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Maximum Claimable

The present maximum claimable is R7 000, and may not be split up to recover a higher sum. Thus, if X owes Y R8 000, the claim may not be split into two claims of  R5 000 and R3 000.

If Y chooses the Small Claims Court, he will have to abandon the excess R1 000, and may not recover the abandoned sum in a different court.

How to win - the Four Essentials

To use the system successfully, and not find it a frustrating waste of money and time, it is crucial to get it right the first time. There are four essentials:

  • Make sure your claim is legally valid see a lawyer, but do not rely on advice from the Small Claims Court staff. As helpful as they are, they are clerks and have no legal qualifications or training
  • Make sure you claim from the correct person
  • Keep the details simple - a complicated claim may be thrown out as not suitable for the small claims system
  • Don't forget to take with you to court all the documents and witnesses needed to prove your claim

If you get either of the first two wrong, your claim is certain to be thrown out, and if that happens there is no appeal or second chance. The commissioner may not award you judgment if your claim is legally invalid, or against the wrong person - no matter how strongly you feel about it!

Concerning the third essential, the aim of the system is the quick adjudication of disputes that are relatively simple and easy to resolve - for lawyers anyway. With this in mind, the Small Claims Act hastens to the rescue of commissioners who get bogged down with complicated claims, and empowers them to summarily declare such a case unfit for the small claims system.

Such a ruling, as with any other small claims decision, is final and cannot be appealed. A claimant wishing to pursue such a claim, nevertheless, has to take it to the ordinary civil court, where costly legal representation is necessity.

The fourth essential is equally important. Without witnesses (to a collision, perhaps) or a written contract to prove the terms and conditions (such as a lease agreement), or invoices to prove a transaction, and so on, a claimant is likely to suffer the inconvenience of an otherwise unnecessary postponement, or worse, the humiliation of his claim being dismissed outright as unproven. Be warned, it often happens.

Of particular importance to bring to court are experts, such as motor mechanics to prove claims involving motor repairs, or roofing experts, architects, a PC expert if your claim involves a computer, or even an independent dentist to prove your claim against your regular dentist.

But be warned again: Because the commissioner may need to question your expert, a statement or sworn affidavit by the expert, as a substitute for his actual presence in court, is unacceptable, and may seriously jeopardize your claim if the commissioner needs to question the absent expert - after all, the commissioner cannot question statements or affidavits!

Remember, it is seldom that professional people offer free public service, but small claims commissioners do, and their service often includes research of the law. The few commissioners who offer their time deserve admiration and praise.

The rules simplified

As popular as the system is, its rules and rulings often confuse those not accustomed to court procedures. Here they are in layman's language:

If both parties are present in court

If both the claimant and defendant in a dispute are present in court, the commissioner hears both sides of the saga. There are then three possible rulings:

  • Judgment for Plaintiff:

In this scenario, the commissioner rules in favour of the claimant after hearing both sides of the story and applying the law to the facts.

The loser cannot appeal, and has 10 working days grace to pay the claim, which includes the refund of the sheriff's fees to the claimant.

The grace period starts on the first working day after the ruling, and excludes weekends and public holidays.

Thus, if such a ruling is given on a Thursday, the first day of grace starts that Friday, and the second will be the Monday, and so on.

  • Judgment for Defendant

This means the claimant has lost his or her case. Again, the unhappy claimant may not appeal.

  • Absolution from the Instance

This ruling is given if the Commissioner cannot decide which side to believe. It means neither side has won.

It happens in a one-word-against-the-other situation.

Example: X borrows money from Y, and signs an IOU. However, Y loses the IOU, and now has no proof of the loan.

If Y takes X to court for repayment - without the IOU - and X denies the loan, it is Y's word against X's .

The court may not prefer the one version against the other without valid legal grounds.

In such a situation the Commissioner has to either dismiss the claim as unproven - without appeal - or, as usually happens, rule "Absolution from the Instance".

The benefit for the claimant is that such a ruling leaves the door open for him to present his claim once more, at a later hearing.

Thus, if Y finds the IOU, he may re-enrol his claim and will this time win his case.

The benefit for the defendant in an absolution ruling is that he is absolved from liability, until the claimant takes the case to court a second time and wins.

If, however, Y is unable to find the IOU, but goes to court a second time nevertheless, hoping to somehow persuade the Commissionerto believe him instead of the defendant - which the court may not do without the IOU - his case will be dismissed, without appeal.

The claimant in an absolution ruling does not get a third chance.


If the defendant is absent

Default Judgment: If the defendant is absent, and the claimant present at court, the court will first ensure that the claim is valid, then give the claimant a "Default Judgment" against the defendant.

The term "default" means the defendant failed to attend the proceedings.

