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As from 1st November, 2010, the small claims maximum increases from R7 000 to R12 000.

Your claim will be heard in the Small Claims Court for the area where the defendant lives (not where you, the claimant live), or where the “cause of action” arose – either of the two, the choice is yours.

The legal term “cause of action” simply means the reason for your claim (or what caused your claim).

Thus, if you park your car outside your home, and X smashes into it, your cause-of-action will be the collision, caused by X.

If X lives in Pretoria, and you in Johannesburg, the choice is yours to take the claim to the Pretoria Small Claims Court (where the defendant lives) or to the Johannesburg court (where the cause of action arose).

Check the “Court Numbers” link on the Home Page of this website, for the telephone numbers of the various Small Claims courts in the country, and feel free to contact me on the forums by registering with us and posting a message, I will promptly respond to you.

You can go to the forums here.

Step 1

Your first step is to send off a written Letter of Demand (LOD) to the defendant, in which he (or she) is given 14 working days to pay your claim.

The 14 days start from the first working day after the defendant has received your LOD.

The Small Claims Court offices throughout the country have a supply of LODs, and will gladly furnish you with one, and complete it for you, free of charge - with the small-claims official stamp on it, to boot, to give the LOD that official, severe, no-nonsense appearance.

However, if you are busy, and pressed for time, there is no need for you to waste time waiting in a long queue at the small-claims office, merely to obtain a LOD. You may, instead, copy-and-paste the LOD example (in bold print below), fill in the details and either hand-deliver it to the defendant, or send it by registered mail.

NOTE: Delivery of the LOD by email is not permissible, as the Small Claims Act does not make provision for electronic delivery.


LETTER OF DEMAND

TO (name and address of defendant)

FROM (your name and address, as well as your contact telephone number)

DATE:

WRITTEN DEMAND IN TERMS OF S 29 (1) OF THE SMALL CLAIMS COURT ACT (61 OF 1984)

Take note that the undersigned hereby claims from you the sum of R – , in respect of (give brief details, such as “unpaid loan”, or “collision damage”)

Take note further that unless the said sum is paid to the undersigned within 14 days from receipt of this letter, summons will forthwith be issued against you.

SIGNED BY YOURSELF


The LOD must be in duplicate.

Although I have for years recommended delivery of the LOD by registered mail, as the preferred method, this method has caused too many problems if the defendant fails to take delivery of the registered letter.

By refusing delivery of a registered LOD, the defendant in fact thwarts the process, and to counteract this some pragmatic small claims officials simply deem delivery to have duly taken place, if the claimant produces the registration slip, and then forthwith issue the claimant with a summons – after all, the defendant should not be permitted to defeat the system.

Unfortunately, other small claims officials – the “sticklers” who go-by-the-book – insist on proof that the defendant has in fact received the LOD, before issuing the claimant with a summons. In a sense, this attitude in itself also thwarts the process, if the defendant refuses delivery of the registered LOD.

I have been fortunate to obtain free senior counsel opinion on the question of delivery, and from this it is clear that receipt of the LOD, by the defendant, is in fact essential.

There are thus three ways to deliver the LOD:

1A The recommended method, now, is to hand-deliver – no longer registered mail.

If the LOD is hand-delivered, the claimant should have with him / her a copy of the LOD.

(a) If hand-delivery takes place at the defendant’s place of work, ideally, the defendant or the receptionist should sign the copy of the LOD as the claimant’s proof of delivery.

(b) If the defendant or receptionist (1) accepts the LOD but refuses to sign the copy,

the LOD should simply be left on the reception desk, and the claimant must then copy and paste Affidavit 1 (a), below, complete the parts in red print to reflect the claimant’s own facts, stating under oath what happened..

(c) If the reception refuses the LOD outright, the LOD should simply be placed in the firm’s letter box and the claimant must then copy and paste Affidavit 1(b) below, complete the parts in red print to reflect the Claimant’s own facts, stating under oath what happened.

(d) The Affidavit must (1) be signed by the claimant in the presence of a Commissioner of Oaths – any police or court official – and (2) the duly signed Affidavit then becomes the claimant’s proof of delivery of the LOD when, after 14 working days, you visit the small-claims office for the issue of a summons.

