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Small claims court

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Should I use the small claims court?

One of the difficulties about approaching the Ombudsman lies in the unfortunate fact that the procedures and method of operation inevitably cause delay.

Many complaints, especially those which involve a broker relate to comparatively small amounts of money and simply in order to save time in these instances, and especially where there is a dispute between the client and the Broker, or the client and the Insurer, an approach to the Small Claims Court is often a swifter and less complicated alternative.

The Small Claims Court has the advantage that it does not cost the Plaintiff anything in legal costs other than the costs of the service of the Summons because legal representation on either side is not permitted. Small Claims Courts, whose jurisdiction usually coincides with that of the Magistrate's Court in their particular area, are now found in nearly all of the major centres in South Africa and, generally speaking, can deal with claims where the amount in dispute does not exceed R15 000.00.

The procedure is comparatively simple and the hearing date is usually within a month or so from the date of the issue of summons. In addition, the insurer or broker who is sued will not usually insist upon a hearing, once advised that the matter is in the Small Claims Court, unless it is convinced that it has valid grounds of defence to the claim.

The procedure is basically:-

  1. The despatch of a letter of demand addressed to the proposed defendant giving the defendant 14 days in which to make payment and threatening the issue of summons in the Small Claims Court if payment is not made. This letter of demand must either be delivered personally to the defendant or sent by registered post and proof of posting made available.
  2. On proof of the despatch in terms of the Rules of that letter of demand and the expiry of the 14 days, the Clerk of the Small Claims Court will arrange the issue of the summons and will assist the claimant in preparing the summons. The summons calls upon the defendant to attend the Small Claims Court on a particular day and at a stated time to answer the claim made.
  3. The summons must be served in a number of ways provided by the Rules of the Court by the Deputy Sheriff of the Magistrate's Court for the district.  The Deputy Sheriff's charges of service, which vary according to the distance he has to travel, are usually in the region of R100.00 are the only actual costs which a claimant will have to pay in regard to the matter. The defendant on receiving the summons may provide a written defence, if s/he wishes to do so, which should be sent to the Clerk of the Court and the claimant, but otherwise, s/he can simply turn up at the hearing and present their defence to the claim.
  4. The hearing takes place before a Commissioner of the Small Claims Court, who is usually a lawyer or a legal academic with at least seven years experience and the procedure before him is also simpler than in an ordinary Court of Law. The Commissioner will assist both parties to conduct their own cases insofar as s/he can, will try to do away with technical formalities and will usually deliver judgement, where this is possible, after hearing all the witnesses on each side and on the same day. The decision has the effect of a formal judgement and is as legally effective as a judgement given in the Magistrate's Court. The parties conduct their own case and lengthy cross-examinations and re-examinations of witnesses are avoided by the fact that the Commissioners ask all the questions, and the Small Claims Courts enjoy an excellent reputation for the administration of simple and swift justice.
  5. If therefore the Ombudsman suggests to you the use of the Small Claims Court as an alternative, give that suggestion careful consideration. Using the Small Claims Court in suitable cases may save a lot of debate and correspondence and bring about a swifter end to the dispute.
  6. If you do not know where the Small Claims Court in your area is, enquire at the local Magistrate's Court and you will be given the necessary information. Choose the Court which has jurisdiction over the person of the proposed defendant, that is where the proposed defendant lives or carries on business there, or where the actual cause of action arose, being the place where the contract or agreement was entered into within the Court's jurisdiction.