How to claim via Small Claims Court

SMALL CLAIMS COURT

DOWNLOAD LETTER OF DEMAND HERE: Letter of demand

Description If there is someone owing you money, you can institute a civil action against that person. This means that you can have the person owing you appear before the Small Claims Court to try and make them return your money. The court makes the claiming process quicker and easier. Who may institute a claim?

* anyone except juristic persons such as companies, corporations or 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, corporations, municipalities or other entities within the area of jurisdiction of the court.

What amount can be claimed?

* An amount not exceeding R15 000

* If your claim exceeds R15 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

* for the delivery of movable or immovable property where the property does not exceed R15 000

* 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 R15 000)

* arising from liquid documents i.e. an acknowledgement of debt or a mortgage bond where the amount does not exceed R15 000

* arising from Credit Agreements as prescribed in terms of section 1 of the Credit Agreement Act where the amount does not exceed R15 000.

What matters are excluded from the jurisdiction of the court?

Claims:

* exceeding R15 000 in value

* against the State

* based on the cession or the transfer of rights

* for damages in respect of defamation, malicious prosecution, wrongful imprisonment, wrongful arrest, seduction and breach of promise to marry

* for the dissolution of a marriage

* concerning the validity of a will

* concerning the status of a person in respect of their mental capacity

* 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 R15 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.

Interpreters:

* 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.

Steps to follow

Step 1: Contact the opposing party – Contact 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 court clerk – After 14 days report to the court clerk 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

* issue the summons

* 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 known as the respondent. The plain tiff 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 respondent may:

* comply with the applicant’s claim

* deliver a written statement to the clerk of the court and send a copy to the applicant

* 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 that:

* you have all the relevant documents on which your claim is based with you

* all your witnesses are present

* 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 final, 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. – In case judgment is given in your favour:

* The opposing party must immediately pay any or all the money owed to you according to the judgment if they have the money available. Immediately issue a receipt for any money paid.

* In case the opposing party is unable to comply with the judgment immediately, the court will investigate the respondent’s financial position and determine their ability to settle the judgment debt and any costs incurred and make an order for repayment. Important:

– 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. Cautionary principle for persons using the Small Claims 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.