“The more information that’s out there, the greater the returns to just being willing to sit down and apply yourself. Information isn’t what’s scarce; it’s the willingness to do something with it” (quote by Tyler Cowen).
We live in a time where the majority of South African fall in the brackets of middle class to low-income earners. Every cent counts, and in some cases, legal costs could exceed the amount you are claiming. Besides that, if you are suing a “bottomless pocket” company or person which that has a law firm at its disposal and on speed dial, it will swamp your attorney with pleas, motions, postponements and discovery requests, which will take up hours of attorney time and escalate costs rapidly. “Justice delayed is justice denied. This is very painful. This [takes a] terrible toll on [Plaintiff’s]. [Plaintiff’s] can’t have closure” (quote by Clifford Mann). Therefore, to institute a claim in the SCC, you must to do it personally and cannot make use of Attorneys. Attorneys can merely give you advice and assistance but may not represent you. This ensures that you are on equal footing with the Defendant and not intimidated by his “legal team”.
Whether you have a claim or a defence against another individual for a claim below R 15 000,00, you can go to the Small Claims Court and represent yourself. The Small Claims Court offers an inexpensive, easy and speedy means to issue for nominal monies due to you. The procedure is relaxed but you must formulate and have all your papers, proof and eyewitnesses prepared to do righteousness to your entitlement of monies due.
So, do you want to save on legal costs and get your money back at the same time? If so, all you have to do is be patient and read the remainder of this article. Yes, it’s a little intensive and detailed, but it will provide you with information that can provide you with clarity and understanding of the whole process. “A handful of men have become very rich by paying attention to details that most others ignored” (quote by Henry Ford).
The information is here, so sit down, be willing to do something with this and apply yourself.
A. SMALL CLAIMS COURT (“SCC”)
1.1. FORM AND NATURE
Small Claims Court is recognized and controlled by the Small Claims Court Act 61 of 1984 (“Act”). There are various Small Claims Courts that are open at diverse times to permit individuals to make use of the SCC without taking time off work to do so.
SCC provides reprieve to private individuals with minor civil claims and is intended to aid individuals with no legal background or legal knowledge. The rules and procedures are not as complex as in higher courts. The court procedures are easy to allow the complainants (also known as Plaintiff’s) to comprehend and represent their cases with comfort.
“A total want of jurisdiction cannot be cured by the assent of the parties” (quote by J. Patterson).
Jurisdiction means that a court must have authority to hear the matter. To understand jurisdiction, it is best to break it down into two elements namely:
(a) The amount claimed:
- The SCC may hear matters where amounts up to R15 000,00 are claimed.
- If your amount claimed exceeds R 15 000,00, you may still claim in the SCC, but you will have to abandon the amount that exceeds R 15 000,00 of your claim to remain in the SCC. For example, if your claim is for R20 000, you can abandon R5 000).
- Note that if you abandon part of your claim, you cannot claim that part at a later stage.
(b) Where the cause of action arose:
Cause of action is also known as the “type of case” and is determined by:
- the area of the SCC where the opposing party (“defendant”) lives or works or
- the area where the whole cause of action arose
- In terms of breaching a contract, the whole cause of action will be based on where the contract took place. In a contractual type of case, you need to show that:
- that the parties decided to the terms of the agreement you depend on on,
- that the defendant broke the agreement and that you are permitted to compensation of an amount in terms of the agreement or compensations due to the breach of the agreement.
- In terms of claim for damages caused, the whole cause of action will be based on where the damage was caused. For damages type of case founded on injury or damages to property, you need to show:
- that the defendant (or someone on his behalf or in his employ while carrying out their service responsibilities) caused the damage by unlawful conduct in a neglectful or deliberate way.
1.3. COST OF PROCEEDINGS
The clerks and legal assistance of the SCC will assist you FREE of charge. So, the only thing that will cost you at this point is to continue reading in order to understand how you can benefit from the SCC.
