HIGHLIGHTED SERVICES: Recover debt
If someone (a debtor) owes you money, you can sue (institute a civil action against) him or her to recover the debt that he or she owes you. This means that you can have your debtor appear before the Small Claims Court to try to make him or her return your money. This court makes the claiming process quicker, easier and less expensive.
Who may institute a claim?
- Anyone except juristic persons such as companies, corporations or associations.
- A person under 21 must be assisted by a parent or legal guardian.
Against whom may a claim be instituted?
- With the exception of the State (includes National, Provincial and Local Government), against anyone, including companies, corporations, or other entities within the area of jurisdiction of the court.
What amount can be claimed?
- An amount not exceeding R 12 000.
(This amount is determined by the Minister from time to time in the Government Gazette. Latest amendment: GG33696, N 985, 27 Oct 2010).
- If your claim exceeds R 12 000 in value, you can institute a claim for a lesser amount to pursue your case in the Small Claims Court.
Example of types of cases that may be referred to Small Claims Courts
- Actions for repayment of monies lent
- Actions for the delivery of movable or immovable property where the property does not exceed R12 000
- Action against an occupier of a property within the jurisdiction of the court (provided that the value of that right to the occupant does not exceed R 12 000)
- Actions arising from liquid documents i.e. an acknowledgement of debt or a mortgage bond where the amount does not exceed R 12 000.
- Actions arising from Credit Agreements as prescribed in terms of section 1 of the Credit Agreement Act where the amount does not exceed R 12 000.
- Actions for services rendered.
What matters are excluded from the jurisdiction of the Court?
- Claims exceeding R 12 000 in value.
- Claims against the State (including Local Government/Municipality).
- Claims based on the cession or the transfer of rights.
- Claims for damages in respect of defamation, malicious prosecution, wrongful imprisonment, wrongful arrest, seduction and breach of promise to marry.
- Claims for the dissolution of a marriage.
- Claims concerning the validity of a will.
- Claims concerning the status of a person in respect of their mental capacity.
- Claims in which specific performance is sought without an alternative claim for payment of damages, except in the case of a claim for rendering an account or transferring movable or immovable property not exceeding R 12 000 in value.
Are you compelled to institute your case in the Small Claims Court?
- No, you may choose whether you want to institute it in the Small Claims Court or any other competent court.
Legal Representation and assistance in the preparation of your claim
- Representation by an attorney or advocate is not allowed. You may, however, obtain prior advice from an attorney at your own cost.
- Legal assistants and clerks of the Small Claims Courts will assist you free of charge.
- Any of the official languages of South Africa may be used in the court.
- Arrangements for an interpreter must be made with the clerk of the court beforehand if evidence is to be given in a language with which one of the parties is not sufficiently conversant.
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.
Small Claims Courts Act, 1984 (Act 61 of1984), and regulations, Magistrates’ Courts Act, 1944 (Act 32 of 1944), Supreme Court Act, 1959 (Act 59 of 1959), Sheriffs Act, 1986 (Act 90 of 1986), Debt Collectors Act, 1998 (Act 114 of1998), Promotion of Equality and Prevention of Discrimination Act, 2000 (Act 4 of 2000), Constitution of the Republic of South Africa, 1996 and related regulations are available on this page: http://www.justice.gov.za/legislation/acts/acts_full.htmlService standard
- You shall be treated respectfully, equally and with dignity.
- If you were treated disrespectfully or in a discriminatory way, you can complain to your nearest equality court. All high courts and magistrates’ courts serve as Equality Courts.
If you appoint an attorney to sue a person or to defend you against someone who is suing you, you will have to pay the attorney for his or her services.
The only costs incurred in the Small Claims Courts are for posting the letter of demand as well as sheriff’s fees for the summons.
Forms to complete
You may contact you legal representative or contact your nearest Regional Office if you have any enquiries or complaints.
List of all established Small Claims Courts: http://www.justice.gov.za/scc/scc_courts.htm