How to Resolve Your Legal Problem in the Small Claims Court

The Small Claims Court (SCC) was implemented in South Africa to make justice less expensive and more accessible for everyone. Essentially, the court is there for people who cannot afford long, expensive civil litigation and whose claims are not large enough to justify it.

As the name suggests, the Small Claims Court is exactly just for that: claims that do not exceed R20 000 (the maximum claim was increased from R15 000 on April 1, 2019). While you are not allowed to have legal representation when presenting your legal case, nothing stops you from seeking legal advice to learn more about your legal rights in the matter before you approach the court.  What’s more, all official languages may be used in the Small Claims Court.

Which Type of Matters can I Take to the Small Claims Court?

  • Repayment of money: If someone owes you cash, and you can prove in some shape or form that they do and haven’t repaid you at the agreed time, then you can take them to the SCC.
  • Claiming for a transaction: If someone has purchased furniture or appliances from you via a private sale and have yet to pay you, you can take the matter to the SCC.  The total value of the goods cannot exceed R20 000, however.
  • Receiving rent money: If a tenant does not pay their rent amount on time, you can take them to the SCC
  • Enforcing a claim stated in a legal document: If you have a cheque, acknowledgement of debt or promissory note, you can approach the SCC to impose the payment.
  • Claiming for damages: If you are involved in a car accident, for example, and you can prove that the other driver was at fault, you can take the issue to the SCC. Again, the amount cannot be more than R20 000
  • Credit agreements:  if you own a business that lends people money, and creditors aren’t honouring their payment agreements; you can take them to the SCC.

Unfortunately, there are legal matters that cannot be taken to the Small Claims Court. These include claims that:

  • Go against a judgement or court order
  • Exceed R20 000
  • Attempt to challenge Government or a local municipality
  • Call for a cancellation of marriage
  • Question the validity of a Will

 How do I go about Instituting a Claim in the Small Claims Court?

Always keep in mind that it is advisable to ensure that the person or opposing party you intend on taking to the Small Claims Court can repay you (should the court rule in your favour, of course). There is no point in instituting a claim against someone who is unemployed or doesn’t own property that can be sold to repay you.

  1. Contact the opposing party (the person you are taking to court)

Whether in person, through writing or via telephone, be sure to contact the person or opposing party and ask them to satisfy your claim.

  1. Send a letter of demand

If the opposing party does not satisfy your claim, send them a written letter of demand that contains all the facts of the case (reasons for the claim and the amount that is due for payment). It’s recommended that you give the person 14 days after the receipt of your letter to repay you. It’s best to deliver the letter via registered mail so that you have proof that you sent the letter.

  1. Visit the clerk of the court

After the two weeks have lapsed and you haven’t received payment from the opposing party, report to the clerk of the court with proof that the written demand was delivered (a post office slip, for example), any contract or correspondence that can help your case and the full name and address of the person you are claiming against.

  1. Acquiring a Summons

If the clerk is satisfied with your documents, he will help you draw up a summons.  You will be issued the summons, which you must then give the opposing party. You will also be told when the case will be heard in court.

  1. Delivering the Summons

Serve the summons on the opposing party in person and make sure they sign for the document.  You must make copies of the summons, letter of demand and return of service.  These documents must also be served on the opposing party.  You must then deliver the original summons and return of service to the clerk of the court as soon as possible before the hearing to ensure the information is kept in the court file.

  1. The Hearing

You must appear in court in person with all the relevant documents (written proof that the summons was served is crucial).  Make sure you have brought witnesses (if they help your case), but, remember, you are not allowed to have a lawyer represent you in the Small Claims Court.  The case is usually heard by a Commissioner and not a Magistrate or Judge.  The Commissioner will ask you to state your case, so make sure you know the facts, and recall them concisely.  This will help you answer any questions the Commissioner may have about the documents on which your claim is based.  While cross-examination between you and the person who owes you money is not allowed, the Commissioner may grant you permission to ask the opposing party a few questions.  The opposing party will also have the opportunity to state their case, so listen very carefully to what they say and make a note of any inaccuracies.

  1. The Judgement

After the commissioner has heard you, your opposing party and any witnesses that may be present, the court can pass judgment. The Commissioner may also state that judgement will be given in writing at a later stage. The ruling is final, and both parties must abide by the decision of the court.  The verdict cannot be contested unless there is some basis for a review.

How do I collect Payment after Judgement was Made?

If your claim is successful, it doesn’t mean that you will get your money immediately. In fact, if the person who owes you money doesn’t pay up after the 10-day grace period, you must report back to the court and state that the judgement remains unresolved.

The small claims judgement will now be transferred to the Magistrate Court office and be given a civil court case number. This means that the ruling is now a civil court decision, which means it will be recorded by the credit bureau and, ultimately, blacklists the person who owes you money from obtaining credit or a loan.  Additionally, this will make life very difficult for the person because it means that they would have to go through a nightmarish process of trying to remove the listing from their name.

Meanwhile, the Magistrate Court staff members will help you complete a Writ of Execution, which must then be taken to the Sheriff.  This document legally entitles the Sheriff to seize any attachable property from your debtor that covers your claim.  Should there be no property to work with, the civil court will notify the person who owes you money to appear in the Debtor’s Court, where the court will order him/her to pay off what they owe you in monthly instalments.

How to Defend Yourself in the Small Claims Court

If the tables have turned and you find yourself on the receiving end of a summons, here’s what you need to do.  Firstly, you must state your case in a letter (this is also called a ‘plea’) that thoroughly tells your side of the story and hopefully disputes why the plaintiff’s case has merit or what the claim is exaggerated.

You are not legally required to file this plea in response to a claim, but it’s an essential element for the Commissioner to have while preparing to hear the case.  Make sure the clerk adds your plea to the court file.  The Commissioner will then have more to work with when considering both sides of the story.

Final word:  whether you are the plaintiff or defendant, here are some tips to bear in mind:  always be respectful, pay careful attention to all the necessary documents that are required because the Commissioner will scrutinise them, don’t get into an argument with the opposing party and make sure you ask the Commissioner to clarify anything that might be unclear.

DISCLAIMER