1.4. LANGUAGE TO USE IN THE SCC
Any of the indorsed languages of South Africa may be used in the SCC. If evidence is to be given in a language which one of the parties does not comprehend, then a translator can be organised with the clerk of the SCC in advance.
“A translator, like a witness on a stand…holds up his right and swears to tell the truth and nothing but the truth” (quote by Henry Wadsworth Longfellow).
1.5. WHO MAY SUE OR NOT SUE?
- Any natural persons, namely a human being, over 18 years. Any person under the age of eighteen years must be assisted by their parents or guardians who is under 18 years old.
- Juristic persons such as a company, corporation, association, trusts, and government may not institute claims.
B. MATTERS THAT CAN OR CAN’T BE INSTITUTED IN THE SCC:
(Matters to be dealt with may not exceed the value of R 15 000,00).
2. EXAMPLES OF MATTERS THAT CAN BE INSTITUTED IN THE SCC:
(The SCC may stop the proceedings if it is of the opinion that the case is too difficult or complex to be heard in the SCC, resulting in you to approach the higher courts).
- Repayment of monies lent or loaned;
- Delivery or transfer of movable or immovable property;
- Actions for ejectment contrary to the occupier of any properties within the area of jurisdiction of the SCC, for example outstanding rental;
- Actions arising from liquid documents such as a written unconditional acknowledgement of debt, loan, promissory note or cheque that is signed by the debtor or his agent;
- Action based on credit agreements;
- Claim for damages not exceeding R15 000 when assessed and
- Actions arising from Credit Agreements as prescribed in terms of section 1 of the Credit Agreement Act, 1980 (Act 75 of 1980).
- These are the claims by sole proprietors who provide credit facilities and the defendant has failed to make payment of his instalments.
3. EXAMPLES OF MATTERS THAT CANNOT BE INSTITUTED IN THE SCC
- Claims for more than R15’000;
- Claims on behalf of someone else;
- Claims not related to civil claims, which is that which cannot be monetarily related;
- Claims relating to unfair Labour disagreement or labour relation disagreements other than the simple implementation of a contractual right such as a claim for payment of a salary in terms of the contract;
- Claims obtained by cession which is the transfer of a right;
- Claims against the State (including municipalities and local governments);
- Claims challenging the validity of legislation, such as acts of parliament;
- Claims lodged by a company or other corporate body except if it is a counter claim. That is a claim by a company or corporate that has been sued and raises the claim against the Plaintiff that sued it as part of its defence or answer to the plaintiff’s claim;
- Claims for damages due to: Defamation, malicious prosecution, wrongful imprisonment, wrongful arrest and seduction
- breach of promise to marry
- Claims that have prescribed, which means claims which has been due prior to three years which has passed;
- Divorce or dissolution of marriage;
- Claims involving the interpretation and validity of wills;
- Claims which go against judgments or orders of court;
- Claims regarding mental capacity status;
- Claims for perpetual silence, meaning that you want the court to force the defendant who threatens a claim against you, to either institute it at a particular time or else to forfeit the right from claiming);
- Claims for specific performances, meaning that you want the court to force the defendant to do their contractual obligation without a substitute claim of damages. In other words, it would be a claim to request an interdict, which requests the court to make an order: barring the Defendant from doing something specific such as disclosing trade secrets or authorizing the Defendant to do something specific such as complete performance in terms of a contract.
C. SCC TIMELINE:
Before you even consider spending time or effort in pursuing your claim, ensure that the Defendant is able to have the means, such as a salary or property to attach and sell, to reimburse you should you acquire judgement in your favour.
4. STEPS TO FOLLOW TO INSITITUTE YOUR CLAIM
The following are the steps to follow:
- Contact the Defendant personally and attempt to resolve your claim. If you find no recourse or cannot contact the Defendant, then proceed with drafting and delivering a Letter of Demand.
