The guidelines in the Small Claims Court
The primary purpose of the Small Claims Court is to promote access to justice for disadvantaged groups who may not afford litigation on ordinary civil matters.
It is designed to provide a prompt, informal, user - friendly and inexpensive way to resolve minor civil disputes, and there are 250 Small Claims Courts around the country. Often, going to the Small Claims Court is the best way for small claims since the Small Claims Court is simple, free and fast.
The form and nature of a Small Claims Court is that the rules and procedures are not as complicated as in higher courts. The court processes are simplified to enable the litigants to understand and conduct their cases with ease; and it is not a court of record ie . the proceedings are not recorded except for records kept in a register by the Clerk of Court.
Anyone may institute a claim in the Small Claims Court except juristic persons such as Companies, Close Corporations and Associations; and persons under 18 – they must be assisted by a parent or legal guardian.
A claim may be instituted against anyone , including Companies, Close Corporations and Associations. Please note that claims cannot be instituted against Municipalities/Local Government and the State in a Small Claims Court.
The maximum amount claimable is R12 000. This increased from R7000.00 in 2010. If your claim exceeds R12 000 in value, you can institute a claim for a lesser amount to pursue your case in the Small Claims Court.
There are various causes of action which can result in a claim in a Small Claims Court, ie. An action for repayment of monies lent - this is where the plaintiff has borrowed money to the defendant and the defendant has failed to pay over the money either during the stipulated time as per their agreement or upon demand by the plaintiff.
An action for the delivery of movable or immovable property – this is where the defendant’s indebtedness to the plaintiff arises from property that the defendant had bought from the plaintiff and fails to pay for, it the plaintiff can sue the defendant in the Small Claims Court.
An action against an occupier of a property - these are usually actions where the defendant’s rental of the plaintiff’s property is in arrears .
Actions arising from liquid documents - these are actions wherein the plaintiff’s claim is based on a document like an acknowledgement of debt, a mortgage bond, a promissory note or a cheque as the case may be.
Actions arising from Credit Agreements as prescribed in terms of section 1 of the Credit Agreement Act, 1980 (Act 75 of 1980) - these are actions wherein the plaintiff is a sole proprietor who sometimes provides credit facilities to his/her customers, where the defendant has failed to pay his/ her instalments in terms of the credit agreement.
The last possible action would be an action for damages - the plaintiff may also sue the defendant for damages arising, for example from a motor vehicle accident wherein the damage to the plaintiff’s motor vehicle does not exceed R 12 000 when assessed.
You are not compelled to institute your claim in the Small Claims Court; you may pursue your claim in any other competent court.
Representation by an attorney or advocate is not allowed. You may, however, obtain prior advice from an attorney at your own cost. Legal assistants and clerks of the Small Claims Courts will assist you free of charge. It is also absolutely free to go to the Small Claims Court.
Any of the official languages of South Africa may be used in the court. Arrangements for an interpreter must be made with the clerk of the court beforehand if evidence is to be given in a language with which one of the parties is not sufficiently conversant.
There are however, certain matters which are excluded from the jurisdiction of the Small Claims Court, namely: - claims exceeding R12 000 in value; claims against the State (including the Municipality/ Local Government); claims based on the cession or the transfer of rights; claims for damages in respect of defamation, malicious prosecution, wrongful imprisonment, wrong ful arrest, seduction and breach of promise to marry; claims for the dissolution of a marriage; claims concerning the validity of a will; claims concerning the status of a person in respect of their mental capacity; claims in which specific performance is sought without an alternative claim for payment of damages, except in the case of a claim for rendering an account or transferring movable or immovable property not exceeding R12 000 in value.
A step by step procedure would include: Contacting the opposing party: Contact the person you want to take to the Small Claims Court in person by telephone, email or in writing asking them to address the claim out of court.
A Letter of Demand: If the opposing party does not satisfy your claim, send them a written demand informing them of the facts on which the claim is based and the amount of money claimed. Deliver the letter by hand or by registered post.
Give the person a maximum of 14 days from receipt of letter to respond to and settle the claim.
Going to the Clerk of Court: After 14 days, report to the Clerk of Court with the following documents - proof that the letter of demand was delivered, proof/any document upon which your claim is based, full names, addresses and telephone number of the opposing party .
Summons to the opposing party: The Clerk of Court will examine your documents and assist you in drawing up summons. The Clerk of Court will issue the summons and hand it to you to hand to the opposing party. The Clerk of Court will also inform you of t he date and time of the hearing of the case.
Delivery of the Summons: Deliver the summons in person and have the opposing party sign for the document. The Claimant is required to make copies of the summons, letter of demand and return of service. The original summons and the return of service should be returned to the Court as soon as possible so that the information is kept in the court file.
Appearance: You must appear in person on the court date with all the relevant documents upon which the claim is based. Ensure that all your witnesses are present. The Commissioner will ask you to state your case and the opposing party’s response; he/she will pass a judgement on the matter. The judgement is final unless there is a good ground for review.
The judgement might be in favour or against you. If it is in favour, the opposing party will be ordered to pay you. If they fail to pay, the court will investigate his/her financial position to determine whether he/she is able to pay. If the outcome is against you, you might be ordered to pay for the costs incurred by the opposing party during the litigation.
Appeal and review: No appeal may be filed against an order or judgement of the Small Claims Court. The court judgement may be referred to the Supreme Court for Review on the following basis only: absence of jurisdiction of the court, bias, malice or corruption on the part of the Commissioner, and gross irregularity with regard to the proceedings.
Date: 11th March 2014
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