Is it possible to stop garnishee orders that the lawyers who took over my unpaid school fee debt are threatening? I can't afford to pay anything more.

The long answer

What is not clear to me from your email is why the lawyers are threatening a garnishee order for R500 if you have not defaulted on the agreed R200 payments? If you were paying them as per the arrangement you made with them, and did not stop paying them, they have no legal basis to demand a higher payment. For lawyers to get a garnishee order, you need to have defaulted, i.e. failed to pay them. 

The way it works is that if a debtor defaults, the creditor (or lawyers) can issue a letter of demand, legally known as a Section 129 notice. A debtor is given ten working days after receiving the letter to try and sort it out – either by paying or negotiating an agreement. So, if you got a Section 129 letter, you should go and see the lawyers as soon as you can and try to negotiate a rate of payment that you can afford with them before they go to court for a garnishee order, as it’s harder to stop a garnishee order once it has been granted. (A garnishee order is also known as an Emoluments Attachment Order – EAO.)

Paralegal Advice advises that you should always keep a record of who you spoke to, when and what was discussed. You should write down what was said, email it back to them and keep it as proof, as you may need it in court.

If negotiations with the lawyers are not successful, after the ten days are up, you will receive a summons from the court in the area where your employer’s premises are. After the summons, you have ten working days to defend the case. What that means is that you, as the defendant, have to issue a Notice of Intention to Defend within the ten days. 

Facilegis says that this notice must include your “full residential address as well as a physical address within 15 kilometres from the registrar or clerk of the court for the purpose of service of all documents on the defendant”. 

You must take the original Notice to the registrar or clerk of the court to be filed, and deliver a copy to the lawyers, who are the plaintiffs in the case.

You do need to go to court in person because if you aren’t present to explain your circumstances, the court could award a judgment against you by default, which would allow the lawyers to put a garnishee order on your salary. 

A garnishee order cannot be for more than 25% of your gross salary, and you must be left with enough income to survive.

According to Law for All, even if the deduction is lawful (for example 25%), it may still be challenged and potentially lowered if you are having financial difficulties. Additionally, it states that you are entitled to a statement that includes all the payment information, including the amount received and what is still owed. 

If you cannot come out on 75% of your salary as a single mother with three children, you must be sure to take the proof of all your living expenses, to make that case in court. This would include bank accounts, municipal bills and others, amounts paid for food, transport, clothing etc. 

“Now, when a consumer defaults, the consumer may not be charged more than double the balance at the time of the default,” according to Legal Fundi, which states that the in duplum concept applies to debt. For instance, the consumer only needs to pay R8,000 more if the balance was R4,000 at the time of default (including interest, legal expenses and any other penalties). 

According to Paralegal Advice, if you are unable to pay, "The consumer can then apply to court to have the order set aside or amended" if the court grants an order by default permitting the garnishee order and you choose not to fight the action. The consumer must submit an affidavit along with the application, along with a covering document known as a Notice of Motion in which they outline their desires. This will lay out their case in detail. If the customer is unable to make the payments, they must specify how much they can afford to pay each month and provide complete information about their earnings and outlays, together with supporting documentation (such as account statements, rent receipts, or salary advice).

Schoeman Law says that the court may modify a garnishee order to the debtor's advantage if the debtor is unable to support themselves and their dependents. Additionally, if there is sufficient justification, the court may change, revoke, or suspend a garnishee order. This is handled on an individual basis.

You can contact the Credit Ombud office on 0861 66 28 37, or SMS on 44786 or email [email protected], for more advice.

Wishing you the best,
Athalie