Barnard Labuschagne Inc t/a Ettienne Barnard Attorneys

On the Small Claims Court

Ettienne Barnard Attorneys

is the trade name of Barnard Labuschagne Inc company reg no. 1999/015298/21

Conveyancing need not be a nightmare

We can assist with the transfer of property ownership whether you are buying or selling.

Do you need a commercial attorney

We can read or draft your contract and then help you manage compliance.

Modern approach to litigation

How we keep up to date with trial developments.

Damages for Negligence

Delictual claims often depend on some negligence by others.Read about it here.

Consultations need not always be a costly affair

But let these pages help you prepare.

Consultations need not always be a costly affair

But let these pages help you prepare.

Matrimonial Dispute?

What are your rights and what is important in dealing with a marriage dispute?

Delictual Claims

Let us advise you on how to choose between claiming, defending or settling.

Risk Analysis and Avoidance

Free up your time to focus on your business expertise. We can assist to take care of the legal stuff.

Community involvement

We actively participate in Legal Profession Development for the benefit of the community.

A little more about us

Read about our 21 years in law.

themed object
LITIGATORS, NEGOTIATORS, CONVEYANCERS and ADMINISTRATORS OF ESTATES
get in touch

Small Claims Court in South Africa

 

office (021) 852-7780
fax (021) 852-4194

NB Note that the Small Claims Court Monetary Jurisdiction has increased to R15'000 with effect from 1 April 2014

You can Download an App with the Law Society of South Africa (LSSA) pamphlet on Small Claims Court made Easy by clicking on the relevant icon below:

    Get the Android App on the Google Play Store

 

        Get it on the App Store

 

For windows & PCs please click on the icon below:

Small Claims Cour Icon

Please mail your specific Small Claims Court questions to us at ettienne@barnards.co.za

The Defendant in the Small Claims Court Record Keeping during Court Sessions

Introduction

Welcome to our public assistant pages for Small Claims Court litigants. We trust that the content will assist you to appear and present your case in court.

Please note that the information provided here is intended to assist members of the public in lodging a claim in the Small Claims court. It is not intended to be legal advice and, although we believe it is accurate, the authors accept no liability for any damages caused should you rely on the content of these pages or any of our blogs. If you do not accept this, please do not make use of any of the information contained on the site.

Laws constantly change and may have changed before or since publishing this page. It is important that you obtain professional legal advice as to the current legal position. The Clerk of your local Small Claims Court may be able to refer you to an official legal assistant or legal practitioners that practice in your area.

The approach will be to present a Small Claims Court dispute as an example and use that to illustrate the process from start to end. To make a case, you need to start at the Clerk of the Small Claims Court.

Preparing to see the Clerk of the Court

Get the Facts Straight

A good idea is to get your thoughts straight before going to court. This can be done by writing down what has happened that gave rise to your claim. What you write down will not be evidence and you will still need to testify or call witnesses to prove your case in court. Writing the facts down beforehand however prepares you to think logically about what is to happen. It is important to use your own words. It is your story. Try to write chronologically (as the events unfolded) and if possible, record the dates of when what happened.

The File Checklist

Your story needs to contain enough detail to disclose a cause of action. The commissioner who hears the trial will be looking out for the elements of the cause of action. A cause of action is the legal phrase for the requirements needed to get a court order in your favour. The following checklist that should assist throughout the preparation and trial. Its purpose is to list the aspects that must be dealt with when you eventually get to court.

First read the checklist content that follows and then we can deal with the items individually.

1 Letter of Demand

2 The summons

3 Service of Summons

4 The Defendant

5 Jurisdiction

6 Type of Claim

7 Amount

8 Costs

1 The Letter of Demand

In terms of the Small Claims Court Act, you must have sent the defendant (against whom you are claiming) a letter of demand informing of the fact that you are claiming, the amount of the claim and advising that it should be paid within a certain time, failing which you will sue. Ask the Clerk of your local Small Claims Court for the Court's standard letter of demand. The letter is usually in a pre-printed form and all you need to do is fill in the blank spaces. The Clerk of the Court will help you free of charge or may refer you to a legal assistant. Legal assistants are legal practitioners that provide aid to Small Claims Court litigants free of charge.

2 The Summons

This is the next document after the Letter of Demand that must be completed in order to bring the matter properly before court. It sets out the story and explains why you are claiming from the Defendant. It should also explain the amount of your claim. The Clerk of the Court or legal assistant will also assist with the completion of this form and your statement of claim. The date when the matter will be heard in court is set out in the summons and the defendant is warned to be at court.

3 Service of Summons

Before the court may hear your matter, it must be sure that the defendant has received notice of the claim and that the matter was to be heard on the specific date. The Sheriff of the Court usually serves a summons and provides you with a Return of Service. It is done at a nominal fee which is paid directly to the Seriff. A Return of service is a document in which the Sheriff certifies that the summons has been properly delivered to the Defendant.

It is important to read the Sheriff's Return. If the Sheriff could not serve the summons, it would be a Return of Non-Service. You would have to enquire as to the reason. The most likely reason is that the Defendant could not be found at the address of the Defendant as indicated in the summons. If this is the case, you would have to trace the Defendant. There are tracers that trace defendants on a No Trace No Fee basis. This means that you only pay their fee if the trace is successful. You need to negotiate the amount of the fee and whether it will be on a No Trace No Fee basis beforehand. The Court will not hear your matter if the Defendant has not been served.

4 The Defendant

You must have described the Defendant giving as much details of the defendant's name and address as is possible.

The full names and surname assists the Sheriff in identifying the correct defendant. (Remember there may be more than one Defendant with the similar names at the same address)

The address could assist the court in determining whether it has jurisdiction (authority to make an order) over the Defendant.

