Magistrates' Courts Act, 1944 (Act No. 32 of 1944)RegulationsRules Regulating the Conduct of the Proceedings on the Magistrates' Courts of South Africa47. Attachment of a debt by garnishee order |
| (1) | An application for an attachment of a debt shall be supported by an affidavit or affirmation by the creditor or a certificate by his or her attorney stating that— |
| (a) | a court— |
| (i) | has granted judgment to the judgment creditor; or |
| (ii) | has ordered the payment of a debt referred to in section 55 of the Act and costs in specific instalments; |
| (b) | has ordered the payment of a debt referred to in section 55 of the Act and costs in specific instalments; |
| (c) | the garnishee resides, carries on business or is employed within the district, with mention of the address of the garnishee; and |
| (d) | a debt is at present or in future owing or accruing by or from the garnishee to the judgment debtor and the amount thereof. |
| (2) | Unless an application for a garnishee order is directed to the court which granted the judgment or order referred to in subrule (1)(a), a certified copy of the judgment or order against the judgment debtor shall accompany the affidavit or affirmation or certificate referred to in subrule (1). |
| (3) | Sufficient information including the identity number or work number or date of birth of the judgment debtor shall be furnished in a garnishee order to enable the garnishee to identify the judgment debtor. |
| (4) | Upon an application under this rule the court may require such further evidence as it may deem fit. |
| (5) | Upon an application under this rule the court may order the garnishee to pay to the judgment creditor or his or her attorney so much of the debt at present or in future owing or accruing by or from him or her to the judgment debtor as may be sufficient to satisfy the said judgment, together with the costs of the garnishee proceedings (including the costs of service), or failing such payment to appear before the court on a day to be named in the said order and show cause why he should not pay such debt. |
| (6) | The registrar or clerk of the court shall note upon the face of an order made under subrule (5) the day it was made. |
| (7) | An order made under subrule (5) shall be served upon the garnishee and upon the judgment debtor and shall operate as an attachment of the said debt in the hands of the garnishee. |
| (8) | The judgment debtor and the garnishee may appear on the day fixed for the hearing of the application, but may not question the correctness of the judgment on which the application is based. |
| (9) | If the garnishee does not dispute his or her indebtedness to the judgment debtor, or allege that he or she has a set-off against the judgment debtor or that the debt sought to be attached belongs to or is subject to a claim by some other person, or if he or she shall not appear to show cause as provided in subrule (5), the court may order the garnishee to pay the debt (or such portion of it as the court may determine) to the judgment creditor or his or her attorney on the dates set out in the said order, and should the garnishee make default, execution for the amount so ordered and costs of the said execution may be issued against the garnishee. Rules 36 to 43, inclusive shall mutatis mutandis apply to execution in terms of this subrule. |
| (10) | If the garnishee disputes his or her liabilities to pay the debt or alleges that he or she has any other defence, set-off or claim in reconvention which would be available to him or her if he or she were sued for the said debt by the judgment debtor, the court may order the garnishee to state, orally or in writing, on oath or otherwise, as to the court may seem expedient, the particulars of the said debt and of his or her defence thereto and may either hear and determine the matters in dispute in a summary manner or may order that— |
| (a) | the matters in issue shall be tried under the ordinary procedure of the court; and |
| (b) | for the purpose of such trial, the judgment creditor shall be plaintiff and the garnishee defendant, or vice versa. |
| (11) | If the garnishee alleges that the debt belongs to or is subject to a claim by some other person the court may extend the return day and order such other person to appear and state the nature and particulars of his or her claim and either to maintain or relinquish it, and may deal with the matter as if the judgment creditor and such other person were claimants in interpleader in terms of rule 44. |
| (12) | If the judgment debtor alleges that the judgment has been satisfied or is for some other reason not operative against him or her, or that the garnishee is not indebted to him or her, the court may try the issue summarily. |
| (13) | After hearing the parties or such of them as appear the court may— |
| (a) | order payment by the garnishee in terms of subrule (9); |
| (b) | declare the claim of any person to the debt attached to be barred; |
| (c) | dismiss the application; or |
| (d) | make such other order as it may deem fit. |