This article aims to provide litigants in the Small Claims Court (“SCC”) with practical advice as to how to make the most out of their case at court.
It is written from the perspective of a commissioner who has presided in the SCC for several years, and should be read in conjunction with the FAQ’s in relation to the SCC which also appear on this website.
The proof of claims in the Small Claims Court is regulated by the Small Claims Court Act, 6 of 1984; procedural matters relating to the Small Claims Court are governed by the Rules Regulating Matters In Respect Of Small Claims Courts.
Both are available on this website, or may be found online. They are relatively easy to read, and if you have any particular question when contemplating bringing or defending a claim in the SCC, you may find the answer there.
Commencing with a claim
The commencement of a claim in the SCC starts with a 14 day letter of demand which you may send by registered mail yourself, or with the assistance of the Clerk of the Small Claims Court (“the Clerk”) whom you will find at your nearest Magistrate’s Court.
When a Commissioner eventually comes to hear your claim, he/she will have received the court file relating to your matter in advance, in order to prepare for the hearing. In trying to understand your case the Commissioner will begin by looking at the letter of demand. It should therefore be accurate and contain sufficient detail of the basis for the claim, and how the amount claimed is made up.
If you are being assisted by the Clerk make sure the Clerk puts adequate detail in the demand.
Once the demand has been delivered and 14 days have elapsed without response, the Clerk will issue a summons and will advise you how to have it served through the Sheriff on the defendant. You can serve the summons yourself, but must request the clerk to explain the procedure, contained in Rule 12 of the SCC rules carefully to you.
You must liaise with the Sheriff to ensure he get the summons served on time for the date appointed for the hearing on the summons.
The defendant may be someone trying to avoid service; in this event you must give every assistance to the Sheriff as to where the defendant might be found, and at what hours. You can also volunteer to accompany the Sheriff in order to point the Defendant out.
The Sheriff’s return of service, proving service of the summons on the defendant, must be placed in the file by the Clerk. It would not do you any harm to call the Clerk in advance of the case to make sure the return of service is in the file.
A Commissioner will not hear a case unless he is satisfied that the defendant is aware of the date of the hearing.
With the assistance of the Clerk make sure that by the time that the file is made up for the court date all the documentary evidence upon which you will rely at the hearing is in the file. This will also help the Commissioner to prepare and be persuaded of the merit of your case.
Documentary evidence may include: contracts (a lease agreement for example); letters; emails; sms’s (a note on these: if you can print them out, do, otherwise bring your cellphone to court); photographs; reports; and quotations.
You may even have Go-Pro or video footage to assist in the proof of your case. In this event, ask the Clerk to make a note in the file, and make sure you have the means of displaying this material at court, for example by showing it on your phone or your iPad.
You may have actual items of evidence which support your case. Bring it to court so that the Commissioner may see it with his/her own eyes: if your trousers got burned at the drycleaner and you are making a claim for their repair or replacement, bring them along.
If you want to make life easy for the Commissioner try to arrange your documents in date order; generally Commissioners like to read documents in a chronological sequence, with the oldest on the top and the most recent at the bottom. In that way the narrative created by the documents reads like a book and your case will be easier to follow.
Preparing to defend a claim
If you receive a letter of demand, or a summons, and you have a defence, the best thing to do is to set your defence out in a letter or in a “plea” – a document in which you set out in logical sequence, why you deny that the plaintiff’s claim has merit, or why you say that the claim is overstated.
The SCC Act does not require a plea to be filed in response to a claim, but it is a very useful tool for a Commissioner in preparing to hear a case.
If you have a defence, and you have committed it to writing in the form of a letter or a plea, you should make sure that the Clerk has put it in the court file in advance of the hearing.
In preparing, then, the Commissioner will read both sides of the story, and will have identified the issues in dispute in advance of the hearing. That will make the inquiry more focused, and probably quicker. You also have less likelihood of some aspect of your plea being overlooked.
It often emerges at a hearing a claim that a defendant has a counter-claim.
