GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS 1

GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS

ACCESS TO JUSTICE FOR ALL ISSUED 2020 2 GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS

TABLE OF CONTENTS PAGE

Foreword by the Deputy Minister of Justice and Constitutional 3 Development, Mr John Jeffery, MP

Purpose and application of the Guide 4

Historical background 5

Small Claims Court Terms and Definitions 7

Chapter 1: The form and nature of the Small Claims Court 10

Chapter 2: Jurisprudence 14

Chapter 3: Commissioners 25

Chapter 4: Duties of the clerk of the court 27

Chapter 5: Instituting a claim 31

Chapter 6: Defending a claim 36

Chapter 7: Counterclaims 37

Chapter 8: Applications 38

Chapter 9: Trial 42

Chapter 10: Evaluation of evidence 47

Chapter 11: Judgments and orders 49

Chapter 12: Steps following judgment 52

Chapter 13: Review 54

Chapter 14: Miscellaneous 56

Synopsis of case law 57

Changes in rate of interest and applicable case law 60

Sources of reference 64

Pro-forma orders 65 GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS 3

FOREWORD BY THE DEPUTY MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT, MR JOHN JEFFERY, MP

Small Claims Courts are a vital part of improving access to justice and they have truly been a success story of our Department.

In a little over a decade, we’ve managed to increase the number of Small Claims Courts from 152 in 2007 to 414 Small Claims Courts nationwide as well as 49 additional places of sitting as at March 2019.

This is no small achievement – given that, in the past, most of these courts were in white or urban areas and today we have at least one functioning Small Claims Court in every magisterial district across the country – many in traditionally Black and/or rural areas and thereby increasing access to many people who were previously excluded. We have also established new Advisory Boards and revived inactive ones.

Of course, now that we have succeeded in attaining 100% rollout of Small Claims Courts across the country, it is imperative that we look at ways in which we can ensure that these courts work better.

It means looking not only at operational matters such as security, hours of sitting or the capturing of statistics, but at the Codified Instructions, at the Guidelines to assist Commissioners and Clerks, as well as amending the Rules where necessary and updating the Small Claims Courts Act, 61 of 1984, which is a piece of legislation which pre-dates the Constitution.

The Guidelines for Commissioners and Clerks of Small Claims Courts were drafted and finalized in 2010. A few years later it became apparent that there was a need to review the Guidelines to bring them on par with the legislative and pragmatic realities within these courts.

A Steering Committee was established and the Department started the process of drafting new Guidelines in 2016. The Guidelines were circulated for two rounds of comment and we received various comments from legal practitioners, magistrates, Commissioners, members of Advisory Boards and from bodies such as the Law Society of South Africa.

These comments were all considered and, more importantly, where the comments offered differing views on particular issues, additional legal opinions were obtained to assist in clarifying issues.

Small Claims Courts are a powerful mechanism to provide access to justice, especially for the poor and we are confident that these Guidelines will assist and strengthen our Small Claims Courts.

John Jeffery, MP 4 GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS

PURPOSE AND APPLICATION OF THE GUIDELINES

1. This guide will benefit Commissioners and Clerks of the Small Claims Courts, and other professionals working with matters involving small civil claims between parties who seek fast and inexpensive legal redress. It is specifically designed to equip Commissioners and Clerks with the basic skills needed to deal with and adjudicate over certain small civil claims in terms of the Small Claims Courts Act of 1984.

2. The guide is there to provide guidance and is not intended to constitute legal advice, nor can it provide for each and every type of case or matter that comes before a Small Claims Court.

3. The primary source of information for the development of the guide is the Small Claims Courts Act, 1984 (as amended), and the Rules Regulating Matters In Respect Of Small Claims Courts (as amended).

4. It must be emphasized that these Guidelines must be read with the Codified Instructions1 and any Circulars, issued by the Department of Justice and Constitutional Development, from time to time.

5. Any person who requires more information or assistance with any matter pertaining to the institution of a small civil claim in the Small Claims Courts, may contact the clerk of the Small Claims Court at any local Magistrate’s Court, or may visit http://www.justice.gov.za/scc/scc. htm.

