Employers should take care to ensure that the money they are paying over is legally due to the recipient
Support for debt trapped employees
MANY EMPLOYERS are reluctant to make enquiries or dispute the validity of a garnishee order.
Yet, a recent judgment of the Western Cape High Court has pointed out that many garnishee orders are in fact issued in an invalid manner and have no legal standing.
This means that the employer should not be deducting the worker’s salary and paying it over to the judgment creditor.
The employer should be on the lookout for the following if they receive a garnishee order, which is known as an Emolument Attachment Order.
Only a sheriff of the court may serve the garnishee order on the garnishee (the employer).
If the order is served by anyone other than the Sheriff, then the service is invalid and of no effect.
It has been reported that the judgment creditor’s representatives sometimes use debt collectors to effect service on the employer or they contact the employer and fax or e-mail a copy of the garnishee order and request payment from the worker’s salary.
In terms of the Sheriff ’s Act, service of a garnishee order by anyone other than a sheriff is a criminal offence which if convicted is punishable by a fine and/or conviction for a period not exceeding 3 years.
The South African Board for Sheriffs can be contacted at contact@sheriffs.org.za.
The employer’s name must be correctly reflected as the garnishee on the order. If the judgment debtor wants to substitute a new employer’s name on the garnishee order, he must approach the courts for such an order.
The garnishee order
is obtained against the employer and in terms of the Magistrates Court Act, and this must be done in a court having jurisdiction over the area where the employer is situated.
If the garnishee order is issued outside of the area, it does not comply with the Act and the employer should get legal advice on the validity of implementing the order before paying over any money on behalf of employees.
Unscrupulous debt collectors and their lawyers attempt to frustrate the garnishee and judgement debtor from exercis- ing their rights by obtaining orders illegally from courts which are located very far away.
Even if a valid garnishee order is issued, the employer must take into account that the courts will still consider the plight of the affected employees if their salary is insufficient to support their family and either rescind or vary the garnishee order.
Employers should direct employees to obtain legal assistance. Section 65J(6) of the Magistrates' Courts Act, 1944, provides that “If, after the serv-
Many employers have a wellness programme for their staff.
Human resources departments should consider providing wellness support to any employee when they receive a garnishee order against that employee salary. It is an early indicator that the employee may not be managing their debt properly.
Highly indebted employees are at high risk of:
suffering from stress and other related illness high absenteeism decreased concentration, motivation and productivity in the work place
may be more susceptible to corruption
As part of the programme the employee can be offered basic financial literacy and financial management and budgeting training.
Employees can also receive wellness counselling to manage their existing debt through an affordable payment plan to prevent legal action from other creditors. ice of such an emoluments attachment order on the garnishee, it is shown that the judgment debtor, after satisfaction of the emoluments attachment order, will not have sufficient means for his or her own and his or her dependents' maintenance, the court shall rescind the emoluments attachment order or amend it in such a way that it will affect only the balance of the emoluments of the judgment debtor over and above such sufficient means.”
Sharon Snell writes in her personal capacity as a legal expert.