A garnishee order is essentially a court instruction that allows someone who is owed money (the creditor) to collect what’s due to them by getting it directly from a third party who owes money to the person who’s not paying up (the debtor).
Imagine this scenario: you’re supposed to receive maintenance payments, but the person responsible for paying isn’t sending the money. Instead of you having to chase them down, a court can issue a garnishee order. This order would direct a third party—like the debtor’s employer, a bank, or someone else who owes the debtor money—to send a portion of that money directly to you, the creditor, or your lawyer.
Getting a garnishee order usually starts with the creditor making an ex parte application to the court. “Ex parte” means that the application is made by one party (the creditor) without the other party (the debtor) being present at that specific hearing. The court can also grant this type of order when it’s already looking into the debtor’s financial situation, perhaps during an inquiry into their ability to pay.
A garnishee order aims to make sure the creditor gets the money they’re owed, especially for crucial payments like maintenance, by intercepting the funds before they even reach the debtor.
Further, the Magistrates Court Act provides that the court will grant an order for attachment of any debt that is owed presently or in the future or that has accrued to a debtor. The Act states that the debtor must reside, carry on business, or be employed in the district of the court to satisfy the judgment and the costs of the proceedings for the attachment, whether the judgment was obtained in such a court or another Magistrates Court. The order will be made against the garnishee (the third party) to pay the overdue maintenance to the judgment creditor or his attorney at the address of the judgment creditor or his attorney.
However, the court will set aside the garnishee order if it is evident that certain factors are present, such as the debtor satisfying the court that he has no sufficient means to maintain himself or anyone dependent upon him. The court will then either amend the garnishee order to satisfy the balance of the overdue debt over and above sufficient means or suspend the order.
If you have been served with a garnishee order and acquired legal assistance, please contact us for further assistance. Alternatively, if you are a judgment creditor and need assistance with making an ex parte application to the court to enforce a garnishee order, feel free to contact us for assistance.
Shervona Tia Marshall
Associate
shervona@bbplaw.attorney
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