enquiry, may result in a garnishee order.

How is a garnishee order obtained?

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, for example 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.

Amendment, suspension or rescission of garnishee orders

  • 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.

Enforcement of garnishee orders

  • 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 may be issued against him/her/it.
  • If the garnishee disputes the liability to pay, s/he/it must appear in court on the day shown in a notice served, and show cause as to why s/he/it should not pay the debt.

Re-issue of a garnishee order

  • 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 creditor 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.

Advantages and Disadvantages of garnishee orders

Disadvantages   

  • It has a negative effect on the judgment debtor's credit report.
  • The order may be made when the judgment debtor is not present in court.

Advantages

  • It gives the judgment creditor an opportunity to recover his debt from the judgment debtor.
  • It assists the judgment debtor to pay off a debt that is owing.

Key.

  • EX PARTE APPLICATION: the court passes a judgment based on papers (not evidence) placed before it, such as an affidavit; and there is only ONE party to the application.
  • JUDGMENT DEBTOR: a party against whom a judgment, ordering him to pay a sum of money, has been obtained and remains unsatisfied.
  • JUDGMENT CREDITOR: a party who has received a court order or judgment for money due from a judgment debtor.
  • WARRANT OF EXECUTION: a document issued by a Clerk or a Registrar of the court, authorising the Sheriff to take possession of property, for example, the judgment debtor's property to satisfy the judgment.

How can Legal Eagle assist you?

Legal Eagle can assist you with the following:

  • if you have a judgment that the debtor cannot, or refuses to satisfy, we can apply for an garnishee order;
  • apply for the adaption, re-issue or enforcement of a garnishee order; and advise or explain a garnishee order to you.