5 Jurisdiction

A court must have authority to hear the matter. This authority is referred to as jurisdiction. It comprises of 2 elements.

The first refers to the money amount. Currently the court may hear matters where amounts up to R12000 (twelve thousand rand) are claimed. If one's claim is more than R12000, you may still claim in the Small Claims Court, but you will have to abandon so much of the amount as exceeds R12000 and you may then never again claim the amount you have abandoned.

The second element refers to the person or where the cause of action arose. The most common ground for jurisdiction is that the defendant resides or works in the area of the court or that the whole cause of action arose within the area of the court. The whole cause of action in the case of a contract will be all the facts relating to where that contract took place. In the case of damages caused, it will be where the damage was caused.

To see where your nearest court is, click here

The following may not be brought before the Small Claims Court:

  • Claims for more than R15'000
  • Claims on behalf of someone else
  • Claims obtained by cession(cession is the transfer of a right)
  • Claims against the State
  • Claims challenging the validity of legislation (eg. acts of parliament)
  • Claims for damages due to
    • Defamation
    • malicious prosecution or wrongful imprisonment
    • seduction
    • breach of promise to marry
  • Divorce or dissolution of marriage
  • Claims involving the interpretation and validity of wills
  • Claims regarding status (mental capacity)
  • Claims for perpetual silence (that is to order someone who threatens a claim, to institute it immediately or else to refrain from claiming)
  • Claims for specific carrying out of the terms of a contract without an alternative of damages
  • Unfair Labour dispute claims or labour relation disputes other than the mere enforcement of a contractual right such as a claim for payment of a salary in terms of the contract.
  • A claim lodged by a company or other corporate body unless it is a counter claim (That is a claim by a company or corporate that has been sued and raises the claim against the Plaintiff that sued it as part of its defence or answer to the plaintiff's claim)

6 Type of Claim

The law requires that certain facts are proved before relief is granted. The type of claim to reach the Small Claims Court is most likely to be one based on contract or one in which damages is claimed.

For a contractual claim, you need to prove that the parties agreed to the terms of the contract you rely on, that the defendant breached the contract and that you are entitled to payment of an amount in terms of the contract or damages due to the breach of the contract.

For a damages claim based on injury or damages to property, you need to prove that the defendant (or someone on behalf of the Defendant or in the employ of the defendant while carrying out their employment duties) caused the damage by wrongfull conduct in a negligent or intentional manner.

7 The amount

Once the facts required to prove your type of claim have been proven, you need to prove the amount of the claim. It is very important not to assume that the amount you claim will be accepted without challenge. The court should probably assist with this but you should not rely on such assistance when preparing. Prepare as though you will have no help.

If the claim is one for an amount due to you in terms of a contract, you must be able to prove that the contract refers to that amount. If it is an amount arrived at from a calculation based on the contract, you need to prove that the calculation is valid, applicable and accurate.

Where the claim is for damages, you must prove what damages you have suffered. This is proved by providing evidence to the court that the amount you claim is reasonable and that it relates accurately to the loss you have suffered. If an item (such as a motor vehicle) was damaged you must have quotations. The way to prove that you are claiming a reasonable amount is to go with the least expensive quotation. If the Defendant contests any amount on the quotation, you still have to prove that the amount is reasonable. The best way to do this is to call an expert witness. Who the best expert is will depend on the type of damages claim. A motor vehicle damages, for example, can be proved by calling a panel beater (or assurance assessor) as an expert. The expert must have experience in assessing motor vehicles and damages caused to them by collision. The expert must also have inspected the plaintiff's vehicle and be able to testify as to its damages, the amount to restore the vehicle and the market value of the vehicle immediately before and the wreck after the collision took place.

The court will protect the transgressor (who caused your damage) by awarding you the smallest amount possible. This is because of the law requires that the claimant mitigates (limits) his or her damages. For this reason, where the repairs of a motor vehicle exceeds its market value immediately before the collision, the plaintiff will only be etitled to the difference between the pre-collision and post-collision value. So if the vehicle was worth R20000 before the collision, the repair costs are R20000 and the wreck after the collision is worth R5000, the court will only grant R15000 damages. (That is the lower amount of the repair costs and the loss in value of the vehicle due to the collision.)

8 Costs

The actual court appearance does not cost the litigant anything. During the process however, the litigant will incur expenses such as fuel for travelling, the account of the tracing agent who traced the defendant, the postage costs of the registered letter of demand and the amount charged by the sheriff to serve the summons. The costs the court awards are limited to those validly charged by the Sheriff. The other amounts one can try to recover by including them as part of the damages claim. However they must be limited to the bare minimum, properly itemised (listed seperately) and proved.

General Remarks

The process is easier than it might seem but you must prepare and have all your documents, evidence and witnesses ready to do justice to your claim.

Some common mistakes are where the wrong party comes to court. The owner of the damaged motor vehicle should come to court him or herself. You are not allowed to be represented by someone else in court as a plaintiff. You must present your own claim. (This does not prevent you from obtaining legal advice before instituting the claim or before appearing in court.)

You also need to make sure that the correct defendant is sued. If a company or other entity is liable, you will not be succesful against its members or directors in their personal capacity (unless they are personally liable for some other reason.) If you are unsure whether a person or his company is liable, you may sue bothe in the same matter. The one is then the First Defendant and the other the Second Defendant.

logo

Home | Commissioner | Plaintiff | Defendant | Court Record | Other Information Links
| Clerk of the Court | Security | Court Orderly
Copyright © 2011 Barnard Labuschagne t/a Ettienne Barnard Attorneys. All Rights Reserved.

You can view our Matrimonial Law pages by clicking  here

slide up button