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Consumer Affairs
Thursday, May 1, 2008
A case of fair play

The Small Claims Court deals with cases where people wish to make claims against anyone, including companies, corporations, municipalities or other entities within the area of jurisdiction of the court. A person under the age of 21 must be assisted by his/her parent or legal guardian.

However, claims against the state and claims of amounts exceeding R7 000 cannot be made in this court. People whose claims exceed this value can, of course, institute a claim for a lesser amount in order to pursue their case in the Small Claims Court. Please be aware that quite a few web sites, including Cape Gateway, continue to reflect the old R3 000 limit, which is definitely wrong.
‘Juristic persons’, that is, companies, corporations or associations are not permitted to use the small claims court.
Other matters not entertained by the court include disputes regarding cession, the transfer of rights, defamation, wrongful arrest or imprisonment, divorce and breach of promise to marry, the validity of a will, or a person’s mental capacity, for example.
Representation by an attorney or advocate is not allowed. You may, however, at your own cost, obtain prior advice from an attorney. Legal assistants and clerks of the small claims courts will assist you free of charge.
How to institute a claim
It is important to try and first settle the claim yourself. Contact the opposing party in person (the defendant), by telephone or in writing, and request them to satisfy your claim.
If they refuse then you must address a written demand (setting out the particulars of the facts on which the claim is based, and the amount of the claim) affording them a minimum of 14 days from the date of receipt of your written demand to satisfy your claim. Deliver the demand by hand or by registered post to the opposing party.
Only after the 14 days has lapsed can you then approach the Small Claims Court to intercede. Report in person to the clerk of the court with proof that your demand was delivered to the opposing party. Hand over any relevant documents – a contract, a service or purchase agreement, for example, together with full particulars including address and telephone number of the opposing party.
The clerk and the legal assistant will examine your documents and assist you in drawing up a simple summons, which will then be handed to you together with a date and time for the hearing of the case.
You can then serve the summons yourself or, for a small fee, apply for the sheriff in the defendant’s district to carry out the matter for you.
Where the sheriff has undertaken the service, you must obtain his written proof, prior to the date of hearing. Do not forget to inform any witnesses, if any, of the date and time of the court appearance.
Now if the defendant ignored your initial letter of demand, you could well find that the official summons sparks him into action, and you get your claim paid without having to go to court. The defendant may haggle, and if so you will have to take a firm stand as far as any compromise you are prepared to acept. Indeed, it would be a good idea before commencing with your initial letter of demand to keep in mind the final figure you would accept, and stick to that amount whatever transpires after the summons. Inform the clerk of the court immediately that your claim has been satisfied and that you will no longer proceed with the case.
However, if the opposing party holds his ground, he is entitled to deliver a written statement, containing the nature of his defence, and particulars of the grounds on which it is based, to the clerk of the court and he must send a copy to you. He may even institute a counterclaim by delivering a written statement, which contains the same particulars as those required for a summons to the clerk of the court. Either way, the court proceedings must still be attended.
You must appear in court in person, and ensure that you have with you all the documents upon which your claim is based. Ensure that your witnesses, if any, are present, and 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 either your behalf, or that of the defendant’s. The commissioner of the court will request you to state your case. Start with the facts as concisely as possible. Answer any questions of the commissioner and submit your exhibits.
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 once they have finished talking, bring to the attention of the commissioner any facts which in your opinion they have not presented correctly.
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 he/she will notify you of his judgment in writing at a later stage).
No appeal may be filed against the judgment or order of the court. The court proceedings may be referred to the Supreme Court for review on three grounds only:
Absence of jurisdiction by the court
Interest in the cause, bias, malice or corruption on the part of the commissioner
Gross irregularity with regard to the proceedings.
If you lose. 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 the court.
If you win. The defendant must immediately pay you the amount of the judgment, if they have the money available. Give the apposing party a receipt for the amount immediately. If he cannot comply with the judgment, the court will investigate his financial position and ability to settle the judgment debt and make an appropriate order for payment.
In this case, if the debtor fails to comply, the matter is transferred to the magistrate’s court and the execution procedure, as prescribed by the Magistrate’s Courts Act, 1944 (Act 32 of 1944), is followed. It is advisable to make use of legal representation in the event of this procedure.
This article is based on information provided by the Department of Justice in Pretoria.
 

Copyright © Insurance Times and Investments® Vol:21.4 1st May, 2008
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