A small claims court is a tribunal that is established and whose activities are regulated based on the small claims court Act 61 of 1984.
It is designed to provide judicial determination based on disputes that involve small amounts of money.
It allows you to institute minor civil claims in a speedy, affordable and simple manner without using an attorney
Demands that are R20,000 and below can be easily instituted by a plaintiff, but if the demand is more than R20,000, it means that some part of such claim is likely to be abandoned.
This small claims court can be accessed by private individuals, business owners, sole proprietorships etc. it should however be noted that for those who have many claims against their defendant, another demand can only be submitted after judgment has been passed on the first one.
Therefore, only one request can be lodged at a time.
If your demand is below R20, 000 you can proceed with the small claims tribunal only that you cannot institute another one for the abandoned amount later. SCC are not expensive, and they are usually candid and fast. Also, you do not have to seek any legal representation from either an attorney or an advocate.
To take someone to SCC in South Africa, there are some procedures you must follow which are explained below:
Step 1- Privately contact the other party
Before you take any legal measures, it is usually advised that you first contact the person you want to institute the legal proceeding against. You can do this in person, through telephone or in writing and ask that your demand be satisfied. But in case this process fails, then you can proceed to the next steps.
Step 2 – Letter of demand Small Claims Court
The next step that you need to take is to deliver a letter of demand (LoD) to the defendant. You can do this either by hand or by sending it as registered post. Note that if you are sending the letter by hand, you do not necessarily have to do it yourself; you can send it through someone else including the tribunal Sheriff (only that you will pay a token). Then, you have to give 14 working days to the defendant to settle your demand and bear in mind that the 14 days begin on the day after the defendant has received the LoD.
Step 3 – The summons
After the letter of demand has been issued, if your request is not settled within the stipulated 14 working days, the next thing to do is to get a summons from the clerk of the small claims tribunal. This can be issued to you after you have submitted the related documentation on the delivery and the clerk is satisfied with it. Specifically, the summons indicates when and where you and the defendant will meet in the tribunal, but it has to be received in not less than ten working days before the hearing would take place.
Step 4 – Hearing date
Once you have successfully served the summons, you must be available at the tribunal on the said date, if not, your case would be outrightly removed, and you will have to start the process all over. Then, as regards the small claims court procedure, on the date of hearing, you need to produce proof that the summons which you served was delivered to the defendant.
Also, the Commissioner will ask you to state your case factually and afterward, you may be asked some questions which you should answer honestly. If you have any exhibits or documents, you can tender them as well.
Step 5 – After the court proceedings
After the tribunal proceedings, if the defendant loses the case, it means that within ten working days, the demand must be paid and the sheriff’s fees refunded to the claimant. However, if it is the plaintiff that loses, it means he or she has to accept his or her fate.
Also, neither the defendant nor the plaintiff may be able to appeal the proceeding afterward. The only thing that can happen in the case of a loss is that if you feel that the commissioner was unfair or bias in giving the verdict, you may request that the case should be reviewed.
However, you need to note that, the letter of demand (LoD) is available in all small claims court offices across the country, and you can get one for free. If, after you have delivered the LoD to the defendant and he or she refuses to sign the copy, you need to get an affidavit where you will state everything that happened. And following this, if you deliver the summons through the Court sheriff, the money incurred would be added to your demand should the small claims court rules end up in your favor.
While the issues that must be brought before this court must not be more than R20, 000.00 in value, specifically, the following are some of the cases a small claims court would entertain.
1.Actions that involve the delivery or transfer of property, irrespective of whether it is movable or immovable;
2.Issues that relate to the ejection of an occupier of landed property;
3.Cases that have to do with a mortgage bond or liquid document;
4.Credit agreement issues based on the National Credit Act;
5.Counterclaims based on any of the actions mentioned above.
Should the defendant refuse to show up in the tribunal, what the commissioner will do is to, first of all, ensure that you have a valid case. Once that is confirmed, the next thing that he or she does is to award you a default judgment.
The defendant who has defaulted is mandated to settle whatever the demand is within ten working days which starts to count from the first working after the information of the default judgment has been received.
The only case wherein the default judgment can be rescinded is if the defaulter has a valid defense that he or she can demand and a valid reason(s) why he or she failed to appear in the tribunal. So, as soon as he or she gets the information about the judgment, a rescission application can be lodged with the small claims court office.
More so, it does not cost anything to appear in court, you should however be reminded that certain expenses may be incurred while you are at it which may include fuel, postage costs if you are sending the letter on demand as a registered document, the amount paid to the tribunal sheriff who serves the summons and the cost of tracing the defendant. You can however add this expenses up to your damage claim.
Usually, a defendant is expected to pay immediately after the judgment has been passed and it rules in your favor. And once this is done, a receipt is issued immediately. On the other hand, the court can grant the defendant the opportunity to determine his/her payment plan which must be followed through.
However, there are cases whereby the defendant deliberately refuses to pay and then ignore the order of the court, in cases like this, you can persistently ask the person until he or she pays up and if that still fails; you can refer the case for magistrate court rules.