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There are numerous ways in which a judgment creditor may enforce a judgment debt that is due to them, two of these include garnishee orders and emolument attachments orders. This article will be rooted in these by defining the difference between a garnishee order and an emolument attachment order, how these can be obtained and the instances in which they can be enforced, cancelled, and their limits in respect of what can be sought.
1. What is a garnishee order?
A garnishee order is where the creditor attaches a portion of a debt, usually owed to the debtor by a third party, this being the garnishee. This is granted by a Magistrate in the court in which the debtor resides, has their principal place of business or is employed. The garnishee will deduct a part of the debt that is due. This could be from a bank, a tenant or an employer of the creditor.
2. What are the limits of Garnishee Orders?
Not all garnishee orders remain intact indefinitely. The person against whom the order is granted can apply to have the order suspended, amended or rescinded in the event circumstances change, usually where there is a change in income or the judgment debt has been cleared in full. In this instance, the debtor would need to prove any argument brought to the court.
The Magistrate Court’s Act states that the maximum in which a garnishee order may be granted is 25% of a person’s gross salary in order to safeguard the debtor’s interests because the deduction cannot leave a debtor with limited monthly income.
3. What is an Emolument Attachment Order?
An emolument attachment order is a specific type of garnishee in which an order is made where the creditor attaches a portion of the debtor’s income, usually being the debtor’s salary or wages. The debtor’s employer will deduct an amount from the debtor’s income and pay it directly to the creditor.
Section 65J of the Magistrate Court’s Act governs the obtaining and executing of emolument attachment orders in open court, where a Magistrate will decide on the procedure that was followed and the fairness in granting the order.
4. How Can a Garnishee Order be Cancelled or Rescinded?
- Lack of jurisdiction
- No consent to the issuing of the order terms of section 65J of the Magistrate’s Court Act
- Debtor was not duly notified of the order
- The order was not granted by a Magistrate
5. How Van Deventer and Van Deventer Incorporated Assists Clients
Navigating the application for a garnishee order requires following the correct procedure, this consisting of issuing the order in the appropriate forum and through the prescribed form. Our attorneys at Van Deventer and Van Deventer Incorporated are here to assist creditors in issuing and enforcing judgment debts where debtors do not pay off their debts. And debtors where they feel the need to have a garnishee order amended, suspended or rescinded.