Self-Help Guide to Instituting Action in the Small Claims Court
This guide is designed to assist you in instituting action in the Small Claims Court. It starts off by explaining what the Small Claims Court is and what types of matters the Small Claims Court can listen to.
The Small Claims Court provides a cheap, simple and fast way to institute minor civil claims.
Different Small Claims Courts open at different times, but they typically open at 16h00 or 17h00 and sit outside of normal office hours. This is to allow people to make use of the court without having to take leave from their day jobs. The Small Claims Court is designed to help people with no legal knowledge or background.
Legal assistants and clerks of the Small Claims Court will assist you free of charge.
There is a prerequisite that you must appear in person; you are not allowed to have a legal representative to represent you, but neither is your opponent (the other party).
The only costs that may be awarded against a party is the limited Sheriff’s fees paid by the other party.
TIP: The court is open to the public and you can bring your friends and/or family members along for emotional support. It remains a court, so be sure that you are on time, dressed neatly and at all times respect the dignity of the court. Don’t eat, drink or speak loudly in the court and make sure that your cell phone is switched off.
What type of case can be instituted in this court?
(Lawyers talk about “causes of action”)
- Actions for the delivery or transfer of any property, movable or immovable, not exceeding R20 000 in value.
- Actions for ejectment against the occupier of any premises within the area of jurisdiction of the court. Where the right of occupation of the premises is in dispute, the right may not exceed R20 000 in value.
- Actions based on or arising out of a “liquid document” (a written, unconditional acknowledgement of debt that is signed by the debtor or his agent) not exceeding R20 000 in value (for example, a cheque).
- Actions based on or arising out of a credit agreement, where the claim or the value of the property in dispute does not exceed R20 000 in value.
As the last point includes a wide range of cases, the Small Claims Court Act 61 of 1984 also specifically lists which types of cases cannot be instituted in the Small Claims Court.
What type of case cannot be instituted in this court?
- Divorce
- Claims concerning the validity of a will
- Claims concerning the status of a person in respect of his mental capacity
- Claims against the State (including municipalities and local governments)
- Claims based on the cession or the transfer of rights
- Claims for damages in respect of defamation, malicious prosecution, wrongful imprisonment, wrongful arrest, seduction, or breach of promise to marry
- Claims in which “specific performance” is sought (meaning you want the court to force the other party to perform their contractual duty) without an alternative claim for payment of damages
- A decree of perpetual silence (meaning you want the court to force the other party – who has threatened to bring a claim against you – to either bring the claim within a specified period of time or forfeit the right to do so)
- An interdict (meaning a court order prohibiting someone from doing something specific – like disclosing trade secrets – or mandating them to do something specific – like complete repairs in terms of a contract)
The court may also stop the proceedings if it is of the opinion that the case is too difficult or complex to be heard in the Small Claims Court. You will then have to institute the matter in the Magistrates’ Court or High Court.
TIP: The Small Claims Court may hear matters where the amount of the claim or counterclaim is R20 000 or less.
You may abandon a part of your claim or counterclaim to bring the claim or counterclaim within the jurisdiction of the court. For example, if you have a claim for R22 000, you may decide to waive R2 000 of your claim, so that you can claim the remaining R20 000 in the Small Claims Court.
If you do want to have someone ejected from a premises, it is advisable to seek legal advice as this can get very complicated and potentially involves several other pieced of legislation in addition to the Small Claims Act.
Only natural persons (that means a human being) may institute a claim in the Small Claims Court. Thus “juristic persons” – like a company, corporation or association – are excluded. Any person under 18 years of age must be assisted by a parent or guardian if they institute a claim.
TIP: The Small Claims Court is designed to assist private individuals with cases involving smaller amounts of money.
As such, the Small Claims Court has its hearings outside of normal business hours, to enable individuals to attend court without having to miss work or forfeit wages.
The jurisdiction will follow the opposing party (defendant) or the type of case. This means that if the opposing party (defendant) lives or works in the area assigned to a certain Small Claims Court, the claim must be instituted in that Small Claims Court.
Alternatively, the Small Claims Court in whose assigned area the whole cause of action arose could hear the matter. For example, if you had a motor vehicle accident in Pretoria, the Small Claims Court in Pretoria could also be approached to hear the matter.
In other words, you have to either start the case in the court in whose area the defendant lives or is employed or otherwise where the whole of the cause of action arose. If you take a claim for damage to your vehicle, you would be able to issue summons in the court where the driver of the other vehicle stays or where the accident took place.