1 The Codified Instructions are available on the DOJCD website: www.justice.gov.za GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS 5

HISTORICAL BACKGROUND

The initiative to establish Small Claims Courts began in the early 1980s. The Hoexter Commission of Inquiry was appointed to inquire into the structure and functioning of the courts in South Africa. The Commission reported in 1982 that South Africa was in desperate need of a specific court designed to settle small civil claims in an informal and inexpensive manner.

The Commission envisaged the procedure in the Small Claims Courts to be similar to that of an arbitration - conducted in an informal atmosphere by a presiding officer, to be known as a Commissioner, who assumes and maintains an active inquisitorial role in the proceedings. It was proposed that the Commissioner should be vested with powers to adopt any procedure which he/she considers to be convenient and to afford a fair and equal opportunity for each party to present his/her case in an atmosphere where the rules of evidence would be relaxed. As a result of the findings, the Small Claims Courts Act, 1984 was passed.

In 2003, the Department of Justice and Constitutional Development, together with the Cape Law Society and the Swiss Agency for Development and Co-operation, convened a conference in Cape Town to which key stakeholders were invited to review Small Claims Courts.

Although there was general consensus amongst conference delegates for Small Claims Courts to be retained, delegates felt that these courts were not functioning at an optimal level.

They identified a number of shortcomings which were accordingly considered. The National Action Plan adopted at the 2003 conference identified the following ‘key result areas’ for transformation:

• The amendment of the Small Claims Courts Act, 1984 to align it with the Constitution of the Republic of South Africa, 1996, and any other legislation that has effect on the operation of the Small Claims Courts. (Progress: This is receiving attention and is currently work in progress.)

• Proper training for Commissioners and court officials. (Progress: This is receiving continuous attention.)

• The development of a manual/guide for the training of Commissioners and court officials. (Progress: Guidelines for Commissioners and Clerks of the Small Claims Courts were developed and this document is the reviewed and updated version.)

• The development of an all-inclusive public education and communication strategy. (Progress: Continuous communication is dealt with in line with the DOJ&CD communication strategies that were developed.)

• The decentralisation of Small Claims Courts to rural and peri-urban areas. (Progress: A Policy was adopted to focus on the rural and peri-urban areas whenever new or additional places of sitting of Small Claims Courts were considered. As a result, there is now a total of 415 Small Claims Courts, throughout the country, with at least one Small Claims Court in each of the magisterial districts.)

• The appointment of a National Steering Committee to co-ordinate, manage and facilitate the re-engineering of the Courts. (Progress: A National Steering Committee was established, under the Chairpersonship of the Deputy Minister of Justice and Constitutional Development, which dealt with the guiding and monitoring of the activities mentioned above, as part of the financial and technical assistance provided by the Swiss Agency for Development and Co-operation.) 6 GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS

The National Steering Committee focused in particular on training and it is against this background that Guidelines for Commissioners and Clerks of the Small Claims Courts were developed.

To assist more persons, the monetary jurisdiction of the Small Claims Courts were increased from R15 000.00 to R20 000.00 with effect from 1 April 2019.

This increase in the monetary jurisdiction follows previous increases over the years:

20/09/1985 (The first seven Small Claims R1 000.00 Courts in the country were proclaimed on this date) 15/09/1995 R3 000.00 1/04/2004 R7 000.00 1/11/2010 R12 000.00 1/04/2014 R15 000.00 GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS 7

SMALL CLAIMS COURT TERMS AND DEFINITIONS

Unless the context indicates otherwise, the following terms as used in this guide have the meanings reflected below:

Abandonment This relates to the situation where a party abandons a portion of their claim or counterclaim to bring the claim within the jurisdiction of the Small Claims Court. Where the portion is abandoned, the amount cannot be claimed again.

Absolution from the instance This relates to the situation where if either the plaintiff or the defendant fails to prove his/her case, the Commissioner may grant a judgment of absolution from the instance.

Act The Small Claims Courts Act, 1984 (Act 61 of 1984).

Advisory Board A body, consisting of appointed members of the public, legal representatives, officials of the Department and magistrates, established, for a magisterial district or area, in terms of section 25(1)(d) of the Act to advise the Minister on the functioning of the Small Claims Court.

