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Garnishee proceedings

By Amogelang Thaga

Upon obtaining final judgment sounding in money, there is no guarantee that the money owed will be repaid. Winning does not signal the end of the judicial process. Garnishee proceedings, amongst other court processes may be instituted against a judgement debtor who despite numerous requests refuses to satisfy the judgement debt.

The Judgement creditor may approach court for a garnishee order. The Black Law Dictionary (Eighth Edition), simply defined Garnishee Proceedings or garnishment as a "judicial proceeding in which a creditor (or potential creditor) asks the court to order a third party who is indebted to or is bailee for the debtor to turn over to the creditor any of the debtor’s property (such as wages or bank accounts) held by that third party".

Garnishee proceedings, otherwise known as ‘garnishment’ is a judicial process of execution or enforcement of monetary judgment wherein money belonging to a judgment debtor, in the hands or possession of a third party known as the ‘Garnishee’ (usually a bank / employer), is attached or seized by a judgment creditor, the ‘Garnishor’, in satisfaction of a judgment sum or debt. The amounts in question must however be actually due and payable.

The holder of a judgment may on an ex parte application (without notice to the judgement debtor) institute garnishee proceedings supported by an affidavit in a prescribed form by the rules of court. The judgement creditor shall among other things, satisfy the court of an existing judgment in its favour; that such debt is unsatisfied; specify the amounts payable; indicate that the that the judgment debtor resides, carries on business or is employed within the jurisdiction. After satisfying itself, the court may grant a temporary order in the first instance. The order will call upon the judgment debtor to appear personally in court on a return date for further consideration of the matter.

The provisional order must be served personally on the judgment debtor who will be called forth to show cause why the order must not be made absolute (final). In the ordinary cause a provisional garnishee order will be made final unless the judgment debtor is able to show ‘reasonable ground’ to the contrary. On the return date, the judgment debtor may not question the correctness of the judgement on which the application is based.

A provisional order will not be made final if the judgment debtor proves that he has a set off against the judgement creditor or that the debt sought to be attached belongs to or is subject to a claim by some other person;

On the other hand, If the judgment debtor disputes his liability or has any other defence the court may order the judgment debtor to state in writing or orally, on oath otherwise and may determine the issues on a summary manner or order that the matter in issue be ordered under ordinary court process.

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