By Jolané van der Walt (LLB) (LLM)
The Small Claims Court (SCC) was implemented in South Africa to make justice less expensive and more accessible for everyone. Although 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.
Steps to follow
|Step 1 Attempt to settle||Before approaching the Small Claims Court, attempt to settle the matter first by contacting the opposing party – you can either do this in person, by telephone or in writing to ask this person to pay you the due amount.|
|Step 2 Small Claims Court Letter of Demand||If the person refuses to settle / satisfy your claim, then you have to proceed with a Small Claims Court Letter of Demand. This letter needs to clearly set out the facts of your case as well as the amount you are claiming. It is recommended that you attach to the letter all the necessary proof to substantiate your claim. This can, for example, be quotes from a panel beater in the event that your vehicle was damaged or a copy of a signed loan agreement entered into between you and the opposing party. This letter can then be hand delivered (please ask the opposing party to sign your copy) or it can be sent by registered post (preferably). Allow 14 days to lapse and wait for the opposing party to make contact with you to settle the claim.|
|Step 3 |
Go to the Clerk of the Court
|If your claim has not been settled after the 14 days, please attend to your nearest Small Claims Court, which can usually be found in the Magistrate Court. Request the Clerk of the Small Claims Court to assist you with the matter. You will need to provide a copy of the Letter of Demand as well as the proof that you hand delivered the letter OR proof that it was sent via post (take the post slip along). Also be prepared to provide the full details of the opposing party to the clerk. You will need to provide the residential/work address, name and surname as well as telephone number.|
|Step 4 Issuing of Summons||If all of the necessary information is provided to the Clerk, then the Clerk of the court will issue the summons and hand it to you to hand to the opposing party or via the sheriff of the court. The Clerk of the court will also inform you of the date and time the case will be heard in court.|
|Step 5 Hearing||If the opposing party has not settled your claim by the time the court date approaches, you will have to attend the court hearing. The case is not heard by a judge or magistrate, but rather by a commissioner, who hears each side of the story and asks questions. Important: You must appear in court in person. |
– Ensure you have all the relevant documents on which your claim is based.
– Ensure that you have the written proof that the summons was served on the opposing party.
– The court procedures are informal and simple.
– The commissioner of the court will ask you to state your case.
|Step 6 Judgment||If the commissioner awards judgment in favour of the Claimant then the Defendant must pay the amount within 10 days thereof or by the date agreed to by the parties and the court.|
|Step 7 Failure to pay||Should the Defendant fail to abide by the judgment then the Claimant can approach the Magistrates Court for a section 65A application or a warrant of execution. Section 65A(1) of the Magistrate’s Court Act provides a procedure to inquire into the financial position of a Defendant to enable the court to make a subsequent order to settlement of the judgment debt with alternative payment arrangements. The warrant is to attach any property owned by the Defendant in order to sell same at an execution auction.|
Claims Excluded from the Small Claims Court
Unfortunately, there are legal matters that cannot be taken to the Small Claims Court. These include claims that:
- Claims higher than R20 000 in value;
- Go against a judgement or court order (appeals);
- Claims for damages in respect of defamation, malicious prosecution, wrongful imprisonment, wrongful arrest, seduction and breach of promise to marry;
- Attempts to challenge the Government or a local municipality;
- Challenging the validity of a Will.
- A claimant may only institute a claim that does not exceed R20 000.00 (the previous maximum claim amount was increased from R15 000.00 to R20 000.00 on 1 April 2019).
- It is imperative to keep in mind that the person or opposing party you intend on taking to the Small Claims Court, must be in a position to repay you if your claim is successful. It will be futile to institute a claim against someone who is unemployed or who does not own property that can be sold to repay you.
Be careful not to miss your hearing date. If you are not at court when your matter is called, it will be removed from the roll. This means that you will have to start anew and serve the summons again for a new date of hearing that will be provided to you by the Clerk of the court, to have your case re-enrolled.
Jolané van der Walt (LLB) (LLM) from Legal Hero