Affidavit A written statement made under oath or upon affirmation before a Commissioner of Oaths.

Cause of action A set of facts that, if proven by the party claiming, would entitle that party to be awarded a remedy by a court of law.

Claim Means the redress, such as the amount of compensation or damages, which the plaintiff is seeking from the defendant.

Clerk Means a clerk of the court appointed in terms of section 11 of the Act (and includes an assistant clerk of the court so appointed) to attend to the administration of the Small Claims Court.

Commissioner A Presiding Officer in a Small Claims Court.

Contempt of court When a person willfully insults a Commissioner during the session of his/her court, or a clerk or messenger or other officer present at that session, or willfully interrupts the proceedings of a court or otherwise misbehaves himself/herself in the place where the session of a court is held.

Counterclaim A claim the defendant may have against the plaintiff in reaction to the main claim.

Damages Monetary loss suffered by either party. 8 GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS

Debtor A person who owes another person or entity money.

Default judgment A binding judgment made by the court in favour of either party based on some failure to take action by the other party.

Defendant The person against whom a claim is made. Deliver Means to file documentation with the clerk of the court and serve a copy on the opposite party and delivery and delivered and delivering have a corresponding meaning (see also below the definition of Service).

Ejectment/Eviction The legal process of removing someone from immovable property.

Execution The enforcement of a judgment.

Incidental jurisdiction In terms of section 17 of the Act the following indirect matters do not influence the court’s jurisdiction to hear actions:

(a) If a claim is instituted for the balance of an account which falls within the court’s jurisdiction2 (i.e. less than R20 000), the court will still have jurisdiction even though the account relates to items and transactions which in total, exceed the jurisdiction of the court (i.e. more than R20 000). The amount claimed must, however, be R20 000 or less.

(b) Where the claim does not exceed the R20 000 jurisdiction limit the court is not deprived of its power to try the case merely because it is necessary for the court to, in order to reach a decision, give a finding over a matter which falls outside its jurisdiction.

(c) In order to determine whether a claim falls within the jurisdiction of a court the claim for interest on the capital amount claimed will not be taken into consideration.

Judgment/Order A binding decision made by a Commissioner.

Judgment creditor A person in whose favour a judgment is granted.

Judgment debtor A person against whom a judgment is granted.

Jurisdiction The authority of the court to hear and decide claims.

Jurisdictional area The area of jurisdiction of a court shall be the area or district for which it was established.

Jurisdictional limit The maximum amount that can be awarded by a Small Claims Court in respect of a claim (currently R20 000).2

2 R20 000 as from 1 April 2019 CHAPTER 1 9

Means a duly registered company or close cooperation. company registered a duly Means mail giving notice of by hand or registered delivered letter, formal A the defendant should the claim against proceedings intention to institute not be met. plaintiff involved in the lawsuit. and the defendant The who institutes the claim. person The A document filed with the court proving that a party has been of ie return service by the properly with copies of papers, presented the court by a plaintiff. sheriff or an affidavit in writing by the parties in court presented down information to take Means is mainly limited to the writing of but such recording or electronically, of by the Commissioner and the judgement/order the court appearances (The account of proceedings. the a word-by-word entail not does and register in the relevant will be recorded other documents and information by the clerk ofkept the court.) with the rules document to another person in accordance a Presenting to the defendant the of and explaining by the sheriff or a party the court thereof. urgency themselves with or without the between the parties An agreement or fully brings the dispute involvement of which partially a Commissioner to an end. documentation deliver court to tasked Minister the appointed by person A orders. court and to execute processes to answer claims in court defendant to appear notice informing the A instituted against him/her. and agreement an under fixed not is dispute in amount the where claim A an assessment by the court. requires to testify on behalf court person who is called to of A either party. GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES Juristic person Summons Letter of demand Letter Parties Plaintiff of service Proof Record Service Settlement Sheriff (including the Deputy Sheriff) claim Unliquidated Witness

