Have you got a case that demands you to take some legal actions but you do not have the financial implication of getting an attorney who would represent you in court or something? The good news is that there are small claims courts across the country where you can get the necessary court proceedings. More so, are you concern with what cases go to small claims court? Who pays court costs in small claims court? How to win in small claims court in South Africa or what happens if the plaintiff loses in it? The answers are provided in this article.
An interesting thing about small claims tribunals is that it is a platform that private individuals can make do with. Then, those who are into business and have many claims against their debtors have the privilege of lodging a request at a time; they can only submit another after judgment has been given on the first demand. Businesses that are not incorporated and sole proprietorships can also avail themselves of the opportunity.
What is the purpose of small claims court?
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. What is the maximum amount you can sue for in small claims court? Demands that are R20,000 and below can be easily instituted by a plaintiff, but should the demand be more than R20,000, it means that some part of such claim is likely to be abandoned.
As long as your demand is below the said amount, you can continue with it in the Small Claims tribunal only that you cannot institute another one for the abandoned amount later. The good thing about it is that the procedures are not expensive, and they are fast and straightforward. More so, you do not have to seek any legal representation from either an attorney or an advocate.
How do I take someone to small claims court in South Africa?
Before you can institute a demand in the tribunal, there are specific processes that you need to understand and follow. These are discussed below:
Step 1- Privately contact the other party
Before you take any legal measures, it is usually advised that you first of all contact the person that you want to institute the legal proceeding against. You can do this in person, telephonically 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 by yourself, you can send another person on your behalf 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 South Africa 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.
A few things that you need to note are 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.
- 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 favour.
What kind of cases can be heard in small claims court?
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 that a small claims court would entertain.
- Actions that involve the delivery or transfer of property, irrespective of whether it is movable or immovable;
- Issues that relate to the ejection of an occupier of landed property;
- Cases that have to do with a mortgage bond or liquid document;
- Credit agreement issues based on the National Credit Act;
- Counterclaims based on any of the actions mentioned above.
What happens if the defendant fails to appear in small claims court?
In a situation where the defendant does not 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 judgement. 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 defence 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 judgement, a rescission application can be lodged with the small claims court office.
How much does it cost to go to small claims court?
Really, it does not cost anything to appear in court. However, you should bear in mind that there are a few expenses that may be incurred in the process and these may include fuel for travelling, postage costs if you are sending the letter on demand as a registered document. Also, the amount paid to the tribunal sheriff who serves the summons and the cost of tracing the defendant are part. In this case, what you can do is to add up these charges to your damages claim.
What happens if a defendant does not pay a judgment?
Once a judgement has been given and the ruling is in your favour, or a default judgement is passed, it is expected that the defendant pays the demand immediately. After that is done, then a receipt will be issued. Another thing that the tribunal can do is to grant the defendant the opportunity to determine the plan that he or she wants to follow in paying.
But then, there are some cases whereby the defendant would intentionally choose not to carry out the order of the tribunal. In this case, 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.
In conclusion, we have discussed the fact that any private individuals and businesses that are not incorporated can avail themselves of the opportunity that small claims court provide. We have also looked at the processes that must be followed when instituting a demand and what you can do in case the defendant does not follow the judgement of the small claims tribunal. So, we hope you find this article useful.