1B Likewise, if the LOD is hand-delivered at the defendant’s home, a copy of it should be signed

by the defendant or, in his / her absence, by anyone at his home who appears to be aged 16 or

older.

(a) If the defendant is at home and accepts the LOD but refuses to sign for it, the Claimant must copy and paste Affidavit 2(a), below, complete the parts in red print to reflect the complainant’s own circumstances, stating under Oath what happened, and sign the Affidavit in the presence of a Commissioner of Oaths (any police or court official).

The Affidavit then becomes the Claimant’s proof of delivery.

(b) If the defendant, or anyone at his home over the age of 16, refuses outright to accept the LOD, it should be left in the residence’s letter box. The Claimant must then copy and paste Affidavit 2 (b), below, complete the parts in red print to reflect the Claimant’s own facts, and the affidavit must then be signed in the presence of a Commissioner of Oaths. The Affidavit then becomes the Claimant’s proof of delivery.

2. Your second choice is to take the LOD to the sheriff serving the area where the defendant lives, for hand-delivery. This will cost you a fee, but because it is your choice to deliver the letter via the sheriff, and you are not compelled to do so, you cannot claim the cost from the defendant.

3. Your third choice is delivery by registered mail.

Although, for practical purposes, delivery by registered mail is no longer recommended, it may nevertheless be done.

If the claimant chooses this method of delivery, he / she must indicate his postal address on

the back of the envelope, to enable the postal authorities to return the LOD, unclaimed, to the

claimant, if the defendant fails to take delivery.

On registration of the LOD, the claimant will be furnished with a tracking telephone number, to

enable the claimant to keep track of the whereabouts of the LOD – has it been delivered, or not.

If delivery in fact takes place, the claimant should establish from the postal authorities the date

of delivery, and then start counting 14 working days – the first day being the first working day

after the date of delivery.

If, after 30 days, the defendant has not yet taken delivery of the LOD, the claimant should produce the registration slip to the small claims office, for the issue of a summons.

As earlier indicated, the claimant may at this stage encounter problems, depending on the attitude of the small claims official.

A pragmatic official will simply deem the LOD to have been delivered, and forthwith issue the claimant with a summons bearing the court date.

However, the official may insist on proof of receipt by the defendant, in which case the claimant will have to start afresh and attempt delivery by hand – see 1 and 2 above.


Step 2

If the defendant receives your LOD, but fails to pay after 14 days of receipt, you go to the Clerk of the Small Claims Court (a) with your registration slip and your copy of your letter (in the event of successful delivery by means of registered mail), or (2) in the event of hand-delivery, with a copy of your LOD bearing a signature as proof of delivery, or (3) with a copy of the LOD plus a Sworn Affidavit as explained in 1(a) and (b) above.

The clerk will then issue you with a summons, which will have a court date on it, and you must then urgently take the summons to the sheriff to serve on the defendant.

You will have to pay the sheriff’s service fee “up front” (about R100), but you may claim this cost back from the defendant, in addition to your claim.

The sheriff will inform the small claims administration in due course, by means of a document known as the "Return of Service" whether or not he was able to serve the summons. The Return of Service will be placed in your file, but you should keep in touch with the small claims administration, as well as the sheriff, for confirmation, one way or the other.

Do not expect the small claims staff to take the initiative of informing you - they are short-staffed, and many are inadequately trained.

If for any reason the sheriff has been unable to serve the summons - the defendant may no longer be at the given address - the Return of Service on file will indicate as much, and your case will then not be heard on the appointed date (the Commissioner may not adjudicate your case unless he has a Return of Service on file indicating that the summons has in fact been served on the defendant.)

If you as the plaintiff nevertheless wish to pursue the case, the onus is on you to track down the defendant, and have a fresh summons issued with the new address.

If the summons is successfully served, make sure you attend court on the appointed day - if you forget, your case will be removed from the roll, and you will have to start afresh with a new Letter of Demand and summons, to get the case re-enrolled.

 

feel free to contact me on the forums by registering with us and posting a message, I will promptly respond to you.

You can go to the forums here.

 

 

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