5 may institute person may institute natural it was held that the Small Small the held that it was 606 (D) (4) SA 1999 The Minister also appoints the also appoints the Minister The 4 The proceedings in the Small Claims Court are are in the Small Claims Court proceedings The The process in the Small Claims Court is meant to be an easier and and an easier be to meant is Claims Court the Small in process The GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES and both a natural or juristic person may become a party to an action as to an action as a party or juristic person may become and both a natural 3 The Rules provide that the Minister may establish an Advisory Board for a district or for a district or Advisory Board the Minister may establish an that provide Rules The area. A member of an Advisory Board holds office at the discretion of the Minister. chairperson and vice-chairperson of the said board. Ifand vice- the chairperson ofand vice-chairperson chairperson said board. the the members present. a chairperson is to be appointed from not available, chairperson are The inclusion of lay persons from the community is to be encouraged as they make valuable valuable make they as ofinclusion encouraged be to is community the The from persons lay the concerns of large. at the public inputs regarding The Advisory Boards consist of members who are experts nominated from the local the local from nominated of consist experts Advisory Boards members who are The appointed by the Minister. community and who are Small Claims Courts Act is based on certain provisions of the Magistrate’s Courts Act and and Act Courts of provisions the Magistrate’s Act is based on certain Small Claims Courts

an action as plaintiff a defendant. Who may institute a claim? In terms of section 7 only ofa Act, the not recorded. The Commissioner is only obliged to record the court order made (or cause it to it to cause (or made order court the record to obliged only is Commissioner The recorded. not register in the relevant will be recorded information The order. and to sign the be recorded), the clerk of by kept the court. The Small Claims Court is not a court of record: of record: court a not is Court Claims Small The The nature of claims in the Small Claims Court: A person Minister of time to time by the Justice and from jurisdictional limit which is determined can file a claim within the current limit is R20 000. the Currently Services. Correctional The procedure is informal: procedure The less expensive way to resolve The disputes. procedure and rules are simplified to enable the with ease. the proceedings litigant to understand and conduct and a inquisitorially and a proceed is obliged to the Commissioner Court In a Small Claims rules of is not bound by the ordinary evidence. Commissioner The differences. important are there of used as a guide – however, can be the provisions the latter The Small Claims Court is a court where claims are resolved speedily, inexpensively and and inexpensively speedily, resolved are claims where court is a Claims Court Small The legal representation. conduct their own cases without Litigants informally. ROLE-PLAYERS IN THE SMALL CLAIMS COURTS THE SMALL IN ROLE-PLAYERS Advisory Boards 2.1.1 THE FORM AND NATURE OF SMALL CLAIMS COURTS CLAIMS OF SMALL AND NATURE THE FORM Raman v Barlow Motor Investments (Pty) Ltd t/a Natal Motor Industries Prospecton and Others and Prospecton Motor Industries Natal Investments (Pty) Ltd t/a v Barlow Motor Raman Claims Court does have jurisdiction to entertain a counterclaim by a juristic person having been brought before the court as defendant. the court before by a juristic person having been brought a counterclaim does have jurisdiction to entertain Claims Court 2(1). Rule 2(1)(c). Rule

2.1 2. 3 In 1.6 1.5 1.7 1.4 1.3 1.2 1.1 1. CHAPTER 1 CHAPTER 4 5 10

CHAPTER 1 CHAPTER 1 11 The Minister or the Minister or the The 6 A magistrate can also can also magistrate A 7 8

