Find the right court:
Determine in which Smalls Claim Court you need to institute the action. You need to establish which Small Claims Court has jurisdiction to hear your dispute. You will usually institute your claim in the Court that has jurisdiction over the area wherein the person you wish to claim from (the defendant) lives or works. Look at the list of Small Claims Courts and compare the jurisdictional grounds set out in section 14 of the Small Claims Courts Act 61 of 1984 (“the Act”) to determine where you should institute your claim. You may also institute your claim in the court where the whole cause of action arose. An example would be where a motor accident, giving rise to a claim for damages, occurred. As this concept may become technical, it is safer to consult the Clerk of the Court, if you do not institute the action in the court where the defendant resides or works.
Find the clerk of the court:
Small Claims Courts are situated at a Magistrate’s Court. Within a Magistrate’s Court a clerk is appointed to handle the administrative affairs of the Small Claims Court. Go to the Magistrate’s Court and ask for the office of the clerk of the Small Claims Court (“the clerk”). The clerk has templates of documentation that you may require during the course of the proceedings and will assist you with advice on the procedures to be followed.
Draft a letter of demand:
The first document that you, as claimant (plaintiff), need to prepare, is a letter of demand (“LOD”). The Act requires that you always first deliver a LOD to the person /party from which you intend to claim payment or performance (defendant) before you may have summons issued.. You must afford the defendant 14 days from receipt of the LOD to pay or perform. If the defendant fails to satisfy your demand, you may have summons issued against him.
- You may prepare your own LOD or you may ask the clerk to assist you to complete a template LOD that the clerk has available at the office.
- The LOD needs to inform the defendant what you are claiming and why you are claiming it from him/her. For instance in the case of a claim based on an unpaid loan, you can phrase your LOD as follows:
Written demand in terms of section 29(1) of the Small Claims Court Act
Take note that I claim from you payment in the sum of R___, in respect of the unpaid loan. (You may insert further details of the loan or undertakings to repay here).
Take note further that unless the sum is paid within 14 days from receipt of this letter, summons will be issued against you for payment.
Be advised accordingly.
(Signed by yourself and followed by your details)”
Deliver the letter of demand:
- The LOD must be delivered in one of the following manners:
- Delivery by hand by yourself; and/or
- Delivery by the sheriff; and/or
- Delivery by registered post.
- If you deliver the LOD by hand, you should hand the original to the defendant and ask him/her to sign on your copy as an acknowledgement of receipt. If the defendant is absent and cannot personally take delivery, you may hand it to the receptionist at his/her work or if it is at his/her home then hand it to any person who appears to be older than 16 years and in charge of the premises. If somebody accepted service and signed on your copy, that signature will serve as proof of service. If nobody signs an acknowledgement of receipt, you are required to make an affidavit stating on which date and time you delivered the LOD, at which address you delivered it and who you handed it to. Take down the name of that person when you hand over the LOD.
- If the sheriff delivers the LOD, the sheriff will prepare a document giving details of what he did (a return of service). Ask the clerk of the court which sheriff you should ask to deliver the LOD and where to find the sheriff. The sheriff asks a prescribed service fee which you will need to pay in advance and which will not be repayable by the defendant. Service by the sheriff has many advantages, as the sheriff knows how to deal with the LOD and is an independent messenger of the court.
- If you deliver the LOD by registered mail, you must indicate your postal address on the back of the envelope so that the letter may be returned to you if undelivered. When posting the letter, you will will receive a tracking number whereby you can monitor the whereabouts of the LOD. If delivery took place and the defendant collected the letter from the post office, the day following collection will count as the first of the 14 days afforded to the defendant to satisfy your claim before you are entitled to issue a summons against him. Delivery by registered post is not recommended, due to the fact that defendants sometimes do not collect their registered post. Therefore rather use one of the other delivery methods to avoid uncertainty.
Have summons issued and served:
- If the defendant receives your LOD but fails to respond within 14 days of receipt, go to the clerk with a copy of the LOD and give the clerk proof that the LOD was delivered.
- The clerk will issue a summons that will inform the defendant of the date and time of the court hearing and will contain details of your claim.
- The summons must be served on the defendant either by yourself or by the sheriff. It is preferable, as stated above, to have the sheriff effect the service. Therefore, once the clerk handed the issued summons to you, take it immediately to the sheriff to ensure that it is served on the defendant timeously before the hearing date.
- You will have to pay the sheriff’s costs in advance. If successful in your claim, the defendant may be ordered to pay these costs back to you.
- The sheriff will file a return of service with the clerk and notify you of this. However, you should keep in contact with the sheriff to ascertain whether he managed to successfully serve the summons. You may need to provide the sheriff with alternative service addresses.
- If the sheriff was unable to serve the summons on the defendant (maybe the defendant has moved), the sheriff will file a return of non-service. It will then be necessary for you to try to track the defendant down and have a summons served at the new address of the defendant, as the court will not hear the matter without proof of service of the summons.
- Be careful not to miss your hearing date. If you are not at court when your matter is called, it will be removed from the roll. That means that you will have to start afresh and serve the summons again for a new date of hearing that will be provided to you by the clerk of the court, to have your case re-enrolled.