Garnishee orders (Emolument Deduction Orders) are an oft used method of debt collection and it is common cause that up to 80% of the around 3 million garnishees in place at the moment are either illegal or in breach of the process of the law. It is required that before approaching a Court for a garnishee order to be issued against an employee’s salary, that he/she be kept in the loop throughout the legal action process. It is a legal requirement that the client also sign a Consent letter before a Court may be approached for a Garnishee order to be issued. It has happened that Consent Letters have often been fraudulently signed (by another person) or illegally signed at the time the contract to purchase is signed. A Consent letter may only be called for once a default in payment has occurred.
Although an HR department is required by law to accept a garnishee order served on it there are a series of checks that the Human Resources department should undertake when the garnishee order is delivered to the employees place of work.
If one or more of the above are not in place the garnishee order must be taken back to Court and cancelled
In addition to the debt it is important to determine how old the debt is and when the first default occurred in respect payment on the debt.
If payment on a debt has not been made for a period three years the in terms of the law the debt has prescribed, that is it is no longer of force and effect – it is cancelled. Any prescribed debt may not be collected although there are firms that still try to do so. Any payment though willingly made on a prescribed debt will result in that debt being resuscitated. The three year limit relates to all short term debt such as credit cards, personal loans, overdrafts, motor vehicle loans etc. Bond debt prescribe only after 30 years as does SARS debt.
This law states that any debt from the first time that payment is defaulted thereon, may not as a result of charges, interest, fees, legal fees, penalty fees/interest etc., grow to a capital balance of more than double the amount as at the time of first default on the loan. Thus for example a R2000 loan cannot grow to more than R4000 before all charges must cease.This law is frequently ignored by creditors and the legal fraternity.
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