Presiding Officers inPresiding the Small ClaimsCourt are calledCommissioners. Commissioners are authorised to make a finding regarding a dispute. regarding a finding authorised to make are Commissioners instance, the from absolution or order defendant the plaintiff, the judgment for can grant They his/her case or failed to do so. has proved in so far as either party Commissioners can hold a financial inquiry relating to the debtor’s ability to pay in instalments instalments in pay to ability debtor’s the to relating inquiry financial a hold can Commissioners or otherwise. In practice the Minister will act on the advice of the Advisory Board. The Minister may dissolve may dissolve Minister The on the advice of Minister will act the Board. Advisory In practice the of the magistrate or the district is inactive, Board Advisory an Where any time. at the board Advisory of to the revival that with regard Department the may approach party any interested and of will mainly entail the appointment (which Advisory Board Board to the new persons Commissioners.) new or additional appointment the ofas variety such a on Minister the advise may Board Advisory matters The of and utilisation of as persons the recruitment persons as Commissioners; suitable may be necessary; suitable other persons as and such interpreters clerks, Commissioners, court and office accommodation; the times for the holding of court; and any other matter of functioning for the proper which may be necessary the court. Deputy Minister appoints a Commissioner for the Small Claims Court. Deputy Minister appoints a Commissioner be appointed as The a qualificationsCommissioner. for appointment asCommissioner are set out in section 9(1) and (2) of An the Act. officer in the employ of a national or provincial Commissioner Any of shall not be appointed as a Commissioner. department the State appointed in respect of a specific Small ClaimsCourt shall be deemed to beappointed for specific province. established in that any such court If a Commissioner is unable due to his/her absence or incapacity to finalise a hearing, the should not Commissioners another Commissioner. de novo before case must be heard clients relatives, over cases of personally known to them (friends, preside persons who are of the possibility of exists. on the part the Commissioner etc.) or cases where prejudice a plaintiff defendant is or to his/her notice that it comes clerk of must where The the court of is placed on the roll another the matter that ensure personally known to the Commissioner Commissioner. 2.2.1 Functions of the Commissioners Functions 2.3.1 2.3.2 2.3.3 2.1.2 2.1.3 2.2.2 2.2.3 Section 8. Sections 9(1)(a) and (1A). Section 34(a)-(b). GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 2.2 Commissioners 2.3 6 7 8 around which the courts function. The Advisory Board has has Board Advisory The function. the courts which around GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES Advise the public in connection and other general trial dates rescissions, the jurisdiction of the court, instituting a claim, with any enquiries with regard in writing); must be answered or letters enquiries enquiries (written to the procedures for used in cases; documents and process Receive ofIssue summons and documents process; trial dates; Fix rolls; court Arrange and ofAdvisory Board, with the co-operation the for Commissioners the duty roster Arrange the arrangements; regarding inform the said Commissioners moves out of the jurisdiction in writing if resigns, a Commissioner Inform the Director-General of or dies; the court to in court; is attended daily roll the that Ensure of the filing and storage documents; for court provision Make same; and process the Commissioner authorised by Issue warrants purposes; for execution Court Magistrate’s to the relevant matters Transfer copies of if and defendants with the plaintiffs so requested; documents of process, Provide received back. it is that Commissioner and ensure to the file the court Provide 53(1) of Rule of the Uniform Rules of ofAssist with the review judgments/ orders the court. by the sheriff) a copy of the applicant is to deliver (preferably that stipulates the Notice Court including the presiding thereby, of affected on all parties Motion of proceedings the Review clerk of must The the Small Claims Court and clerk ofCommissioner the Small Claims Court. enter of upon receipt a Notice of of Motion for Review the judgment/order, immediately, and inform the Reviews for Small Claims Court Register thereof in the Review the particulars copy scanned a with it supply and Motion of Notice the of Department the of Office National file The reasons. written Commissioner’s presiding the and file court the of as well as thereof, and paginated original indexed The and a copy prepared. and paginated must be indexed Court. ofrelevant High Registrar to the the file must then be delivered • • • • • • • • • • • • • • Clerk of the court of clerk is the co-ordinator The the court in important role to play, but the clerk of the court has the most important task in the day to day to day task in the day the clerk of but the most important has the court to play, role in important and the clerk of is ofAdvisory Board the court the between Co-operation functioning of the court. duties of set out in rule 3 ofThe of the clerk are Rules. the the court the utmost importance. of the clerk ofFunctions the court:

