What you need to know about Garnishee Orders in South Africa

Two of the worst things that could happen to someone who owes money is:

A: Getting a garnishee order issued against them; Or..

B: Having their stuff repossessed.

The point is, garnishee orders are bad news for consumers. Here’s why…

 

Garnishee orders

In South Africa, a garnishee order is a legal way to collect outstanding debts directly from someone’s salary or bank account.

Usually, it’s initiated by a creditor through the courts. Creditors or lenders use garnishee orders to recover outstanding debt from borrowers who aren’t paying.

Here’s a detailed explanation, plus how it all works.

 

What is a garnishee order?

A garnishee order is a court order that allows someone who is owed money to recover the debt from a third party. This third party is known as the “garnishee” and is usually the person who owes money’s employer or their bank. What the order does, is it forces the garnishee to pay the creditor directly. Before paying the person who owes the creditor. Until the order settles the outstanding debt.

This way, it works like a forced structured repayment plan.

Remember the definition of these terms:

• Debtor = the person or entity who owes money.
• Creditor = the person or entity money is owed to.
• Garnishee = a third-party with the debtor’s funds. Like a bank or employer.

 

To let the concept sink in, let’s look at how it works.

 

 

How does a garnishee order work

A garnishee order works by forcing the “garnishee” (a third party like a bank or employer) to pay a portion of the outstanding debt directly to the creditor. The garnishee order directs the garnishee to withhold a portion of money from the debtor (who owes money) until the debt is settled. Because it is a legal document, the garnishee has to follow instructions on the order.

 

Here’s how it works:

1. The creditor verifies debt and tries to collect: The creditor checks the outstanding debt and tries traditional debt collection methods, like direct communication and reminders.
2. Issue Section 129 notice: If these attempts fail, the creditor issues a Section 129 notice to the debtor. This notice informs the debtor of their default and suggests ways to resolve the issue, such as seeking debt counselling or coming to a repayment agreement. The debtor is given a chance to fix things without going to court.
3. Issue summons to debtor: If the debtor does not respond to the Section 129 notice or fails to settle the debt, the creditor issues a summons to the debtor. This informs them of the legal action and the outstanding debt.
4. Court appearance and application for garnishee order: If the debtor does not respond to the summons or fails to settle the debt, both parties appear in court. The creditor applies for a garnishee order, providing proof of the debt and any efforts made to collect it. While the debtor has the chance to contest the order.
5. The court makes a decision and issues the order: The court reviews the application and, if satisfied with the evidence, issues the garnishee order. If contested, both parties present their cases during the court hearing. If uncontested, the court may issue the order without a detailed hearing.
6. A sheriff notifies the ‘garnishee’: Once the order is issued, the court sends it to the debtor’s employer or bank. This document tells them to withhold a specified portion of the debtor’s salary or funds.
7. Funds are withheld from the debtor’s salary or account: The employer or bank starts withholding the specified amount from the debtor’s salary or account. This process continues regularly, usually monthly, until the debt is fully repaid.
8. Transfer withheld funds to creditor: The withheld amounts are sent directly to the creditor as stated in the garnishee order.

 

 

How long Is a garnishee order valid for

A garnishee order does not have a specific expiration date and is valid until the total debt, including any interest and additional court costs, is fully repaid. It remains enforceable until the debt is completely paid off. Though, if the debtor changes jobs or bank accounts, the creditor may need to apply to the court to update the order with the new employer or bank details.

Did you notice the part about “including any interest and additional court costs”?

That’s right. This kind of legal adds additional costs.

The best thing to do is to take action before things reach a point where the court issues a garnishee order.

 

How to prevent a garnishee order

There are a couple of things debtors can do to prevent a garnishee order.

Here are some effective ways to avoid or stop a garnishee order:

1. Apply for debt counselling (debt review) as soon as you start missing payments or paying late
2. Talk to creditors to try and negotiate more affordable repayment terms
3. Seek legal advice if there is a strong case to defend the order

 

 

Apply for debt counselling (debt review): Debt counselling helps make debts more affordable. The process legally reduces how much debtors have to pay each month and protects them from legal action like garnishee orders.

Talk to creditors: If you’re struggling, tell your creditors. Try to negotiate a repayment plan that fits what you can afford. Some creditors may be willing to negotiate payment plans or offer temporary relief options like debt counselling.

Seek legal advice: If you receive a notice about a potential garnishee order, consult with a legal advisor. They can help you understand your rights and explore options to contest the order in court, especially if there is a strong case to defend against it.

⭐ Related content: How debt review (debt counselling) works

 

What are the advantages and disadvantages of a garnishee order

Garnishee orders come with both advantages and disadvantages for creditors and debtors.

Advantages of a garnishee order for creditors: It legally enforces debt repayment and helps creditors to collect outstanding debts.

Disadvantages of a garnishee order for debtors: It reduces their income and the process adds more costs and expenses like fees. Plus, it may affect their relationship with their employer in the case of salary or wage garnishment.

Let’s sum up.

 

In summary

It’s better to get ahead of the problem and prevent something like a garnishee order from ever becoming an issue.

How?

By paying debts on time. And paying the correct amount each month.

If that’s a challenge, then, debt counselling can help.

Ignoring debt problems doesn’t work. It only makes things more expensive in the end.

If you want a solution. Talk to our team at My Debt Hero. We can help.