What is the process that I should follow if I want to institute a claim?
The Small Claims Court Timeline:
- A letter of demand is drafted & delivered
- 14 working days must lapse from receipt of the letter of demand by the opposing party before you can approach the court to issue summons
- Issue summons (and obtain a court date)
- Statement by opposing party with or without a counterclaim
- Hearing of the matter
- Review (if necessary) and
- Enforcement of the judgment or order.
TIP: A proper and correct letter of demand may in many cases cause the other party to pay the required amount. In such a case, it will be unnecessary to approach the court again, unless a summons has already been issued.
Scenario: Payment for Goods Delivered
Sipho owns a car that he wants to sell. He enters into an oral contract with Sue to sell the car to her.
The terms of the contract are the following:
- Sipho sells his car to Sue for R11 000 (eleven thousand rand).
- Sipho will deliver the car to Sue on 21 March.
- Sue will pay the amount of R11 000 (eleven thousand rand) into Sipho’s bank account on or before 21 March.
On the morning of 21 March Sipho delivers the car to Sue. Sue says that she will make an electronic transfer into Sipho’s bank account that same day. It is now two weeks later and the money still does not reflect in Sipho’s bank account.
Scenario: Damage to Property
On the 5th of February Mr Peter Arendse, while driving his black ABC motor vehicle (registration number: CBA 123 TP), approached a stop sign at an intersection on the corner of Matilda Street & Park Street, Hatfield, Pretoria. Mr Arendse saw the stop sign and stopped at the stop sign.
At the same time Mr Andre Willemse was driving his white DEF motor vehicle (registration number: FED 456 TP) behind Mr Arendse. Mr Willemse did not see that there was an intersection with a stop sign to stop and therefore did not realise that Mr Arendse stopped his motor vehicle. Mr Willemse subsequently failed to stop his motor vehicle in time to avoid an accident and drove his motor vehicle into the rear end of Mr Arendse’s motor vehicle.
Mr Arendse’s motor vehicle suffered damages at the rear end as a result of the accident.
Mr Arendse wants to claim damages for the accident which Mr Willemse caused by not stopping in time at the stop sign and driving into Mr Arendse’s motor vehicle at the rear.
Mr Arendse followed good procedure and immediately obtained all the relevant details from the other driver. These details included all details relating to the motor vehicle the other driver was driving such as the motor vehicle’s registration plate number, type of motor vehicle, which can usually also be obtained from the license disc in the windscreen of the other driver.
Further, he also obtained the other driver’s details taken from his driver’s license such as his full names and surname, identity number. He also took photos of the motor vehicles to show the damages and how the motor vehicles were positioned after the accident.
He made a note of the date of the accident and what the weather conditions were like, reported the accident at the nearest police station as soon as he could and obtained a copy of the accident report.
Afterwards, he obtained three independent quotes from auto body repair workshops to get an estimation of the damages to his vehicle.
Scenario: Delivery of Property
William buys a dining room table from Helen Furniture (Pty) Ltd.
The terms of the contract are the following:
- Helen Furniture (Pty) Ltd will deliver the dining room table on 24 March.
- William has to pay the amount of R5 000 (five thousand rand) on or before 20 March.
William pays the amount of R5 000 (five thousand rand) on 18 March. The 24th of March has already passed and Helen Furniture (Pty) Ltd has not delivered the table yet.
Scenario: Rent Arrears
Ms Sandy Mthembu and Mr Danny de Santos concluded a written lease agreement on the 10th of April. The parties agreed that Ms Mthembu will lease her property situated at 123 Buck Street, Hatfield to Mr Danny de Santos for 12 (twelve) months with a monthly rental amount being R2,500.00 (two thousand five hundred rand).
The terms of the agreement were the following:
- Ms Sandy Mthembu agreed to lease her property situated at 123 Buck Street, Hatfield to Mr Danny de Santos.
- The lease period as stipulated in the lease agreement will be from 1 May to 30 April (12 months).
- Mr de Santos will rent this property from Mr Mthembu for a monthly rental instalment of R 2,500.00 (two thousand five hundred rand).
- Mr de Santos will occupy the property from 1 May to 30 April.