As with a "Considered Judgment" against him, the defaulting defendant has 10 working days to pay, but the grace period only starts from the day after the defendant is informed of the Default Judgment.

(Remember, in the "Considered Judgment" scenario, the defendant is present in court, and is thus aware of the judgment against him. The grace period therefore starts the very next working day after the judgment. In the default scenario, however, the defendant is absent from court, and cannot know of default judgment until he is informed of it.)

In practice, a defaulting defendant is notified by means of a letter sent by the small-claims administration.

Rescinding (or setting aside) a Default Judgment:

If a defaulter has a legally valid defence to the claim, as well as a valid reason for his failure to appear in court - he has to have both - he may "rescind" (or cancel) the default judgment.

He does this by lodging Rescission Application with the small claims administration without delay, once he becomes aware of the default judgment.

Warning: Lack of money is not a valid defence to a claim, nor, strictly speaking, are forgetfulness, personal commitments, or business pressures valid reasons for a defendant's failure to attend proceedings.

In practice, whether a court will accept forgetfulness or business and other pressures as valid reasons for a defendant's failure to appear in court, depends on the individual Commissioners themselves.

The sticklers for rules tend not to condone - even if the defendant has a valid defence to the claim itself - while other Commissioners consider justice more important, and tend to bend the rules.

If a rescission application is granted, the claim starts afresh, and the claimant and defendant confront each other in court (see above "If both parties are present")


If the claimant is absent

A claimant who fails to appear in court, for whatever reason, does not have to go through the same rigmarole as a defaulting defendant.

In court, the Commissioner merely endorses the file, "removed from roll".

However, this places the claimant back in "Square One", as he now has to re-enrol his case by issuing a fresh summons, and paying the sheriff's fee a second time.

If such a claimant ultimately wins his case, he may only recover the second sheriff's fee from the defendant, and not the first, as the defendant cannot be blamed for the claimant's failure to appear in court.


Motor Collisions

The next time you show a rude finger sign at someone hooting at your driving, give it a thought - a news report says South African driving is so bad that foreign tourists heading for our sunny skies are warned to be extra careful on South African roads.

It is no wonder that our Small Claims Courts get swamped with collision claims. People reverse into each other, open the driver's door into the path of a car passing from behind, drive too close behind the car in front, jump red traffic lights - you name it.

And of course cellphone conversations while you drive - the one hand on the steering wheel, the other holding the phone, and the driver's thoughts everywhere but on the road!

While the Small Claims Courts eagerly sweep technicalities out the way, in order to keep matters simple, a technicality that cannot be avoided in collision claims is legislation known as the Apportionment of Damages Act (ADA).

Thus, a claimant believing himself completely innocent in a collision claim, may be surprised to find himself ruled partly to blame, even if only two percent, according to the ADA.

Example: X parks his car in the road, then opens the driver's door into the path of a car passing from behind, driven by Y, who smashes into the open door.

Y puts in a claim against X , for the damage to his car - a cut and dried case, surely?

Not necessarily - the court may well rule that Y passed too close to X's car, making Y partly to blame.

If the apportionment is 98-2 against X, making X only 98 percent to blame, it means X only has to pay 98 percent of Y's damage.

Only the owner of a collision vehicle may claim for the damage to his vehicle, against the guilty driver.

Thus, in the above example, if Y was driving Peter's car, only Peter may claim for the damages.

However, if Peter takes X to court, Peter will have to take Y with him as his witness, to explain how the collision happened.

If Y does take X to court, Y's claim will be dismissed, as it was not Y who suffered the damage, but Peter.

The application of the ADA is relatively simple if both drivers were the owners of the cars they were driving - the court simply decides who was how much to blame.

However, the ADA becomes complicated - for the layman - if either of the drivers was driving a car belonging to someone else, in which case the "Innocent Owner" principle applies.

Remember, only the owner of the vehicle may claim for the damage to his or her car.

If the owner was not driving when the collision happened, he is regarded as the "Innocent Owner".

Remember also that an innocent owner has the choice to claim his damage from either driver involved in the collision, or even from both jointly.

If the innocent owner takes both drivers to court, the court will rule who was how much to blame, and each will be liable accordingly to the innocent owner.

However, the ADA stipulates that even if such a driver is ruled only one percent to blame in a collision, he becomes 100 percent liable to the innocent owner.

Thus, if Peter in our example above decides to hold his virtually innocent friend "Y" liable, instead of "X" who was mainly to blame, "Y" has to pay Peter's damage in full, instead of only two percent of it.

  • Here are some possibilities:

Scenario 1: involves the example above, with X and Y both driving their own cars - Y hold X responsible, for failing to first check if it was safe to open his door.

However, the court rules "Y" 10 percent to blame, for passing too close to "X". This means "Y" may only claim 90 percent of his damage from "X".

