SET­TLING DEBTS IN SMALL CLAIMS COURT

Daily Dispatch - - Front Page - SONJA NEL Sonja Nel is an at­tor­ney with Drake Flem­mer & Orsmond At­tor­neys. She can be con­tacted on 043722-4210.

Step-by-step guide: how to go about col­lect­ing an over­due pay­ment

“I’m cur­rently self-em­ployed and do handy­man jobs to put bread on the ta­ble. I re­cently did some re­pair work for a client for just over R10,000, but the client has still not paid me and re­fuses to an­swer my calls. I can’t af­ford an at­tor­ney but have heard that I can go to the Small Claims Court my­self. How does the Small Claims Court work?”

Small Claims Courts are present in many cen­tres around the coun­try. Th­ese courts have been es­tab­lished to pro­vide a faster, sim­pler and more af­ford­able op­por­tu­nity to ob­tain jus­tice and of­fer a quick and easy way of re­solv­ing dis­putes that in­volve claims not ex­ceed­ing R15,000.

You do not need a lawyer to rep­re­sent you at a Small Claims Court as le­gal rep­re­sen­ta­tion is not al­lowed. This does not mean that you can­not ob­tain prior le­gal ad­vice from an at­tor­ney, but this will be at your own cost. There are also no ad­di­tional le­gal costs with of­fi­cers of the Small Claims Court as­sist­ing you free of charge.

Any­one, ex­cept ju­ris­tic per­sons such as a com­pany, close cor­po­ra­tion or as­so­ci­a­tion may in­sti­tute a claim at the Small Claims Court. A mi­nor must be as­sisted by a par­ent or le­gal guardian. You can in­sti­tute ac­tion for any claim that is less than R15,000, but can­not in­sti­tute a claim against the state or mu­nic­i­pal­ity. If your claim ex­ceeds R15,000 you can claim a lesser amount in or­der to pur­sue the claim in the Small Claims Court. In your case, your claim amount falls within the ju­ris­dic­tion of the Small Claims Court.

To in­sti­tute a claim you (“the claimant”) can ei­ther start by writ­ing a let­ter of de­mand to the per­son own­ing you money (“the de­fen­dant”), which should be de­liv­ered by hand or sent by reg­is­tered post, or you can ap­proach the clerk of a Small Claims Court near you for as­sis­tance in draft­ing a let­ter of de­mand to be de­liv­ered by you or sent by reg­is­tered post to the de­fen­dant. In the let­ter of de­mand the de­fen­dant should be given 14 days to pay the amount claimed. If the de­fen­dant does not pay the amount claimed within this time, you must then ap­proach the clerk of the court to is­sue a sum­mons to the de­fen­dant to ap­pear in the Small Claims Court at a set date and time. You will need to pro­vide the clerk with the nec­es­sary de­tails and doc­u­ments that ev­i­dence your claim.

You can then serve the sum­mons on the de­fen­dant ei­ther per­son­ally or through a sher­iff, al­though in the lat­ter in­stance you will have to pay the sher­iff’s costs. The de­fen­dant can upon re­ceipt of the sum­mons ei­ther pay the amount ow­ing or de­fend the claim and pro­vide the clerk of the court with a state­ment set­ting out his coun­ter­claim be­fore the date of the hear­ing.

On the set hear­ing date, the mat­ter will be heard by the Com­mis­sioner of the Small Claims Court that will pro­vide both par­ties an op­por­tu­nity to pro­vide their ver­sion of events in re­spect of the claim. The par­ties may also hand in doc­u­ments and call wit­nesses to prove or dis­prove the claim. Af­ter hear­ing both ver­sions, the Com­mis­sioner will make a judg­ment which must be com­plied with within 10 days.

If the claimant is suc­cess­ful with the claim and the de­fen­dant re­fuses to sat­isfy the judg­ment, a war­rant of ex­e­cu­tion will be is­sued by a clerk of the mag­is­trate court and the sher­iff, at the cost of the claimant, will serve such on the de­fen­dant and at­tach suf­fi­cient prop­erty to sat­isfy the claimant’s claim. If the claimant is un­suc­cess­ful, he or she can­not ap­peal the judg­ment but a re­view of the pro­ceed­ings is al­lowed.

As can be seen from the above, in­sti­tut­ing ac­tion in the Small Claims Court is a vi­able so­lu­tion for en­forc­ing your rights.

More in­for­ma­tion on Small Claims Courts can be found at www.jus­tice.gov.za/scc/scc.htm.

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