How To Take Your Own Action Through
Small Claims Court
The small claims court was set up to deal with cases speedily and cheaply, without a lawyer and without all the procedural rechnicalities usually involved in the other courts.
You may find the Small Claims Court useful if you have a civil claim to the value of about R3000; if your claim is less than three years old; and you cannot afford a lawyer.
Who may sue and be sued?
You may only sue as an individual. Close corporations, companies and statutory
bodies may not sue in the small claims court. However, you as an individual may
sue these bodies. A partnership may also bring a claim jointly in the name of all the individuals who makeup the partnership.
How do you bring your claim?
- The first step is to send to the defendant (the person you are suing) a letter of demand. This letter must state what you are claiming, and on what basis you are bringing your claim against the defendant. The defendant must be given at least 14 days from the date that they receive the letter to satisfy your claim. It is therefore advisable to send the letter to the defendant by registered post so that you have proof of when the letter is received. Keep a copy of the letter and the registered slip, as you may need to used these as evidence in court if the defendant fails to satisfy your claim.
- If the defendant fails to satisfy your claim as demanded; your next step is to have a summons issued against the defendant. Standard forms for these are available at the small claims Court. As plaintiff, you may serve the summons on the defendant personally or you may have it served on the defendant by the sheriff, in which case you must pay the sheriff's fee. Summons must be served on the defendant at least 10 days before the court date.
- On the court date you will appear before a Commissioner, who is not an employee of the state but is appointed either by a Magistrate or the Minister of Justice. A Commissioner may be an attorney, advocate or ex-magistrate with either at least five years practical experience, or lecturing in law and suitable practical experience.
- Make sure that you go to court well prepared with all documents that may serve as proof of your claim.
- If the defendant fails to appear in court, you may apply for judgement to be taken against the defendant's absence. Judgement will only be granted if thew court is satisfied hat you have proves that the defendant is liable, and that the amount of the claim is reasonable.
- If the defendant appears in court, only the Commissioner may questioon you and the defendant under oath.
- After hearing both arguments and considering the evidence presented to court the Commissioner will make a ruling.
What sort of cases are heard by the Small Claims Court?
The following types of cases or "causes of action" may be heard on condition that the value does not exceed R3000:-
The following are types of cases which may not be heard by the small claims court:
- claims for the delivery of movable property or transfer of immovable (i.e. land);
- claim for ejectment;
- claims arising out of a "liquid document" such as a bond or cheque;
- claim based on a credit agreement;
- claim for damages arising from negligence of the defendant e.g. car accident; and
.counterclaim where the defendant in turn brings a claim 'against the plaintiff.
- divorce matters;
- cases involving the validity of a will;
- cases involving the mental status of a person;
- cases in which specific performance is sought without an alternative for damages;
- cases in which damages of a certain kind are sought such as defamation, breach of promise to marry, malicious prosecution and so on; and cases in which an interdict is sought.
The Small Claims Court is not an effective tool for purposes of debt collecting. The law states that in the Small Claims Court, a summons issued by a plaintiff may not be delivered to a defendant where the claim arises from debts owed to a business or profession, until the previous case by the same plaintiff has resulted in judgement.
How to locate your local small claims court.
Enquire at your local magistrate's court office or legal aid office.
Members of the Mallinicks Women's Forum write the articles, which offer basic legal advice.
3rd Floor, Granger Bay Court, Beach Rd, V & A Waterfront, Cape Town 8001.
PO Box 3667, Cape Town 8000. E-mail | Website