Debt recovery through Small Claims Court still challenge

MBABANE – Getting assistance to recover debts of small amounts of money remains a pipe dream for some people, despite the establishment of the Small Claims Court.

This is because, notwithstanding that a plaintiff does not require the services of an attorney to approach the Small Claims Court, which may be costly, they are still expected to pay for certain services.

In many instances, some plaintiffs, who may be owed any amount between E1 and E20 000, end up abandoning their cases at the Small Claims Court, because they cannot afford to pay for the auxiliary costs. As a result, this defeats the purpose for which the Small Claims Court was established.

Responsibilities

The financial costs linked with ensuring that the Small Claims Court carries out some of its responsibilities are among the challenges that were listed as hindering certain operations of the court. The Small Claims Court was launched in 2021 in the country.

Inasmuch as the court has been able to solve a majority of the cases that were brought before it, it does not mean that all the plaintiffs received the monies they were owed.

This is because the court only issues garnishee orders that are executed outside their jurisdiction. Some of the completed cases include orders, where some of the people who owed the plaintiff never had their belongings attached. Therefore, the complainants are still owed their monies.

The Small Claims Court is a service which provides an inexpensive way for individuals, consumers and businesses to resolve disputes without employing

a solicitor. In Eswatini, the Smalls Claims Court is established through the Small Claims Act of 2021. It has been established that the Small Claims Court, besides providing the much-needed services in solving civil claims involving small amounts of money, some of the complainants end up not getting their money back from people who owe them.

This is because in most cases, some of the complainants have limited financial resources, while some of the defendants find ways to outsmart them when they approach the Small Claims Court for assistance. In some cases, according to the complainants, other debtors simply do not honour the summons issued by

the court. One of the interviewed complainants stated that he reported his case in May 2022. He said he was owed E2 000. He also stated that he first paid for the letter of demand to be written by the court clerk, which cost him E20. He said he also paid E115 for the messenger to serve the defendant, who was staying in the capital city.

“During the court day, I spent the whole day in court and the person did not arrive. Instead, I was told that I needed to pay another E120 for a deputy sheriff to attach some of his belongings,” said the complainant. He revealed that he spent more money trying to follow up with the court officials, if they were able to take the next step and eventually gave up, because he felt that he was bothering the court officials. Another complainant said she had to abandon her case at the Smalls Claims Court after learning that some people easily hid from the court messengers when they served the summons.

Adding, the complainant said even after she told the officers that the defendant was around and gave their exact location, they failed to bring her to court. She said she had paid E120 for the summons to be served. These were among others who claimed that they had abandoned their cases after they discovered that the defendants deliberately did not show up in court. She said the defendants were aware that the court would not issue a warrant for their arrest, therefore, they (plaintiffs) did not get assistance to recover their owed monies.

It was further revealed that among the issues faced by the Small Claims Court was inadequate staff.

Resource

According to some Small Claims Court staff members, who spoke on condition of anonymity, the shortage of the human resource, support staff in particular, made it hard for the court to follow up on cases.

Further, they explained that they did not have adequate working tools, such as stationery and means of communication. As a result, some of the officers end up using their own money to buy airtime and some of the stationery that is used at the court.

It was revealed that there was a time when the court could not issue summons, because they did not have stationery.

The challenges faced by the Small Claims Court were also highlighted by senators when the Ministry of Justice and Constitutional Affairs was in Parliament for the annual performance report for the 2023/2024 period and budget debate for the 2024/2025 financial year.

Senator Chief Prince Mphatfwa asked the Minister of Justice and Constitutional Affairs, Prince Simelane, how effective was the court and if it had powers to issue orders and if those orders were complied with. The senator wondered if the court could order the arrest of those who did not comply with its orders.

“How do they carry out their duties? Is the Smalls Claims Court serving the nation? Does it have powers to issue orders? It doesn’t show what happens to people who do not respect orders of the court,” he asked.

Senator Isaac Magagula, who is also the Chairperson of the Senate Portfolio Committee on Justice and Constitutional Affairs, asked the minister if the officers were adequately trained since this is a civil crimes court.

“The officers require the special skills that should be acquired through training,” he said. The senators noted that the ministry had been complaining about staff shortages and other officials that had expert knowledge in their various commissions to run those offices.

They wondered why the ministry set up a commission before finding the people with the necessary skill set to run it first. They further questioned why were the officers not trained first before assuming their substantive positions.

Written responses that were presented by the ministry stated that the ministry ensured due diligence when recruiting officers to execute its mandate.

“As far as we know, all officers in the ministry are qualified for the work they do. They have the requisite skills,” the minister said. He added that in the financial year 2023/24, two trainings were conducted to capacitate the Small Claims Court commissioners on the legislation and other needed skills.

“Such trainings will be continued in the coming financial year,” he said.