I left my ex employer in February and th...

Asked by Natalie on 07-11-2019 10:10:29
Question posted in the General Law category relating to Gauteng

I left my ex employer in February and they continued to pay my salary to me for the last 8 months. Payroll is signed off monthly. They have now picked up their error and want me to sign an acknowledgement of Debt with them. My question is, what are my rights and what if the money has been spent? I have sold everything I own as I was about to emigrate but have just got divorced, so I own nothing and have no asests and currently living with my mother and her husband. In my new job, I took a R10k drop in salary and am just getting by monthly.

The holding company is currently under investigation by the government after being raided due to them borrowing a large sum of cash from the PIC. Also they have a license to run this business in SA which is up for renewal and the talk at the mon=ment is that the company could liquidate and that the license may not be renewed which would result in the business closing.

Is it an option to offer them a settlement of a lessor amount? There are also TAX implications for me for next financial year. I have no idea what my rights are etc 

 Could they get a judgement, however it would be a hollow jugdement as I have no assets? Are they able to blacklist me or get access to get a deduction on my current salary?

Your help/ guidence would be greatly appreciated.

They are currently trying to pressure me into commiting to them.

I look forward to your feedback.



Answer to the Question

Posted by Att. Patrick on 07-11-2019 11:23:14

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

First, if you were not entitled to receive the payments they made to you each month because you had resigned, then you are not entitled to keep the money and you do need to pay it back to them. You can't claim that their mistake in continuing to pay you each month results in you being able to keep the money. 

Their claim would be that you were unjustifiably enriched at their expense. i.e. they paid you when there was no cause to pay you. Their claim would be, "pay us back".

My advice is to sign an acknowledgement of debt (AOD) in terms whereof you are given a period of time to pay it back. You'll need to concede some interest, but you should negotiate the payments for as long as possible.

If you do not agree to the AOD (because you don't need to!) then they will most probably issue a summons and sue you for the money. They will have to have the summons served on you at your house, in order to commence the process. 

If you've already spent the money, then that does not mean that you are not obliged to pay them back. You still need to return the money to them - because it is not your money. 

If you own nothing, and have no assets, then that means that the company's probability at successfully recovering the amount from you through the court system is at risk. I mean, what will the sheriff attach?

In order to escape this, you could simply emigrate. They won't then be able to serve the summons on you.

If the business is liquidated, the liquidator could very well come after you to recover the money. Just because the business is liquidated, does not mean that the debt is extinguished.

Yes, you can make whatever offer you want. You must negotiate as best as you can. 

If you know that they paid the money to you in error, then that is not income and should not be reflected in your income tax return. 

Yes, if they ultimately get a judgment it could be a hollow judgment (as I said above) because there is nothing to attach. They can't blacklist you because this debt did not arise as a result of a credit agreement.

The sheriff could attach your current salary - actually just a portion of it. They would need to go to court to ask a magistrate to make an order as to what amount they can deduct each month. They can't just take the whole thing!

Don't feel pressured into signing anything. Only sign something if you are comfortable with the terms. If they issue a summons, you can defend it - which you SHOULD do. That will stop them from being able to take a default judgment against you. Don't simply ignore the summons!

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

If you would like to view the entire answer, you will need to either login or register a FREE account.


DISCLAIMER: Advice or answers from Lawyers on SA Legal Advice are not substitutes for the proper advice of an Lawyer. SA Legal Advice is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Lawyer who assists with your question is not your Lawyer, and the response above is not to be considered to be legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains. The responses above are from individual Lawyers, not SA Legal Advice. The site and services are provided “as is”. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service.