Courts in South Africa
The Small Claims Court allows you to institute minor civil claims in a speedy, affordable and simple manner without using an attorney.
Who may institute a claim?
- Anyone except juristic persons such as Companies, Close Corporations and Associations.
- A person under 18 must be assisted by a parent or legal guardian.
Against whom may a claim be instituted?
- With the exception of the State, against anyone, including Companies, Close Corporations and Associations.
- NB: Please note that claims cannot be instituted against Municipalities/Local Government in a Small Claims Court.
What amount can be claimed?
- An amount not exceeding R 15 000. (This amount is determined by the Minister from time to time in the Government Gazette. Latest: G 37450 RG 10153 GoN 185, 18 Mar 2014.
- If your claim exceeds R 15 000 in value, you can institute a claim for a lesser amount to pursue your case in the Small Claims Court.
STEPS TO FOLLOW
Cautionary principle for persons using the Small Claim Courts.
If you intend instituting a claim in the Small Claims Court, ensure that the opposing party is able to compensate you should the judgment be in your favour. It is futile to institute a claim against another person who is unemployed and who possesses no property.
- Step 1: Contacting the opposing party
Contact the opposing party (the person against whom you are instituting legal proceedings) either in person, in writing or telephonically and request them to satisfy your claim.
- Step 2: Letter of demand
If the opposing party does not satisfy your claim, send them a written demand setting out the facts on which the claim is based and the amount you are seeking. Afford the opposing party 14 days from receipt of your letter to settle your claim. Deliver the written demand by hand or registered post to the opposing party.
- Step 3: Going to the clerk of the court
After 14 days report to the clerk of the court with the following documents:
- Proof that the written demand was delivered, such as a post office slip.
- Any contract, document or other proof upon which your claim is based or that has regard thereto.
- The full name and address (home and business addresses, if available) and telephone number of the opposing party.
- Step 4: Summons to the opposing party
The clerk of the court will examine your documents and assist you in drawing up the summons. The clerk of the court will issue the summons and hand it to you to hand to the opposing party. The clerk of the court will also inform you of the date and time of the hearing of the case.
- Step 5: Delivery of the summons
Serve the summons on the opposing party in person and have them sign for the document. The plaintiff is required to make copies of the summons, letter of demand and return of service. The copies must be served on the opposing party (otherwise known as the defendant). The plaintiff must deliver the original summons and return of service to the clerk of the court as soon as possible before the hearing to ensure the information is kept in the court file.
What might happen between Step 5 & 6:
POSSIBLE STEPS BY THE OPPOSING PARTY AFTER RECEIPT OF THE SUMMONS
• The defendant may comply with the plaintiff’s claim.
• The defendant may deliver a written statement (plea) to the clerk of the court and send a copy to the applicant.
• The defendant may issue a counterclaim by delivering a written statement that contains the same particulars as those required for a summons to the clerk of the court.
• If a plea or a counterclaim is instituted, the court proceedings must still be attended.
WHAT DO YOU DO IF THE OPPOSING PARTY HAS SATISFIED YOUR CLAIM?
• Issue a written receipt immediately
• Inform the clerk of the court that your claim has been settled and that you are no longer proceeding with the case.
- Step 6: Hearing
• You must appear in court in person.
• Ensure you have all the relevant documents on which your claim is based with you.
• Ensure that all your witnesses are present.
• Ensure that you have the written proof that the summons was served on the opposing party.
• The court procedures are informal and simple.
• No advocate or attorney may appear on your behalf.
• The commissioner of the court will request you to state your case. State the facts as concisely as possible.
• Answer the questions of the commissioner and submit your exhibits. (document upon which your claim is based)
• No cross-examination between the parties is allowed. With the commissioner’s permission you may, however, put a few questions to the opposing party.
• Listen attentively to the opposing party’s explanations and inform the commissioner of any facts you believe have not been presented accurately.
• After the commissioner has heard you, your opposing party and any witnesses that may be present, the court can pass judgment. The commissioner may also indicate that judgment will be passed in writing at a later stage.
- Step 7: After judgment
In case judgment is given against you
• The judgment of the court is fi nal, unless some ground for review exists.
• Settle any order for costs that the court may make against you. The only possible costs can be those that the opposing party may have had in respect of fees for the sheriff.
• Abide by the decision of court.
- The above-mentioned merely informs you of the most important steps to be taken with regard to the institution of a case in the small claims court.
- Should you require assistance with any matter at all, the address and telephone number of the clerk of the small claims court can be obtained from your local magistrate’s office.