A typical example would be a tenant claiming a deposit back at the end of a lease, and a landlord might say that the tenant has caused damages to the premises in excess of the amount of the deposit.
Another example might be a vehicle accident in which the defendant asserts that the plaintiff was negligent in causing damage to the defendant’s car (get the facts from Scrap Car Pickup for Cash Ottawa) and therefore the plaintiff is indebted to the defendant.
The SCC cannot entertain counter-claims that you mention for the first time at the hearing. If you have a counter-claim then you should file a plea in response to the claim, and at the same time a written counter-claim in which you set out the basis for your claim against the plaintiff. Both claims will then be heard together at court.
As a defendant making a counter-claim, you need also to ensure that the documents assisting in the proof of your counter-claim are in the court file.
Appearing in court
Make sure you are on time. The Clerk should be at court at the appointed hour and you should report to the Clerk so that she knows that you are there.
The Clerk will hand the roll to the Commissioner on duty so that the Commissioner knows which parties are at court, as plaintiffs and defendants.
If you are late, as a plaintiff you face the prospect of your claim being struck from the roll, or if the defendant is present it is possible that the claim is heard in your absence. In this event the Commissioner may uphold the defence, or grant absolution from the instance (certify that you have been unable to prove your claim, in which case you will have to start the whole process afresh).
If you are late as a defendant, the court may grant default judgment against you (judgment granted in your absence). If this happens, and there is good reason why you were not present, and you have the prospect of a good defence, you may, with the assistance of the Clerk apply to rescind (set aside) the judgment that has been given against you by default.
The particular powers of the SCC
Unlike other courts in our country the SCC is a court of inquiry. The inquiry is conducted by the Commissioner.
Also unlike other courts, the formal rules of evidence do not apply in the SCC. For example, Commissioners are empowered to accept hearsay evidence (evidence that is reliant on the truthfulness of someone who is not present at court to give evidence).
Examples of hearsay evidence might be: “my mother (who is not at court) says that the defendant did not have his indicator on”; or “I am not paying for this security installation because my electrician (not present) says it is not electrically compliant”.
Although a SCC may accept evidence of this nature, it is not very persuasive, or necessarily reliable.
It is far better to bring that witness to court if you can. At the very least, using the examples given above, try to have some supporting evidence in this connection at court: an affidavit by your mother who is too ill to be present, or a written report from the electrician if he is not prepared to be at court without being paid.
Presenting your claim or defence
At the commencement of proceedings, the Commissioner will call the name of case and if it is your case you will come to the front of the court for your case to be heard.
Hopefully, the Commissioner will have introduced him- or herself before proceedings commence. Generally a Commissioner will be a relatively experienced attorney, or advocate, in active practice. Commissioners are not paid for what they do and render a service to the State for the advancement of justice. They should be treated with respect, and addressed as “Commissioner”.
The inquiry will commence with the evidence of the plaintiff and the plaintiff’s witnesses, thereafter the defendant and witnesses; it often happens that the plaintiff or a witness is recalled to clarify something that arises in the defendant’s evidence.
Every party and witness will be sworn in before giving evidence. You have the option of making an oath to God, or a secular affirmation.
You have the right to give evidence in any official language of the country, although usually proceedings will be in English or Afrikaans. If you need to give evidence in any other official language, particularly if a Commissioner may not understand that language, make sure with the Clerk that an interpreter will be present at court on the day. Often Clerks assist with interpreting in indigenous languages.
If you need to give evidence in another language, for example, French for those from Francophone African countries, you need to arrange that a competent, interpreter is at court on the day, who is not affiliated to any of the litigants in question. The Clerk is not able to assist in arranging for interpreters except for indigenous languages.
When hearing cases, a Commissioner only sees a group of unknown people in the public gallery at the back of the court. It is usually not apparent to the Commissioner who are litigants, supporters, family, or witnesses.
As a plaintiff, or a defendant, at the beginning of your evidence, you should tell the Commissioner that you have witnesses present and in a few sentences summarise what their evidence will be.