Scenario: Services Rendered
On the 10th of May Mr Ronald Pitsi and a painter, Mr William Thabato, verbally agreed that Mr Thabato will paint Mr Pitsi’s house situated at 100 Sun Street, Hatfield, Pretoria. Mr Thabato must finish painting the house within a period of three days being from the 15th of May to the 17th of May. Mr Pitsi will provide all the paint needed to paint his house. Mr Thabato must bring all the necessary painting equipment to ensure that he will be able to complete the job. Mr Pitsi will pay Mr Thabato R10 000.00 (ten thousand rand) on the satisfactory completion of this painting job.
The terms of the verbal agreement are the following:
- Mr Thabato will paint Mr Pitsi’s house situated at 100 Sun Street, Hatfield, Pretoria.
- Mr Pitsi will provide all the paint as needed to complete the job.
- Mr Thabato must use his own painting equipment to complete the job.
- Mr Thabato must complete the painting job within three days being from 15th of May to the 17th of May.
- Mr Pitsi will pay Mr Thabato an amount of R10 000.00 (ten thousand rand) on completion of the painting job.
Your first step is to address a written letter of demand to the other party
Use Form J993 – Letter of Demand
Draft a written letter of demand to the opposing party (setting out the particulars of the facts and the amount of the claim). Deliver the letter of demand by hand, registered post or by sheriff to the opposing party and give him a minimum of 14 working days from his receipt of the letter of demand to settle your claim. Please note that, should you make use of the sheriff to deliver the letter of demand, you will have to pay the sheriff’s fees.
To enable you to properly draft your letter of demand for damage to property, you will need to be able to show the amount of your damage. For this, you will need to first obtain a quote. Remember to keep all receipts necessary to prove your claim.
Keep emotional language, “mud slinging”, out of the letter of demand! Stick to the facts – you don’t want to end up being sued yourself.
If you serve the demand on the opposing party by hand, have someone accompany you and deliver it to the opposing party directly, or if not possible, to a person of 16 years or older at the same address where the opposing party lives. Remember to get the name and signature of the recipient to confirm the delivery. If the recipient refuses to sign for receiving a copy of the letter, you and the person who accompanied you should each make an affidavit (a statement made under oath before a commissioner of oaths – such as a police officer) to confirm delivery.
In the present scenario, the body of the letter of demand may contain text similar to the following:
“I hereby claim from you the R11 000.00 (eleven thousand rand) which you had to pay into my bank account on or before the 21st of March.
You and I entered into an oral contract on 14 March at a coffee shop in Pretoria. I represented myself and you represented yourself. In terms of the contract I sold to you your car (with registration number TWG 345 GP) for R11 000 (eleven thousand rand). I had to deliver the car to you on 21 March and you had to pay the amount of R 11 000 (eleven thousand rand) into my bank account on or before 21 March.
I delivered the motor car to you on 21 March. The 21st of March has now already passed and you have not yet paid me the R 11 000.00 as agreed into my bank account.
I hereby demand from you payment in the amount of R 11 000.00 (eleven thousand rand).
Unless you comply with this demand within 14 (fourteen) business days after receipt of this letter, summons will be issued against you in the Small Claims Court“
TIP: It is generally advisable to deliver the letter of demand by hand, or to have the sheriff do it. This avoids the problem of having to prove that the letter or registered letter was in fact received by the other party.
How to institute an action?
Go to the clerk of the court and take along the written letter of demand, proof of delivery of the demand, any proof of the claim (for example a contract) and the full name, address and telephone number of the opposing party. It would also save time if you download and complete the Small Claims Court Complaint Form, and take that along as well.
The clerk will assist you with the drafting of a summons. The clerk will then give you a court date and a time for the hearing. The clerk will then issue the summons and give it to you.
You can now serve the summons personally on the opposing party and remember to keep the acknowledgement of receipt, using the same procedure as with the letter of demand above.
You may also hand the summons to the sheriff to serve it for you. If you do this, remember to get the return of service (document confirming that the summons was served) from the sheriff. If you make use of the services of the sheriff, you will also be liable to pay his fees.
You should inform the witnesses, if there are any, of the date and time of the hearing so that they can be present at court.
In the present scenario, the relevant parts of the complaint form may contain text similar to the following:
“Main aspects of your claim:
- Sue and I entered into an oral contract on 14 March at a coffee shop in Pretoria. I represented myself and she represented herself.
- In terms of the contract I sold to her my car (with registration number TWG 345 GP) for R11 000 (eleven thousand rand). I had to deliver the car to her on 21 March. She had to pay the amount of R11 000 (eleven thousand rand) into my bank account on or before 21 March.
- I delivered the car to her on the 21st of March.