2.4

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CHAPTER 1 CHAPTER 1 13

9

In terms of section 11 of the Act, the magistrate of the district, in which the seat of the seat which in a Small of magistrate the district, the In terms of11 ofsection Act, the interpreters of clerks may appoint as many the Small Claims Court, is situated, Claims Court (In view of budgetary constraints as may be necessary. court for that and legal assistants employed.) not currently legal assistants are of the functions and obliges the clerk of 5(3) empowers a legal to exercise Rule the court in a Commissioner assist for example, would, This such is not employed. assistant where arises in practice. often that a situation litigants for advice, to refer knowing to whom jurisdiction the within falls which action any to regard in person any advise to there is clerk The of of the process also assist with the drafting clerk may court. The of the court. Legal Legal Aid SA Legal currently it, for qualify has who those to 64 representation local legal providing to offices, addition In 64 Office. satelliteNational offices, 6 provincial offices and 1 anyone can use (0800 110 110) as Advice Line which Aid Legal also has a toll-free Aid SA ). Me” service (079 835 7179 Call well as a “Please Appropriately experienced lawyers employed if they qualify. on application, for Small Claims Courts Commissioners by Legal Aid SA can be appointed as Other court officers officers Other court 2.5.1 2.5.2 2.5.3 Sheriffs referred court the of process the of execution and service the for responsible official the is sheriff The Court In terms of the sheriff appointed for the Magistrate’s section 11(2) ofto in rule 4(1). Act, the of part as sheriff must act in that of of the district falling within the the Small Claims Court a district, ofarea jurisdiction of court. that Aid Legal SA 2.7.1 2.7.2 Rule 5 Rule GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 9 2.5 2.7 2.6 of cause of action Jurisdiction in respect Jurisdiction in respect JURISDICTION

10 GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES persons 11 Jurisdiction in respect ofJurisdiction in respect Bodies such as partnerships or stokvels can therefore not appear as a plaintiff in the Small as a plaintiff not appear in the Small can therefore or stokvels Bodies such as partnerships is no legal distinction between a there (Generally, associations. as these are Claims Court sole proprietor and the name of the afirm soleTherefore, that proprietor he/she conducts. may sue in his/her own name or the name of his/her firm as a plaintiff. It is important for Lack of jurisdiction is a ground for review. Lack of for review. ground jurisdiction is a which is not vested with the necessary jurisdiction, institution ofThe an action in a court, to the dismissal of litigant who wishes to proceed will lead the action and the prospective the beginning in a competent the claim again from with the case will have to institute court. to determine litigants in order clerk of must assist prospective The the Small Claims Court of is to be instituted. has jurisdiction in respect the action that which court a has jurisdiction to hear court his/her It is the duty of to ensure every Commissioner matter before it. In some instances a presiding officer has a duty toraise jurisdiction out of his/her own accord. the issue of Jurisdictional limits are an important feature of Small Claims Courts and must be adhered of and must be adhered Small Claims Courts feature an important Jurisdictional limits are to by both litigants and Commissioners. or juristic but both a natural may institute an action as a plaintiff, person Only a natural is not a juristic person Therefore, an action as a defendant. to become a party person may counterclaim a file may but plaintiff, a as Court Claims Small a in claim a institute to allowed as a defendant. • • • • • Jurisdiction in respect ofJurisdiction in respect persons Jurisdiction refers to the authority of the court to hear and decide cases. Any reference in this guide in this guide Any reference to the authority ofand decide cases. to hear Jurisdiction refers the court the power of of includes to the jurisdiction and adjudicate to hear court Court the the Small Claims parties. legal disputes between 1.1.2 1.1.1 Note the general principle of Actor sequitur forum rei, which means the plaintiff which means follows the defendant to his/her forum. principle ofActor sequitur forum rei, Note the general Section 7(1).

JURISDICTION 11 10 1.1 1. CHAPTER 2 CHAPTER 14

CHAPTER 12 CHAPTER 12

16 15

In other words, the action relates relates action the words, other In 15 are situated or where or where situated are premises its business 14 The Commissioner should, however, inform the defendant ofhis/her right however, should, Commissioner The 13 12 registered office office registered it has its where plaintiffa company or a close corporation may sue The or principal place of. business local the at church company or unincorporated syndicate, a such as ofcase the In body, a or place ofoffice business of such body. of has jurisdiction in respect if the defendant court the cause ofThe entirely action arose or whether it will be irrelevant (In such an instance, within the jurisdiction of the court. of on business within the area jurisdiction of or carries works not the defendant resides, the court.) to the immovable property in question and not to some other immovable property. resides, works or carries on or carries on works defendant resides, the plaintiff the defendant where may sue The business. where plaintiffa partnership may sue The one of the partners resides within the jurisdiction of within the jurisdiction one of resides the court. the partners has jurisdiction in respect of respect in jurisdiction has ofowner the property. the The court further has jurisdiction in respect of has jurisdiction in respect and knowingly a defendant who appears further court The knowingly subjects the defendant In doing so, jurisdiction. does not object to the court’s himself/herself not have had which would otherwise jurisdiction of to the the court, jurisdiction. a or title) sectional or stand house, a as (such property immovable regarding actions In is situated the immovable property in whose jurisdiction the court bond on such property, The address of plaintiff’s home or workplace is irrelevant for purposes of of or workplace is irrelevant home determining address plaintiff’s The jurisdiction. and determine whether the defendant objects or whether he/she is prepared to submit to to submit objects or whether he/she is prepared and determine whether the defendant jurisdiction. the court’s

