By Ngwako Raboshakga and Gugu Magodla from ENSafrica
Disputes between people are a daily occurrence.
For example, what do you do when you have paid for furniture which was never delivered to you, or you have paid a deposit to someone to renovate your house but the work was not done as agreed, or your neighbour borrowed money from you and did not pay you back?
These are the type of matters which may be taken to the Small Claims Court (SCC). The SCC deals with claims of any amount less than R15 000. It aims to make justice cheap and accessible to those who cannot afford to pay lawyers to claim relatively small amounts of money. The applicant is allowed to reduce their claim to R15 000, but this means they can no longer claim the rest.
Certain disputes cannot be resolved in the SCC, including divorce, validity or interpretation of a will, defamation, applications for an interdict or specific performances (such as stopping an eviction) etc.
Companies, close corporations, NPOs, societies and churches cannot institute a claim in the SCC, only natural persons may do so. However, a claim may be made against those organisations in the SCC. The government cannot be taken to the SCC.
When a person wants to make a claim in the SCC, they must first determine which SCC to go to. Generally, the applicant must approach the SCC in the area where the person being sued (the defendant) lives, works or does business, or the area where the claim arose.
The next step is to write a letter of demand, which the SCC will help you to do. The letter must be delivered to the defendant. If necessary, you may ask the police to accompany you to deliver the letter. There must be some kind of proof that the letter of demand was given to the defendant.
If the defendant does not pay the amount claimed within 14 days, the applicant must go back to the SCC to apply for a summons. A summons is basically a document that says that both the applicant and defendant must come to court on a specific date.
The summons must generally be delivered to the defendant by the sheriff of the court, who will charge the applicant a small fee. The summons must always be delivered to the defendant 10 days before the court hearing.
Once delivered, the applicant must collect from the sheriff a document stating that the summons was delivered to the defendant. The next step is for both the applicant and defendant to appear in court for the hearing.
The commissioner (who is an experienced lawyer) will listen to both sides and examine the evidence presented or given by witnesses before reaching a fair and just decision (called a judgment).
People cannot be represented by lawyers in court. However, they are free to consult their lawyers before going into court. There will be an interpreter for those people who cannot speak or understand English sufficiently.
The commissioner will decide whether the case is won by the applicant or defendant. If it is won by the applicant, the amount awarded must be paid to the applicant within 10 days of the commissioner’s decision.
However, the commissioner can also decide how and when the amount should be paid (for example, the commissioner can say the defendant must pay in monthly instalments).
If the defendant does not pay within 10 days or as the commissioner decided, the applicant can go back to the SCC to apply for a writ of execution. A writ of execution allows for some of the defendant’s property to be sold in order for the applicant to get their money.
The decision of the commissioner is final and cannot be appealed. However, it can be reviewed or rescinded under some circumstances, such as where it can be proven that the commissioner was biased or acted corruptly or where the wrong court was used or where the summons was obtained fraudulently or where the defendant could not come to court because they were in hospital.
The Alexandra SCC is situated at the Alexandra Magistrates’ Court (223, 2nd Street, Wynberg) and can be contacted on 011 786 3600/4905/3446. For legal advice, you may contact ENSafrica at 011 555 0980 or visit their office at Sankopano Centre.
