Using the small claims court to get paid

check list to do organisation planning

A few pointers for those seeking to go the route of the small claims court. For further information see The Small Claims Court Act 61 of 1984.

General information:

•    Small Claims Court:  If you are a company or cc you may not institute a claim in the small claims court. But you can if you are ‘trading as’ or a sole proprietor not a company or cc (apparently you can ‘cede’ the debt to an individual to get around this).

•    The maximum amount you can claim is R12,00 (National Department of Justice 2010).

•    In order to claim for a debt of, for example, R15,000 you can abandon R3,000 and still claim in the small claims court.

•    You are still under oath in a small claims court but you may not have a lawyer with you.

•    You may make the claim against anyone except the state. This includes companies, corporations, municipalities etc.

•    You may NOT be represented by an attorney or advocate in court.

•    BUT legal assistants and clerks of the small claims court will assist you free of charge.

•    No claims against your spouse, wills, property, willful acts, defamation etc can be taken to the small claims court.

•    If the amount owed is R24,000 you may not make two claims of R12,000!

How to go about it:

•    Contact the opposing party and ask for settlement.

•    If no payment, address a written demand (amount and particulars). Give them 14 days from the date of receipt of your written demand.

•    You may go to the court and ask them to write the demand for you (for a fee) or do it yourself.

•    Deliver demand by hand or by registered post – make sure you have proof it was delivered.

•    If there is no response after 14 days, report to the clerk of the court with proof that the demand was delivered to the opposing party.

•    Often just the heading of the letter: 'Letter of Demand' is enough to elicit payment.

Take to the clerk of the court:

•    Any contract, proof etc on which the claim is based.

•    Address and telephone of opposing party.

Duties of the clerk of the court:

•    The clerk of the court and the legal assistant will examine your documents and help you draw up a simple summons.

•    The clerk will give you a date and time of the hearing.

•    The clerk will issue the summons and hand it to you.

•    You may either deliver the summons yourself or ask the Sheriff of the Court to deliver it (for a fee).

What to do with the summons:

•    Try to serve it on the opposing party.

•    Give it to the sheriff to deliver (with a fee).

•    Get his written proof before the hearing to say he has delivered it.

•    Keep all documentation.

•    Inform any witnesses about the date and time.

What the opposing party might do:

•    Comply.

•    Send reasons why they aren’t paying to the clerk of the court and give you a copy.

•    Submit a counterclaim and then they need to go through the same procedures you did.

•    If they do pay you before the court date – you need to issue a receipt and let the clerk of the court know so that the case is canceled.

If not:

•    You need to appear in court in person.

•    Make sure you have all the documents (including proof that the summons was delivered) and ensure that any witnesses are present.

The hearing:

•    Simple and informal – no advocate or lawyer.

•    State your case – concisely – they do not like complicated stories!

•    No cross-examination is permitted but you can ask questions

•    When the opposing party has stated their case, you can, however, dispute facts

 The result:

•    The commissioner will listen to all parties and make judgment – either immediately or at a later stage in writing.

•    There is no appeal against the judgment but it can be referred to the Supreme Court in exceptional cases.

•    Following judgment: you will either get paid immediately or arrange for payment at a future date.

•    If the payment is not made the matter will be referred to the magistrates court and an execution procedure is put in place as prescribed by the magistrate.

You will be able to get information from your local magistrate’s court where the small claims court is situated.

Go back up to Legal and tax advice

SAFREA is a Registered Non-Profit Organisation (NPO 114-297).
PBO 930049795