- The 21st of March has already passed and she has not paid the R 11 000.00 (eleven thousand rand) into my bank account.
- I am claiming from Sue the R 11 000.00 (eleven thousand rand) which she owes me in terms of the contract.
Current state of affairs:
- It has been three months since Sue had to pay for the car. Sue has not paid back the R 11 000.00 (eleven thousand rand) which I demanded from her to pay back to me.
Steps taken to resolve problem:
- I phoned Sue on 22 March to confirm that she made payment on the previous day. She did not pick up her phone.
- I went to her house on 28 March and she told me again that she will follow up with her bank in the next few days.
- On the 6th of April I phoned Sue again I left a voice message asking that she pay the money she owes me.
- I delivered a Letter of Demand to Sue 15 days ago.
TIP: The waiting lines at the Court may be long. Take along something to read or do while waiting.
What are the possible steps that the opposing party can take?
- The opposing party may settle the claim (in this scenario you should supply a written receipt) and the court should be notified immediately of the payment.
- The opposing party may deliver a written statement with the nature of his / her defence and particulars of the grounds on which it is based (this will be delivered to the clerk and a copy will be sent to you).
- The opposing party may institute a counterclaim that contains the particulars of the grounds of his / her claim.
- The opposing party may simply appear at the date of the hearing to oppose your claim.
The court date will remain the same regardless of which of the above happens.
TIP: You may at any time before judgment ask the court to change something on your claim or abandon it altogether if no party to the proceedings are prejudiced.
What happens at the hearing?
You should personally appear in court. No legal representation such as an advocate or attorney may appear on your behalf.
Any official language of South Africa may be used in court. If an interpreter is necessary you may make arrangements with the clerk of the court for the services of an interpreter – the sooner the better.
The presiding officer (“commissioner”) will assist both parties in explaining the procedure.
At the court hearing the procedures are informal and simple. The commissioner of the court will request you to state your case. The facts should be stated as briefly as possible.
The commissioner asks all the questions and may give you an opportunity to also ask questions. Both parties may call their witnesses and the commissioner may question them. If the commissioner feels that it is necessary he / she will not question all the witnesses. It is generally a good idea to check with the clerk of the court to see if an interpreter should be arranged if a language other than English will be used.
It is necessary that you bring along all your documents (including the written proof that your summons was served on the opposing party) and the proof of your claim.
Audio recordings and other proof may be accepted by the court.
You should answer the questions and submit your proof. Neither party is automatically entitled to question the other party or his / her witnesses, but the commissioner may ask questions of any of the parties or witnesses.
You should listen attentively to what the opposing party says. When it is your turn to speak, bring to the attention of the commissioner any facts which in your opinion the opposing party did not present correctly.
If an opposing party is not present at the hearing the court may give judgment against the opposing party (called “default judgment”). The court may decide in favour of either party or decide that the evidence does not enable it to give a judgment (called “absolution from the instance”). In case of the latter, the matter cannot proceed before the court, but you may be able to restart the process and bring it to court again if you have more and/or better evidence for your claim.
TIP: The court is open to the public and you can bring your friends and/or family members along for emotional support. It remains a court, so be sure that you are on time, dressed neatly and at all times respect the dignity of the court. Don’t eat, drink or speak loudly in the court and make sure that your cell phone is switched off.
What happens after the decision?
Appeal / review
No appeal is possible, but review is a possibility.
The grounds of review are:
- The court has no jurisdiction.
- An interest in the cause, bias, malice, or corruption on the part of the Commissioner.
- Gross irregularity of the proceedings.
The review process can be complicated, is done in a higher court than the Small Claims Court and falls outside of the scope of this guide. It is advisable to seek the assistance of a qualified attorney if you believe a review is necessary in your case.
What happens if there is an order to pay and the opposing party does not pay?
If the Small Claims Court makes an order in your favour and the opposing party fails to pay the money or ordered instalment within such time as determined in the order, or otherwise within 10 working days, you may approach the clerk of the Court, although it would be advisable to seek legal advice at this stage.
When you approach the clerk of the Court, you should give the clerk a written application accompanied by the judgment from the Small Claims Court and an affidavit that specifically sets out the amount that the opposing party still owes you and how you calculated that amount. The clerk will then assist you with the process to be followed to get your money from the opposing party.
TIP: If the opposing party refuses to pay regardless of an order in your favor, the process becomes more complicated and you should approach a lawyer to assist you in enforcing the order.