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Is your staff being swamped by garnishee orders?

garnishee_BUnsecured loans have boomed in the local economy. It has been recently estimated that there are 3 million garnishee orders in South Africa and up to 15% of the labour force are affected.  You will probably have processed some of these orders through your payroll system. As they are usually against your economically vulnerable staff, it is worth asking yourself some questions about garnishee orders.

What are garnishee orders?

Firstly you may come across the term “emoluments attachment order”.  This in fact more correctly describes this type of order, although in practice “garnishee order” is more widely used and understood.  These orders are legally the easiest recourse unsecured lenders have to get loans repaid. The main requirement to get a garnishee order from a Magistrate’s Court is evidence there is a debt owed. The garnishee order is served by the sheriff of the court on the employer of the debtor. It sets out the amount to be deducted from the employee’s salary and the number of payments needed to settle the debt. It will contain a case number, be stamped by the clerk of the court, the full name and I.D number of the employee plus the signature of the attorney applying for the garnishee order.

There is no requirement that the Court consider whether the repayments are affordable. Clearly, garnishee order procedures have loopholes which unscrupulous lenders might exploit to get repaid. An investigation on a multi-national’s payroll found instances of employees who ended up with no take home pay or had up to 12 garnishee orders against them.

What can you do?     

You don’t want unhappy staff members who are being driven into poverty through unsecured lending.  Check that the garnishee order is valid (many are not) and check if your employee can afford the repayments. If the repayments are unaffordable, then either the lender or collection agency has not correctly vetted the amount your employee can pay, and your employee can ask the court to reduce it. Also check that the additional charges (interest, attorney costs and Court costs) are correct. If the order itself is defective and invalid, refuse to accept it, and advise the sheriff and the creditor of this and the reason for you not accepting the garnishee order – take advice in doubt here as you will be liable for any wrongful failure to effect deductions. If the garnishee order is correct then you will need to deduct the amounts shown from the employee’s salary.

© DotNews, 2005-2012. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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