Make your own free website on Tripod.com
Mallinicks Attorneys Articles Menu Mallinicks Web Site

Have you been Sued By Someone Out Of The Small Claims Court?

Bar

When you receive a summons you do not need to do anything, except appear at court on the specified date. You also do not need to notify the plaintiff or the clerk of the court of your intention to defend the matter.

However if you wish to defend the matter, it is advisable before the hearing to file a statement of defence, explaining the grounds for your defence. This will clarify what allegations you admit and deny. This statement is simply a summary. You do not need to give extensive details of your defence and the evidence you plan to bring to court.

Some examples of a defence are:

Remember to keep and present to court all original documentation, such as a receipt proving payment.

Regardless of your defence, you may also set out a counterclaim, against the plaintiff - you do not need to institute a separate summons against the plaintiff to do this.

For example: The plaintiff sues for a balance of money allegedly owed by you on the purchase price of a car. You make a counterclaim, stating that the plaintiff has failed to pay for services provided to him by yourself. Your counterclaim must set out the grounds upon which it is based and must not exceed R3000.00.

The advantage of the statement of defence is that once the plaintiff learns that you have a defence and/ or a counterclaim, he/ she may decide to withdraw his/ her claim or try to settle it out of court. The statement also helps you prepare your case, and briefs the commissioner on the main issues of the dispute before the court hearing.

You must sign your statement of defence, which may be typed or hand-written as long as it is legible. Head it with the names of the parties and the case number, which can be found on the summons. This will ensure that it is correctly filed by the clerk of the court, and that the commissioner receives it. You must deliver the original to the clerk of the court and a copy to the plaintiff. Be sure to keep a copy for yourself.

On the day of the hearing, you must appear at court at the requested time. If you fail to appear judgement may be granted against you in your absence. If the plaintiff fails to appear, you may request the court to dismiss the claim and apply for judgement against the plaintiff in respect of your counterclaim. (You will need to prove the plaintiff's liability and the amount of your counterclaim.)

If the court has dismissed the plaintiff's claim, the plaintiff may, with the consent of the court, sue you again in respect of the same claim. When both parties are present in court, the commissioner will hear the matter and make a ruling.

What if a judgement is granted against you in your absence?

You may be able to have the judgement removed, rescinded or varied. You need to apply to court within 6 weeks after becoming aware of the judgement. You will have to persuade the court that there is a good reason for rescinding the judgement. For example, if you have a good defence, or good reasons as to why you failed to appear at court to defend the matter. If the court is satisfied with your defence then the judgement will be rescinded.

Remember that although you may not be represented by an attorney in the Small Claims Court, you may seek legal assistance and advice in the drafting of your statement of defence and/ or counterclaim. You will, however, be liable for these costs.


'MALLINICKS'
ATTORNEYS
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 | Web site