Monday, September 1, 2014

CANCELLATION OF EMOLUMENT ATTACHEMENT ORDERS aka GARNISHEE ORDERS

Cancellation of Emoluments Attachment Orders aka "Garnishee Orders"
(Credit: Campbell Attorneys)

#debt #garnisheeorders

What is a "Garnishee" order?

The legal term for what is commonly referred to as a "garnishee" is an emoluments attachment order. The usage of the word "garnishee" is however more prevalent and hence colloquial. Thus the terms "garnishee" and "emoluments attachment order" or "EAO" have come to be seen as interchangeable. In simple terms, a "garnishee order" allows a creditor to force your employer to deduct money from your salary or wages to go toward repayment of an outstanding debt. Such orders can be cancelled, or rescinded by court application.

Which court has the power to grant a 'Garnishee' order?

In terms of Section 65J of the Magistrates' Courts Act 32 of 1944, a judgment creditor may have an Emolument Attachment Order issued from the court of the district in which the employer of the judgment debtor resides, carries on business, employment address or the creditor may approach the court where the cause of action arose, in other words where the contract was concluded and accepted by both parties (Jurisdiction is governed by Section 28 of the Magistrates Court Act). When the debtor is employed by the State jurisdiction is based upon the central management and control office as decided in Minister of Law and order v Patterson 1984 (2) SA 739 (A).

From the above, it is evident that the court that has the power to grant the EAO (aka jurisdiction) is the court in the district in which your employer "resides, carries on business, employment address or based upon the cause of action."

There is often confusion regarding jurisdiction as it might seem that the creditor approached the incorrect court but in fact a judgment could have been granted correctly (in terms of Section 28 in respect of jurisdiction) and an Extract From Civil Judgment is then transferred to the second court – in such an instance there would be two case numbers – one for the judgment and one for the actual Garnishee Order.

When can a "Garnishee" order be granted?

An EAO is ONLY issued in the following instances:

Where the judgment debtor (you) consented in writing or the court has authorized the issuing of the EAO; OR
The judgment creditor (or their attorney) has sent a registered letter to the judgment debtor at his or her last known address advising the judgment debtor of the amount of the judgment debt and any unpaid costs and that an EAO shall be issued if the said amount is not paid within ten days of the date on which the registered letter was posted. In this instance, the judgment creditor must file with the clerk of the court an affidavit or a certificate that discloses the amount of the judgment debt at the date of the order, any costs and any payments received since that date and the balance owing.
When can I cancel my "Garnishee"?

An EAO can be rescinded (cancelled) on the following grounds:

Lack of jurisdiction;
The judgment debtor did not consent to the issuing of the EAO and the court did in fact not authorize the granting of the EAO;
The judgment debtor was not duly notified.
Each matter will be evaluated based on individual facts that prevailed at the time of the granting of the court order and may vary based on each individual matter thus a rescission is not limited to the points in 4 above.

Should you believe that you have any of the grounds detailed in paragraph 4 hereof, we advise that we first conduct a preliminary investigation to determine whether you do in fact have a case to cancel your EAO. This preliminary investigation costs R1 250 and entails obtaining the necessary documentation from the court that granted your EAO and examining this documentation to establish the merits of your case.

If I do not qualify to have my "Garnishee" cancelled, can I have the amount that is being deducted from my salary reduced?

If you have neither of the above grounds and simply want to cancel or reduce the "garnishee" amount on the basis of lack of affordability, then it is not necessary for us to obtain documentation from the court file as the ground for the rescission (cancellation) of an EAO in this instance would be based on your current financial circumstances.

Other important facts about emolument attachment orders:

An employer may recover from the employee concerned commission of up to 5% of all amounts deducted in respect of services rendered in terms of the emoluments attachment order.
The amount that a creditor can charge in terms of interest and legal costs is governed by the court order and legal costs, read with the National Credit Act, if the credit is a credit agreement in terms of the National Credit Act.
An emoluments attachment order must be issued from the jurisdiction in which the employer of the judgment debtor resides, carries on business or is employed, or if the judgment debtor is employed by the State, from the jurisdiction where the judgment debtor is employed. This provision is essentially for the benefit and convenience of the employer and/or employee who may wish to apply to the court for the amendment, suspension or rescission of such an order.
If your salary is subject to an EAO, remember that you can request your employer to obtain a statement of the account in question for you. In terms of section 65J an employer may request a statement of account. However, this section does not compel creditors and/or their attorneys to render statements on a regular basis.
Regulation 23.3.6 in terms of the Public Finance Management Act 1 of 1999 caps the emoluments attachment to 40% of the state employee's salary. However, no such cap exists for debtors employed in the private sector.
 

N.B. For us to assist you we need a copy of your 'garnishee' order! Please contact your HR department for a copy. If you do not have a copy available immediately, complete the form below. You can email the 'garnishee' order to us later.

Help me cancel my garnishee
Contact: Eugene Prinsloo
Partner at Meecham, Prinsloo & Associates
Call/Sms/Whats App 0813166983
BBM pin:25BC1525
eMail eugene@nodebt.co.za
Kind Regards,

(mail sent from mobile)
EUGENE PRINSLOO
Partner

Meecham, Prinsloo & Associates
Paralegal Practitioners
Located on the South Coast, KZN
We offer professional assistance nationwide through a panel of expert service providers.

Call/SMS/Whats App 0813166983
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BBM Channel PIN C00493F66
Email eugene@skuld.co.za
Fax 0862441324
Blog www.insolvencysa.blogspot.com

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I am able to consult on the following matters:
GETTING RID OF DEBT
1) Insolvency applications.
2) Debt assessments.
3) Debt Review/Debt Counselling.
4) Debt Mediation in terms of the National Credit Act.
5) Removal of debt review, administration orders, and salary attachments/garnishee orders.
6) Credit profile clearance.
7) Any matter related to debt or debt collection where you feel you are being harassed or treated unfairly.
8) Tenant rights and eviction advice.

RENTAL MEDIATION
1) Landlord / Tenant Disputes
2) Blacklisting of bad payers
3) Credit Checks
4) Drafting of Agreements
5) Advice

ASSET PROTECTION
1) Trust registrations.
2) Business registrations.

ACQUIRING DEBT
1) Debt consolidation.
2) Buying a property, getting a home loan.
3) Second bonds.
4) Alternative property finance.
5) Advice on secured and unsecured debts. Short term loans.
6) Buying and financing a vehicle.

COLLECTING DEBT
When you are owed money, whether you are a person or business.
1) Debt collection for individuals.
2) Debt collection for business or Commercial debt collection.
3) Black listing or Default listing of debtors.
4) Debtors management.
5) Credit policy audits.
6) Debtor tracing.

CRIMINAL RECORDS
1) Verification of criminal records for employment or private use.
2) Removal of criminal records.


Disclaimer: Meecham & Prinsloo
Paralegal Practitioners cannot be held liable for any investment/legal decisions made based on the adv

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