Garnishee orders explained

What a garnishee order is

When a creditor gets a judgment against you in the magistrate’s court for an unpaid debt, it can ask the court for an order that instructs your employer to deduct an amount from your salary each month and pay it to the creditor until the judgment debt and allowed costs are settled. The rules are in section 65J of the Magistrates’ Courts Act.

The rules that protect you

• A court must authorise it. Since the Constitutional Court’s 2016 judgment in University of Stellenbosch Legal Aid Clinic v Minister of Justice, a clerk can’t simply issue an order on consent: a court must be satisfied that it is just and equitable and that the amount is appropriate.
• The 25% limit. The instalment, or all your orders added together, may not be more than 25% of your basic salary.
• You must be left enough to live on. You or your employer can ask the court to cancel or reduce an order that would leave you without enough to support yourself and your dependants.
• The right court. The order must come from the court in the district where you live, work or do business, not one far away chosen by the creditor.
• Notice and 10 days to oppose. You and your employer must be given notice of the application and have 10 days to oppose it, for example because the amount claimed is wrong, or 25% of your basic salary is already committed and you would not have enough to live on.
• Statements. The creditor must give you a statement of what has been paid and what is still owed, at least every three months.

An example of the 25% limit

Your basic salary is R 18 000 a month. All garnishee orders together may take at most 25% × R 18 000 = R 4 500 a month, even if you have three creditors. The limit is on your basic salary, not your pay including overtime or allowances.

What your employer does

Deductions start at the end of the month after the order is served on your employer. The employer may keep a commission of up to 5% of the amounts it deducts, but that comes from the creditor, not from you. An employer that unreasonably fails to stop deducting when it should can be ordered to pay you back.

Interest and costs can’t grow forever

For credit agreements under the National Credit Act, the in duplum rule in section 103(5) means that while you are in default, interest, fees, credit insurance and collection costs together can’t exceed the unpaid balance at the time you defaulted. If a statement shows the debt has grown far beyond what you originally owed, ask for a full breakdown.

How to check an order

1. Ask your payroll department for a copy of the order. It should have a case number, the court’s stamp, and your full name and ID number.
2. Check which court granted it, and that it is in the district where you live or work.
3. Check that the total of all orders is no more than 25% of your basic salary.
4. Ask the creditor or its attorney for a statement of payments and the balance, and compare it with what you owed.
5. Check that the debt is yours and was not already paid or prescribed.

How to challenge or stop one

• Apply to the court to suspend, amend or rescind the order on good cause, for example if it leaves you without enough to live on or the amount is wrong.
• Get free legal help from Legal Aid South Africa or a university law clinic if you can’t afford an attorney.
• Complain to the National Credit Regulator if the credit provider or debt collector broke the National Credit Act.
• Debt review: a debt counsellor can restructure your debts, but an agreement can’t be added to debt review once the credit provider has sent a section 129 letter of demand or started legal action, so apply early.
• Pay it off or settle: once the judgment debt and allowed costs are paid, the order must be stopped. Ask for a paid-up letter and give it to payroll.

Frequently asked questions

How much can a garnishee order take from my salary?

All orders together may not take more than 25% of your basic salary, and you can ask the court to reduce an order that leaves you without enough to live on.

Can I be garnished without a court order?

No. A creditor first needs a judgment and then a court-authorised emoluments attachment order.

Can my employer fire me for a garnishee order?

An order is a court process for a debt; it is not misconduct. Speak to your union or the CCMA if you are threatened with dismissal over one.

Does a garnishee order affect my credit record?

The judgment behind it may appear on your credit record. Once the debt is paid, ask for a paid-up letter and for the judgment to be rescinded so it can be removed.

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