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Wednesday Jan 22, 2014

Court may order salary deduction to pay rent

Where a tenant owes rentals, his landlord can obtain a court order that would compel the tenant's employer to deduct a specific amount from his salary to be paid to the landlord in installments.

This is referred to as an emoluments (salary) attachment order.

The tenant would be given an opportunity to defend such an application and the court would investigate the tenant's circumstances before granting the judgment.

Can a court order a tenant to pay her rentals to a third party and not the owner/landlord with whom she entered into a lease contract?

Let us take the example of an owner of a flat in a sectional titles scheme who owed the body corporate.

The owner failed to pay the monthly levy and the body corporate issued summons to recover the outstanding levies.

The case was finally decided in favour of the body corporate with a judgment against the owner. The owner refused to settle the debt, which included interest and the body corporate's legal costs.

There is no contractual relationship between the tenant who occupies a dwelling (flat or unit) in a sectional title block and the body corporate.

However, if the body corporate has obtained a judgment against the sectional title owner and an order attaching his or her rental income, then it may collect rentals from the tenant.

The body corporate is obliged to provide proof to the tenant that it has obtained the right to do so.

The body corporate can approach the magistrates' court (or the high court) for a garnishee order that would allow it to seize the owner's rental income.

Once the garnishee order is granted the tenant is legally obliged to pay the rental over to the body corporate (judgment creditor).

The owner's (the judgment debtor's) rental from the tenant is attached and the tenant (the garnishee) is ordered to pay 'the judgment creditor or judgment creditor's attorney so much of the debt as may be sufficient to satisfy a judgment or order obtained against the judgment debtor by the judgment...'

The garnishee (the tenant) is afforded an opportunity to appear before the magistrate if she or he fails to pay the judgment creditor (the body corporate) or its attorney to explain or show cause why he or she should not pay the rentals to the judgment creditor.

The sheriff must give written notice to all interested parties who have an interest or would be affected by the intended garnishing order.

The garnishing proceedings in terms of the high court are laid out in Rule 45(12):

Garnishee

'(a) Whenever it is brought to the knowledge of the sheriff that there are debts which are subject to attachment, and are owing or accruing from a third person to the judgment debtor, the sheriff may, if requested thereto by the judgment creditor, attach the same, and thereupon shall serve a notice on such third person, hereinafter called the garnishee, requiring payment by him to the sheriff of so much of the debt as may be sufficient to satisfy the writ, and the sheriff may, upon any such payment, give a receipt to the garnishee which shall be a discharge, pro tanto, of the debt attached.

'(b) In the event of the garnishee refusing or neglecting to comply with any such notice, the sheriff shall forthwith notify the judgment creditor and the judgment creditor may call upon the garnishee to appear before the court to show cause why he should not pay to the sheriff the debt due, or so much thereof as may be sufficient to satisfy the writ, and if the garnishee does not dispute the debt due, or claimed to be due by him to the party against whom execution is issued, or he does not appear to answer to such notice, then the court may order execution to issue, and it may issue accordingly, without any previous writ or process, for the amount due from such garnishee, or so much thereof as may be sufficient to satisfy the writ.'

The matter becomes complicated for the tenant when the owner threatens an eviction or even a lockout should the tenant hand the rentals over to the judgment creditor.

It is critical for the tenant to seek legal advice upon receiving an application for a garnishee order.

Dr Sayed Iqbal Mohamed
Chairman, Organisation of Civic Rights
Tenant Matters
Daily News
For tenants' rights advice, phone Loshni Naidoo or Pretty Gumede at 031 304 6451.

    
 

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