Small Claims SAA free guide by Bert van Hees

How to Win

The Rules Simplified

What happens in court when both parties attend, or when one stays away.

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 Plaintiff and Defendant are present in court, the Commissioner hears both sides of the saga. There are then three possible rulings:

The Commissioner rules in favour of the claimant, after hearing both sides of the story and applying the law to the facts.

The loser (Defendant) cannot appeal, and has 10 working days in within which 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.

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

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 often 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 a second time, 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 Commissioner to believe him instead of the defendant - which the court may not do without the IOU - his case will be dismissed, without appeal, and without a third chance to present his/her case.

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

If the defendant is absent

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 the 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 office.

However, due to the unreliability of "snail mail", the claimant may expedite the process by (a) informing the defendant of the default judgment him/herself and (b) submitting to the small claims office Affidavit 5 in which he/she states under Oath that he/she personally informed the Defendant of the default judgment, how and when.

A "considered" judgment cannot be appealed in the High Court, but a "default" judgment may be set aside (rescinded), by means of an application placed before the Small Claims court itself.

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 set aside) 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.

Commissioners do not take kindly to Defendants who consider their business pressures or personal commitments more inportant than the proceedings, and a defendant who fails to appear due to such pressures or commitments runs the risk of his application for rescission being rejected, and the default judgment confirmed, even with a valid defence.

Illness is a valid reason for a Defendant's absence, and such a Defendant has to (a) inform the Plaintiff, within the 10 day payment grace period, lof his/her intention to apply for recission, and (b) ensure that the application to set aside the default judgment is lodged in the small claims office within six weeks of being informed of the default judgment.

When the defendant lodges the application, he/she will be informed of the date when the application is to be heard, and the defendant should then ensure that the Plaintiff is informed accordingly.

Such a defendant will also have to produce to the court a medical certificate as proof of his illness.

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 Plaintiff 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/she now has to re-enrol his/her case by issuing a fresh summons, and paying the sheriff's fee a second time.

If such a claimant ultimately wins his/her case, he/she may only recover the second sheriff's fee from the defendant, and not the first.