- Going to the Clerk of the SCC: Summons
- Issue summons (and obtain a court date)
- Service of summons
- Steps by Defendant
- Hearing of the matter
- Appeal or Review (if necessary) and
- Enforcement of the judgment or order.
D. PROCESS TO INSITUTE YOUR CLAIM
I shall proceed to describe the above steps in detail below.
5. 1 THE LETTER OF DEMAND
5.1.1. Why A Letter Of Demand?
A letter of demand should set out the particulars of the facts and inform the Defendant of the fact that you are claiming a specific amount and that that amount claimed should be paid within 14 days from delivering the letter, failing which you will proceed with legal action. If you are unsure, you can approach the Clerk of your local SCC as they usually have a pre-printed template letter of demand.
5.1.2. How must it be delivered to Defendant?
The Letter of demand has to be delivered by hand, registered post or by sheriff to the Defendant. Should you make use of the sheriff to deliver the letter of demand, you shall have to bear the costs thereof.
If you serve the demand on the Defendant by hand, it is advisable to have someone attend with you and deliver it to the Defendant directly, or if not probable, to a person of 16 years or older at the same address where the Defendant lives. Do not forget to obtain the name and signature of the receiver to confirm the receipt of the letter of demand. If the receiver does not want to sign for receipt of the letter, you and the individual who attended with you should each make a statement under oath to confirm delivery.
5.2. GOING TO THE CLERK OF COURT: SUMMONS
If the amount claimed has not been paid within 14 days, go to the Clerk of SCC with the following documents:
- Copy of the letter of demand;
- proof that the letter of demand was delivered, such as the post slip or any other document that verifies that the letter of demand was given to the Defendant;
- proof or any document, such as any contract or agreement between you and the defendant, which proves the claim upon which your claim is based; and
- the Defendant’s personal and contact details such as his full names, address and telephone number.
.5.3. CLERK OF THE COURT ASSISTING WITH SUMMONS
- Once the Clerk of the SCC has the necessary, they shall the assists you in preparing the Summons.
- The following will be contained in the Summons:
(a) Facts regarding the Claim
It shall contain details as to how the claim arose and why you are instituting legal action which shall assist in proving your type of claim.
(b) Details about the Defendant
You need to provide as much of the Defendant’s details so that it assists the Sheriff of the Court to be able to identify the correct defendant. The address will also assist the court in determining whether it has authority to make an order over the Defendant.
(c) Amount claimed
The Clerk of the SCC will place the amount claimed.
(d) Costs incurred that shall be also claimed by the Defendant above the amount owed.
Although SCC is a “free service”, there will be costs that you incur to institute the legal proceedings and have your matter heard in the SCC. Provision will be placed to claim the costs incurred. Such costs and expenses that you might have incurred would be petrol for travelling, the tracing agent costs to locate the defendant, the postage costs of the registered letter of demand and the amount charged by the sheriff to serve the summons.
(e) Case number
This is explained below under the heading of “Issue of Summons”.
(f) Hearing date and time
The summons will further provide a court date and time for the hearing of the matter, warning the Defendant to come to court. You should inform any witnesses of the date and time of the hearing so that they can be present with you on the court hearing date. Further discussions will be discussed below under the heading of “Hearing”.
5.4. ISSUE OF SUMMONS
- Once the clerk of the SCC completes the details of the Summons, he shall provide a unique case number to your matter. Once this is provided and signed by the Clerk of the Court, the summons will be considered as being “issued”.
- The Summons will then be returned to you in order for you to attend to the delivery thereof either personally or by sheriff.
5.5. SERVICE OF SUMMONS
- Prior to the date of hearing, ensure that you have proof that the summons was served. It is importance of having proof of service is to ensure that the defendant was notified of the notice of the claim and the date of the court hearing date.
