SETTLING DEBTS IN SMALL CLAIMS COURT

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.