Please make sure your company and HR manager reads this article
Thousands of people have garnishee order deductions against their salaries. Most companies simply honor garnishee orders without any questions yet many of these are invalid or inflated. Many employees often find out about the garnishee order for the first time when they see a deduction in their salary slips. A study conducted by the University of Pretoria’s law clinic found widespread abuse of the garnishee order system as follows:
1. The law stipulates that a garnishee order must be obtained in courts within the jurisdiction of the alleged debtor’s home or workplace. E.g. if you live in KZN, then the order must be granted in a KZN court nearest to your home or place of work otherwise it would be very difficult for you as a debtor to challenge a garnishee order issued in a Cape court as an example. HR managers should therefore be checking the garnishee orders to ensure that the court where it was granted is within the debtor’s home or workplace. If it is not, they should refuse to do the salary deductions as the order is invalid
2. Credit providers often pay debt collectors and lawyers contingency fees which can be up to 25% of the debt outstanding for assisting them to recover their money. These fees should NOT be added to the debt amount but they often are and the debtor ends up paying the contingency fees. HR Managers should therefore not honor a garnishee order where collection fees have been added to the debt amount
3. When applying for credit, debtors are asked to sign forms agreeing to judgments and garnishee orders if they fail to pay for the debt. But they must still be notified that a garnishee order is being applied for. Creditors and debt collectors cannot simply use this consent form to put a garnishee order in place. HR managers should therefore be asking the creditors or debt collectors for proof of having notified the debtor before agreeing to a garnishee order
4. Some tracing agents who are supposed to obtain the debtor’s signature on Section 58 forms agreeing to the judgment, simply forge the debtor’s signature. When a debt is prescribed, the only way to obtain a garnishee order against a debtor is if a debtor signs a section 58 form, consenting to a garnishee order or judgment. (please see September article “Stop Prescribed Debt Rip-off” in the website www.thuthuka-sa.co.za for an explanation on prescribed debt)HR managers should therefore be asking for a copy of the Section 58 forms and comparing the signatures on the form to their employees’ signature before making the deduction.
5. Before granting a garnishee order, court officials are supposed to establish that the debtor will still have enough money to live on after the garnishee order. However, many of the officials do not conduct this affordability assessment. So if your employee will end up taking home less money than they can live on because of the garnishee order, then the garnishee order is invalid and HR managers must not honor the garnishee order on these grounds. Many employees end up applying for staff loans and putting themselves into further debt because this assessment was not done.
6. A garnishee order is valid only if it is served by a sheriff of the court. HR Managers should therefore not honor a garnishee order that is faxed or posted
Do you have garnishee order that meets any of the 6 conditions above and is therefore invalid? If so, please ask your HR manager to contact us on email@example.com so we can assist you.
- Phumelele Ndumo
Article written by Phumelele Ndumo; author of the book, 7 Secrets why the rich own their homes and founding MD of ThuthukaSA. Remember to visit our website www.thuthuka-sa.co.za for more money tips.