Scenario 2: In the same collision as in Scenario 1 above, the car "Y" is driving belongs to Peter.

Firstly, "Y" cannot claim for the damage to the car he is driving - only Peter, the owner, may.

Peter, as the innocent owner, may claim from either "X" or "Y", or from both jointly.

If Peter claims from "Y" only, the ADA makes "Y" 100 percent liable for Peter's damage, even though the court has only ruled him 10 percent liable.

Similarly, if Peter claims from "X" only, the ADA makes "X" 100 percent liable for Peter's damage, even though the court ruled "X" only 90 percent to blame.

Scenario 3: Peter holds both "X" and "Y" jointly liable for his damage.

Here, more fairly, the ADA does not interfere with the court's ruling, and if the ruling is 90-10 percent, so it shall be.

Scenario 4: "X" is driving Paul's car. Paul, as an innocent owner, may hold both "X" and "Y" jointly liable for his damage, and leave it to the court decide who pays how much. Paul may also hold either the one or the other liable.

If Paul picks on "Y" only, the ADA makes "Y" 100 percent responsible, even though the court ruled him only 10 percent liable.

Scenario 5: "X" is driving Peter's car, and "Y" Paul's, which makes both Peter and Paul innocent owners. Peter may hold both "X" and "Y" jointly liable, and leave the court to rule who is how much to blame.

However, if Peter holds either "X" or "Y" liable, whoever he picks on becomes 100 percent liable for his damage. The same applies to Paul.

Appeals, High Court Reviews

Small-claims rulings cannot be appealed, even if bad in law.

However, an unhappy loser may launch High Court review proceedings, but only on the following grounds:

That the Small Claims Court had no authority to adjudicate the particular claim. Defamation claims, for example, may not be adjudicated by the Small Claims Court, and if a Commissioner does adjudicate one by mistake, the ruling becomes invalid and may be reviewed and set aside.

A small-claims ruling may be reviewed on the unlikely grounds of bias, malice or corruption on the part of the presiding Commissioner.

On the grounds of gross irregularity in the proceedings. However, "gross irregularity" should not be confused with a Commissioner's right to decide when he's heard sufficient evidence to make a ruling, in which event he may refuse to hear more.

Nor should the third ground be confused with the Commissioner's right to refuse to hear further testimony, once he has decided the case.

Warning: Due to legal complexities entailed in the second and third grounds for High Court review, legal representation is essential, which makes such proceedings costly.

A loser launching review proceedings over a R7 000 claim, may well end up as much as R15 000 down the drain, or more - and may still be the loser if the High Court dismisses the case.

Enforcement : Good and bad news

The good news is if you get it right the first time - if you have a valid claim, the correct defendant, you keep the details simple, and have all your witnesses and documents in place - you'll obtain the judgment you want, with minimal cost or hassle. That's the easy part of it.

The bad news is that a small-claims judgment for the claimant does not mean instant cash - or that the claimant will get his or her money at all.

The judgment (Court Order) merely entitles the claimant to enforce the judgment, if the defendant fails to pay within the grace period.

Before the Constitution, hardened debtors could be jailed for failure to pay. Our sheriffs have many stories to tell about debtors who somehow managed to find the money they owed - sometimes seconds before the jail doors slammed closed behind them.

This is no longer possible, as the practice of jailing people for debt is now unconstitutional.

This has turned the enforcement of Civil Judgments into a costly nightmare, if the debtor fails to cough up.

Worse, if the debtor disappears, as often happens, the services of lawyers and tracing agents to locate him or her may leave you badly out of pocket.

Alas, if the debtor fails to satisfy the judgment, there is nothing more that the small-claims system can do for you.

If you nevertheless wish to pursue the matter, it has to be transferred from the Small Claims Administration to the costly civil courts.

You will then have to obtain a document known as a Writ of Execution against Moveable Property at legal stationers.

As a final gesture of goodwill, the Small Claims Administration will help you complete the document, and you then take it to the Sheriff (as with the summons).

If you have managed to locate the defendant, the Writ empowers the sheriff to seize any attachable property belonging to him or her, and the sheriff's fee for this is in the region of R120 - a sharp increase from the plus-minus R40 it cost to serve the summons.

If the sheriff is able to seize sufficient movables to cover your claim plus his own fees, your troubles are over.

Warning: You are now in the realm of the ordinary civil court - no longer the user-friendly, inexpensive small claims system.

To enforce the small-claims judgment via the ordinary civil courts (especially if the defendant has disappeared, or owns nothing that is attachable) involves costly legal expertise and tracing fees - completely out of proportion to your claim, and with little prospect of recovering your costs.

If you find yourself in this predicament, it may be wise, at this stage, to abandon your claim, and to write off your loss to one of life's unfortunate experiences.