When one party or its witnesses are giving evidence, the other party may not interject or interrupt. You will get your opportunity to state your case; for the orderliness of proceedings, and out of respect for the legal process, you must wait your turn.
If you interrupt, or are contemptuous toward the court, or the Commissioner, the Commissioner has the power to hold you in contempt of court, and to fine you, or order that you be taken to jail.
You will quickly know whether the Commissioner is adequately prepared for the case. If it appears he is not, when giving evidence, be patient and take the Commissioner in a logical sequence through the relevant events, referring, where necessary, to the documentary or other evidence that supports your case.
Because the court is one of inquiry, you do not have the power to cross-examine the other party or her witnesses. If you want to ask a question of the party or witness, request the Commissioner to be allowed to do so, or suggest the line of inquiry to the Commissioner.
Two prevalent types of case
Motor vehicle accident claims
Motor vehicle accident claims usually entail the proof of two elements: that the other driver was at fault; and that the damages claimed as a result of damage to your vehicle are fair and reasonable.
The first element can be very difficult for Commissioners to adjudicate because the two opposing parties usually have differing versions of events, each placing blame at the door of the other.
For this reason a Commissioner will need all the forensic assistance she can get: obviously the best is an independent witness, or a witness travelling in your car. If you can secure their presence at court that is first prize.
In all cases bring along a sketch plan of the accident (i.e. the scene of the accident viewed from above, with the roads, and vehicles drawn on it, and all other relevant features such as trees, traffic islands and the like).
If it is going to be your word against that of the other driver, try and bring other materials to be of assistance to the court: photographs of the scene; photographs of skid marks, or debris on the road; photographs depicting where the vehicle was damaged; the accident report to the police made by both drivers; and if it exists and you can get it, the report made by the other driver to his insurance company.
All of these items will assist a Commissioner in using inference and deduction to try and determine who was at fault – particularly in the event that there were no witnesses.
When your damages were caused by a taxi, you have a claim against the negligent driver, and also against the owner of the taxi, if the taxi driver was driving in the course and scope of the owner’s business at the time. It is more likely that you will make a recovery against the owner, so try and find out (you can conduct a Natis search with the registration number of the taxi) who the owner of the taxi was at the time of the accident.
The SCC is empowered to order an apportionment of damages according to the degree of negligence of each driver; this means that if the Commissioner decides that a plaintiff was 40% to blame, and the defendant 60%, then the plaintiff would only be awarded 60% of the plaintiff’s proven damages. If the defendant proves a counter-claim, then the defendant would only be entitled to 40% of the proven damages.
As to whether the damages claimed are reasonable, a Commissioner will not require the panel-beater to be present at court, and will normally accept the evidence of a written quote from a panelbeater instead. To ensure that the amount claimed is fair and reasonable a practice has developed in the SCC to require a claimant to bring along two, and if possible, three, repair quotes.
If a defendant disputes that the damages claimed are fair and reasonable, he would be at liberty to check the plaintiff’s quotes, if he had them in advance, with his own choice of panel-beaters, and could present their competing quotes at court.
Claims for the return of rental deposit
The fact that a tenant is usually required to pay a deposit to the landlord (as opposed to, say, a neutral stakeholder) before being permitted to lease premises from a landlord, can create the potential for abuse. Unscrupulous landlords, who have the deposit in their possession, may refuse to return a part, or the whole, of the deposit, citing damage by the tenant to the premises.
Both landlords and tenants would do well to study the Rental Housing Act, 50 of 1999 (particularly section 5) which is available online. In relatively understandable terms, it governs relations between landlords and tenants, including the issue of the deposit.
It provides that a deposit must be invested by or on behalf of a landlord, in an interest bearing account for the duration of the lease agreement. It also provides for a joint ingoing and outgoing inspection of the premises at the commencement and expiry of the lease agreement. At the ingoing inspection a list should be made of all items warranting repair by the landlord. At the outgoing inspection, with the ingoing inspection document at hand, a list should be made of all damages to the premises caused by the tenant during the duration of the lease agreement.
