Garnishing Order

Mars

Mars

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I just received a garnishing order for one of my staff.
The thing is, he doesn't owe this money.

He is with the company medical aid. The medical aid changed their policy whereby you have to nominate your doctor before you go there. Since my employee had already been to his doctor numerous times and the medical aid paid for it he thought (as I would) that this doctor was acceptable.

Months later he gets a final demand from the doctor. We phone the medical aid, the problem becomes apparent and after some negotiation, the medical aid makes the payment to the doctor.

The doctor then hands over my employee for non payment. The lawyer sends someone and bullies my employee into signing an admission of debt telling him they will get him fired if he does not. NOTE: its already been paid.

We find out about this and we start negotiating with the lawyers. They are not interesting in anything except full payment again with penalties and interest. We refuse and continue to send all the paperwork and receipts to them. The stopped hassling us and I thought they got the message.

Today the garnishing order arrives.

No summons was ever received, yet there was a court date and the judgement was made in his absence.

I think this constitutes fraud. Can I go and lay a charge of fraud against the doctor and the lawyers?

This has got to be the most abhorrent manifestation of the corruption and negligence. Can I lay a complaint directly with the court?
 
Madman88 said:
.
The lawyer sends someone and bullies my employee into signing an admission of debt telling him they will get him fired if he does not. NOTE: its already been paid.

This has got to be the most abhorrent manifestation of the corruption and negligence. Can I lay a complaint directly with the court?
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I agree with you. The problem with an acknowledgment of debt is that the reason why a lawyer would get you to sign one is that, on its own, it is a separate cause of action i.e. I now no longer need to sue under the original debt, but can merely sue on the basis of the AoD. Trust me, the latter is a helluva lot easier as it's a "liquid document".

If your employee never got the summons, you need to take urgent steps to apply for a recission of judgment. It really is the only way. Request a copy of the summons and sheriff's proof of delivery from the attorneys' as well.
 
Unfortunately, everything was done according to the book from a legal point of view from what I read from your post. Remember, the garnishee order is a court order which you need to comply with. Not executing it could land you up in court.

I suggest executing the garnishee order and then contact some attorney that could help you take legal actions in getting the money back. Criminal charges will not help with this.
 
House said:
Unfortunately, everything was done according to the book from a legal point of view from what I read from your post. Remember, the garnishee order is a court order which you need to comply with. Not executing it could land you up in court.
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If it was done under duress then not according to the book.
 
just something else: The garnishing order is directed to you, the court is telling you to do something. If you fail to do what the court is telling you to do you are potentially in contempt.

The judgment which gives rise to the the garnishing order doesn't involve you as a party at all. You may have knowledge that would concern it and so on but it isn't a matter where you are a party and you do have standing to approach the court and challenge the correctness of their balances and so on. In reality though it isn't your problem except in so far as it is an injustice on one of your staff members.

I suspect that an appropriate letter to the Judgment Creditor's attorney indicating that you are the garnishee and have reason to believe that this order has been improperly sought and is manifestly unjust and therefore request in terms of section 65J(4)(b) you request a statement of particulars and provide them with the information you have that the account was paid by the medical aid. When they refuse or provide you with bull**** you can write back to them (or write for a second time if they simple don't answer) stating that you honour the court order by virtue of the authority of the court but unless they satisfy you that they are not taking advantage of your employee and are improperly practicing will approach the court as the garnishee to dispute the balance claimed and seek the suspension of the order and will seek costs against the judgment creditor. You might well find that they realize that the risk of getting themselves into a pile of crap isn't worth it and at the first sight of an employer who is giving a crap will recoil but they may also just try to bully you - you need to decide whether it is worth taking the issue on because you have no responsibility beyond complying with a court order; spending company resources on this can be beneficial for staff morale (and not just the affected guy) but it could also lead to greater dependency and so on - its a difficult call to make and I'd think the default position is even as a good man just to do nothing, which is a necessary condition for evil to thrive.

Section 65J of Magistrates Courts Act said:
(4)(b) (b) The judgment creditor or his or her attorney shall, at the reasonable request of the garnishee or the judgment debtor, furnish him or her free of charge with a statement containing particulars of the payments received up to the date concerned and
the balance owing.
(5) An emoluments attachment order may be executed against the garnishee as if it were a court judgment, subject to the right of the judgment debtor, the garnishee or any other interested party to dispute the existence or validity of the order or the correctness of the balance claimed.
...
(7) Any emoluments attachment order may at any time on good cause shown be suspended, amended or rescinded by the court, and when suspending any such order the court may impose such conditions as it may deem just and reasonable.
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http://www.justice.gov.za/legislation/acts/1944-032.pdf

Something else, remember you can dock off 5% of whatever the garnished amount is as your administrative fee (s65J(10)) and nothing will piss a sleezy lawyer off more than if you use this to challenge them - on a 2k garnishing order its R100 a month.


The real f%ck up in South Africa is that people belong to unions, the unions should be the port of call that an employee is having pay garnished approaches, the union should have somebody query with the employer and secure a copy of the order as served and then assist the employee in escaping an injustice. Instead the unions take membership dues and stuff over their members.
 
Hosehead said:
tl:dr Summons not properly served. Apply for recission on that basis
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It can be served if it was agreed to that the address specified is the domicilium citandi et executandi .
 
supersunbird said:
My advice:

Contact Malcolm Rees at Moneyweb (address a bottom of article - http://www.moneyweb.co.za/moneyweb-financial/law-societies-fail-to-mitigate-garnishee-abuse-sin).

He has done a bunch of articles on improper and suspect garnishee (also called emoluments attachment) orders and he should be able to put you in contact with someone who can assist.
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That guy is a total moron. Those garnish orders have been found fraudulent and the source has been discovered as the courts themselves and that summit is involved as well. Malcom was given particular information about this particular investigation and twisted it. And yes i do have access to privileged information into this regard.
 
We threatened the the debt collection agency with lying to the court and coercion in getting the acknowledgement of debt signed.
I also threatened to lay a charge of misconduct against the sheriff that delivered the garnishing order.

They kept coming back with lower and lower settlement offers. I had the feeling we had them on the run but my employee was happy to settle the thing completely for R250.
I suppose I cant blame him, but I would have liked to take this thing all the way.
 
Madman88 said:
We threatened the the debt collection agency with lying to the court and coercion in getting the acknowledgement of debt signed.
I also threatened to lay a charge of misconduct against the sheriff that delivered the garnishing order.

They kept coming back with lower and lower settlement offers. I had the feeling we had them on the run but my employee was happy to settle the thing completely for R250.
I suppose I cant blame him, but I would have liked to take this thing all the way.
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+1

Also people need to understand the difference between a garnish order and emolument attachment. The emolument attachment is dead easy to get, the garnish order not so.

As an employer you/we need to understand the difference, the legal implications, our responsibility and more important, our legal obligation to ensure these orders are 100% legal else we are liable, not the employee.

Many employers have had to reimburse staff due to them enforcing a non-legal order. I did all my homework when our maid got a (legal) emolument attachment.
 
Unfortunately there's a lot of crooked nonsense in the debt collection business.

Fng said:
It can be served if it was agreed to that the address specified is the domicilium citandi et executandi .
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Sheriffs have been known to just dump the summons somewhere and claim it was delivered.
 
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