The Small Claims Court (SCC) allows you to institute civil claims through a quick, affordable and simple process without the need to use an attorney.
- WHO CAN CLAIM:
The Claimant/Plaintiff must be a natural person. No juristic persons such as Companies and Associations. A person under 18 must be assisted by a parent or legal guardian.
- WHO CAN YOU CLAIM FROM:
Any natural person, Company or Association except the State (Municipalities, Local Government etc.)
- WHAT AMOUNT CAN BE CLAIMED:
Currently an amount not exceeding R 15 000.00. If a claim exceeds this amount in value, then the Claimant can claim a lesser amount to pursue the matter in SCC.
Representation by an attorney or advocate is not allowed. Clerks of the SCC will however assist you free of charge. Arrangements for an interpreter in any of the official languages of South Africa must be made with the clerk of the court before the matter is set down to be heard.
- WHAT CLAIMS ARE EXCLUDED FROM THE JURISDICTION OF THE SCC:
- Claims exceeding R 15 000 in value;
- Claims against the State (including Municipalities/Local Government)
- Cession or transfer of rights;
- Damages related to defamation, malicious prosecution, wrongful imprisonment/arrest;
- Breach of promise to marry or dissolution of marriage;
- Claims concerning the validity of a will;
- Specific performance without an alternative claim for payment of damages;
- WHERE TO BEGIN:
To pursue a claim in the SCC, it is recommended that the Claimant ensures the opposing party, the Defendant, is able to satisfy any judgment in their favour. The matter will have poor prospects of success without current and sufficient contact details or a physical address for the Defendant, and the Defendant should be employed and, or possess viable assets.
STEP 1 – LETTER OF DEMAND
A letter of demand in terms of section 29 off the SCC Act must be sent to the Defendant per registered mail within 3 years of the claim arising. Should the Defendant fail to respond or pay you within 14 days of sending the demand, then the Claimant needs to provide the SCC with a copy thereof and any other documentation in support of the claim including proof of the registered post receipt, delivery receipt, or delivery affidavit.
Herewith the link to the letter for your ease of reference:
STEP 2 – SUMMONS
The clerk of the court must then help the Claimant prepare a summons to compel the Defendant to appear in court on a set date. The summons may be delivered by the Claimant or the sheriff of the court for which a service fee is payable and for the Claimant’s own account.
The Defendant may settle the claim and if so the Claimant must inform the clerk of the court. If the Defendant elects to defend or counter claim then he/she must deliver a written statement to the clerk of the court before the hearing date.
Herewith the link to the summons for your ease of reference:
STEP 3 – THE HEARING
The Claimant will have to orally convey a background summary of the matter to the Commissioner of the court and provide all documentary evidence related to the claim to the court, namely the letter of demand and proof of postage, the summons and proof of delivery. The Defendant will also be given an opportunity to state their case. Questions posed by the Commissioner of the court must be answered diligently and he/she may allow the parties to pose questions to each other.
STEP 4 – JUDGMENT
If he 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.
APPEALS OR REVIEW
If a party is dissatisfied with the outcome of the hearing then the matter may be referred to the High Court for review but on 3 grounds only, namely:
- Lack of jurisdiction in that the court did not have authority to adjudicate the matter;
- The Commissioner was bias, had conflicted interested or was corrupted;
- Gross procedural irregularity in that the rules of the court was not followed.
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.
Herewith the link to the S65A and Execution application for your ease of reference:
This document has been prepared for the use and benefit of Legal and Tax members. It is intended merely as a guideline and is not a comprehensive review of the law. Please contact our offices should you require any information on any aspect herein. A copy of this guide can also be viewed on our website at www.legalandtax.co.za or may be obtained through our Customer Care Call Centre on 0860 587 587.