A rule of common law is that a tenant will not be liable for fair wear and tear (damage and depreciation due to ordinary use). Examples of this would be walls getting dirty, wear to the furniture, and the enamel on the bathtub becoming mildly scratched.
As an outgoing tenant it is probably a good idea to get the premises professionally cleaned, and to retain a copy of the relevant invoice. In that way the landlord would not be able claim an exaggerated amount to clean the premises and deduct this from your deposit.
When presenting a claim for the return of a deposit, it is a good idea for tenants to have before and after photographs, if they are available, and, of course, the ingoing and outgoing inspection reports.
Landlords claiming damages should do likewise, and should also have two, preferably three, repair quotations.
Tenants should insist on an accounting for the interest which has accrued on their deposits, which must be returned, or brought into account when calculating the net amount that should be refunded to the tenant after the deduction of the reasonable cost of repair.
At the end of the case a Commissioner will usually give her judgment, or may, exceptionally, reserve judgment to conduct further research. In that case a written judgment will usually be handed down through the office of the Clerk.
Ideally a Commissioner should articulate her reasons for the judgment so that both parties can understand.
There are a variety of competent judgments: a judgment for a whole or part of the sum claimed; a dismissal of the claim if the defence is upheld; or an order of absolution from the instance (described above).
If you are the disappointed litigant, do not argue or debate the judgment with the Commissioner. That may be held to be in contempt of court; it would not be respectful of the court, or toward a Commissioner who has done his or her best to fairly adjudicate the dispute.
A successful litigant will usually be granted the whole or a portion of the capital claim, interest at 9% p.a on the outstanding debt from the date of demand, and court costs. Court costs are usually the costs of registered postage in the process, and the Sheriff’s costs for delivering the summons.
It often happens that a defendant “defends” a claim, but after some inquiry it emerges that the claim is in truth not disputed; all that the defendant needs is time to pay.
Sometimes, a defendant defends a case unsuccessfully, and then needs time to pay off the judgment debt.
In the first example, a defendant should inform the Commissioner at the earliest opportunity that the claim is not defended and that what is sought is time to pay.
In the second example, as soon as judgment is given, an unsuccessful defendant should advise the Commissioner that time is needed to settle the judgment debt.
In both these events a Commissioner has the power to conduct a financial inquiry, really just an informal inquiry into the defendant’s means, and ability to pay the debt. Defendants wishing to request a financial inquiry should come prepared with proof of income, and a monthly budget setting out that person’s usual income and expenditure.
If you feel embarrassed at discussing these matters in open court you may request the Commissioner to hold the inquiryin camera (in other words, in a closed court, with only the parties present).
If you are a plaintiff and you anticipate a defendant asking for deferred payment terms, be sure to advise the Commissioner, or provide proof of, any undisclosed income of other financial means of the defendant that you know of.
A plaintiff may request a Commissioner when granting a deferred payment order to insert an “acceleration clause” in the order, meaning that if any one payment is not made on due date, the full balance then outstanding becomes due and payable. This is a useful mechanism to ensure timely settlement of the judgment debt.
Paying a successful party
If judgment is given against a litigant, payment must be made directly to the successful litigant and not through the court.
An unsuccessful litigant should be sure to discuss payment with the other party outside court immediately after the case. If you don’t not feel comfortable with this, ask the Commissioner to determine the most efficient arrangement. The best is if a deposit is made directly into the successful party’s bank account, either by means of cheque, or EFT. This avoids unnecessary contact with the other party, and provides proof of payment.
If payment can only be made in cash, be sure to obtain a receipt.
Commissioners should inform the parties of this important practical matter.
If a party against whom a judgment is granted does not pay within two weeks of having been notified of the judgment, the successful party needs to approach the Clerk who will help to have the judgment transferred to the Magistrate’s Court.
The judgment will be enforced according to the normal execution process in the Magistrate’s Court. This involves the use of the Sheriff, who must obviously be paid for his services, but these costs may also be recovered from the judgment debtor. The Clerk is trained to help you through this process.