- The summons can be served either:
If you serve the summons personally on the Defendant, ensure that you follow the same procedure of acknowledgment of receipt as per the handing of the personally delivered letter of demand above; or
(b) By Sheriff of the Court
The sheriff fees will be for your cost at a nominal fee which has to be paid directly to the Sheriff.
The Sheriff of the Court generally serves a summons and provides a Return of Service certifying that the Defendant received the Summons. Ensure that you read the Return of Service as it will either:
- confirm that the summons was served on the Defendant; or
- confirm that the summons was not served on the Defendant, thus resulting in a Non-service. If this is the case, you will have to appoint a tracing agent to locate the current whereabouts of the Defendant and you have to attend to re-serving the Summons. The SCC will not hear your matter if the Defendant has not been served. Prior to re-serving, you should return to the clerk of the SCC to provide a new date for the hearing as in all likelihood, the summons will not be re-served timeously prior to the appearance date.
5.6. STEPS BY DEFENDANT
- The Defendant may appear on the court date and only then oppose your claim;
- The Defendant may provide you with a written statement stating his defence and grounds which his defence is based on;
- The Defendant may institute a counterclaim that comprises the facts of his claim; or
- The Defendant may settle the claim.
The day has finally come. On this hearing date, note that no attorneys may be present to act on your behalf. The proceedings are conducted informally and simply.
(a) What do you have to bring?
- The sheriff return of service has to be brought will to ensure that the Summons was served on the Defendant.
- Copy of the issued summons in case the clerk of the SCC is unable to locate your file.
- All your documents to prove and support your claim. Audio recordings and other proof may be accepted by the SCC.
(b) What happens during the hearing?
- If you arranged with the clerk of SCC for an interpreter beforehand, the interpreter will be present to interpret to the parties or their witnesses in any of the official languages of South Africa.
- The Magistrate, namely the presiding officer, will explain the procedure to the parties.
- The Magistrate will request you to present your case, in which you will have to state all the facts briefly.
- The Magistrate will question the parties, namely you, the defendant and the witness and thereafter provide the parties with an opportunity to also ask questions. Neither party is inevitably permitted to question the other party or his witnesses.
- Do not interject when the Defendant is speaking to the Magistrate. Listen and make notes. Once they have stopped speaking, address the Magistrate and bring to his attention any relevant facts or comments to what the Defendant has said.
- What happens after the hearing?
(c) The Magistrate of the SCC may provide either of the following decisions:
- Default judgment to be entered against the Defendant where he failed to appear on the court date;
- Order in favour of either party; or
- No order can be granted if the Magistrate is of the opinion that the evidence is not sufficient for the SCC to give a judgment. All is not lost; this matter will be removed but you are still able to start the whole process all again if you have additional and / or further supporting evidence for your claim.
6. APPEAL OR REVIEW
No appeal is allowed, but review is an option.
Review is not done with SCC but is referred to the higher courts. The grounds of review are:
- SCC has no jurisdiction;
- bias, spite or corruption on part of the Magistrate; or
- Gross indiscretion in relation to the proceedings.
7. ENFORCEMENT OF THE JUDGMENT OR ORDER
- If the Defendant fails to abide by the decision of the SCC and doe not pay the claim within the period provided by the SCC or within 10 working days, you may approach the clerk of the SCC or seek legal assistance as to the recourse to take.
- If you go to the clerk of the SCC, ensure that you present your summons and the copy of the judgement granted from the SCC together with the affidavit which states the outstanding amount and the calculations thereof.
Trials can drawn-out, monotonous and costly and this was indisputably the inspiration for the formation of the Small Claims Court. It occurs way to often that the costs of a trial can surpass the definite sum demanded.
So, the purpose of the Small Claims Court is that it is a speedy and a relaxed method of indicting a claim. The guidelines for the instituting legal action in terms of a claim has been abridged in order to afford amateur individuals chance to appear on their own matter without the need of an attorney.
(NOTE: this article is for information purposes only. Each case depends on merits of matter and should be consulted w