The role of the Small Claims Court

The Small Claims Court exists to make justice more accessible and less expensive. It also provides for an expedited process where the size of the claim does not warrant expensive and drawn out litigation.

Claims not amounting to more than R20 000.00 may be heard in the Small Claims Court. These claims may have variety of underlying causes such as the repayment of money lent, payment for goods sold and delivered, unpaid rental, enforcement of a claim stated in a legal document (such as a cheque, acknowledgement of debt or promissory note), credit agreements etc.

Though the Small Claims Court provides for a variety of matters that may be dealt with by the court, there are some matters that fall without the jurisdiction and as such may not be heard by the said court. Those matters are the following: Claims exceeding the monetary jurisdiction of R20 000.00, claims that relate to defamation, wrongful arrest and imprisonment or malicious prosecution, claims that challenge the State or local government, claims to dissolve a marriage, contesting a will or mental capacity.

If you wish to institute proceedings in the Small Claims Court, you would take the following steps:

Start by sending a letter of demand to the defendant. This letter should state the reason for the claim and the amount, together with a demand for payment and date for payment. It is suggested that the letter is sent via registered mail in order to prove that the letter was sent.

If you have not received payment by the due date as stated in your letter of demand, you will approach the clerk of the small claims court with proof that your letter was delivered together with any documentation that may prove your case. You will also provide the name, contact details and address for the defendant. The clerk will then assist you to issue a summons.

Once the summons is issued, you will be advised of a date on which your matter will be heard. A copy of the summons must be served (“delivered”) on the defendant personally. Thereafter, you must ensure that the original summons, copies of letter of demand and return (“proof”) of service of summons is filed with the clerk of the court before the hearing of your matter.

On the date of the hearing, you must attend the court in person with all relevant documents supporting your claim, together with your witnesses. The Small Claims Court does not allow legal representation in the court, but you may consult with an attorney beforehand to guide you on procedure.

The matter will be heard by a Commissioner (as opposed to a Magistrate or Judge in the higher courts) who will ask you to state your case and may ask you questions about the documents submitted. The Commissioner may grant you permission to ask the defendant a few questions. The defendant will also have an opportunity to state their case.

Once all relevant parties present has been heard, judgment will be passed. This may happen immediately or on a later date. The judgement is final and binding on both parties.

If a ruling has been made in your favour, the defendant will have a period of 10 days in which to make payment.
If this does not happen, you will have to report that fact to clerk of the Small Claims Court. The matter will then be transferred to the Magistrate’s Court whereafter the judgement will become a civil court decision and will be recorded by credit bureau, ultimately blacklisting the defendant.

Simultaneously, the clerk of the Magistrate’s Court will assist in issuing a warrant of execution which you will deliver to the sheriff. This document will enable the sheriff to attach and seize moveable property of the defendant in order to sell same to settle your claim. If there is no property to be attached, the court may order the defendant to attend a financial enquiry whereafter the defendant may be ordered to settle the debt by means of monthly instalments.

Throughout the process, you will appear in person. This means that you are not allowed to be represented by an attorney. You are however free to consult an attorney about your matter before you approach the court.