• • • • • • • • Clerks to establish this, so that they do not turn such people away. Clerks will need to satisfy to satisfy will need Clerks such people away. they do not turn that so this, to establish Clerks legal entity.) not some other and sole proprietorship it is indeed a that themselves the Small Claims under which lists the circumstances 1984, Act, Claims Courts Small The ofrespect have jurisdiction in of will 14): persons (section area Court a specific 1.1.3 Section 14(1)(d). Section 14(1)(e). entertain to jurisdiction territorial have not does Court Claims Small specific a that litigant a advise only can Court Claims Small the of Clerk A does not have the court even where be enrolled the matter that a litigant insists where the matter to enrol clerk cannot refuse The a matter. will have a court that sub-section stipulates This because of ofAct. provisions the jurisdiction, Section 14(1)(e) of the Small Claims Courts no objection to the jurisdiction of which will a summons and takes being served with the court after any defendant appears jurisdiction where include territorial jurisdiction. clerk the the matter, in jurisdiction territorial having not court the despite issued be must summons a insists that plaintiffthe therefore Where service. after the matter and enrol to issue the summons if was compliance with the other requirements must proceed there The clerk should then address a formal letter to the Commissioner which should be filed in the court file, informing the Commissioner that the the plaintiff insisted that but that the matter does not have territorial jurisdiction to hear the court the litigant/plaintiff was informed that summons be issued. It is up to the Commissioner to a make ruling whether the court has whether jurisdiction, the defendant objects the Where or finding not. is against the plaintiff and the court finds that it does not have territorial jurisdiction, the plaintiff may then pursue an application in terms to another court. of the matter Act to transfer Section 13 of the Small Claims Courts Section 14(1)(f). jurisdiction. or carry on business within the court’s work, the owner does not need to reside, that means This GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 12 13 14 15 16

18 17 GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES

19 A party to the action may also, with the consent of all the parties, or upon the application upon the application or of with the consent all the parties, also, to the action may party A of one of the parties who satisfiesthe court thatthe hearing of the action in that court to by the court be transferred or inconvenience to him/her, in undue expense may result . any other court if that meaning an action is proceedings, has jurisdiction over incidental also court The instituted in a specific court, the court may hear facts and evidence inrelation to other to the case. related matters In the Small Claims Court ejectment claims are limited to property occupied for business occupied for business limited to property ejectment claims are In the Small Claims Court purposes only. of lease a in breach a plaintiff rent to pay failed defendant who eject a may example, For of occupied by the defendant for commercial in respect land or premises agreement purposes. Ejectment claims limited to land/premises occupied for business purposes Ejectment claims limited to land/premises • • • Actions for the delivery or transfer ofActions for the delivery or transfer movable or immovable property of a claim is instituted for the delivery or transfer movable or where actions are These immovable property not exceeding the current monetary jurisdiction. If the clerk finds that claim for to put in a the party the clerk must advise lost or destroyed, has been the property damages. Actions for ejectment Actions for ejectment has jurisdiction in actions for ejectment against the occupier of land Small Claims Court The - and not residential unlawfully occupied and used for commercial which are or premises of area jurisdiction. within the court’s situated which are purposes, has jurisdiction if the court the is also in dispute, the right to occupation If in such an action, monetary jurisdiction. value of the current clear right to the occupier does not exceed that Actions for the delivery or transfer of any property, movable or immovable; ofActions for the delivery or transfer any property, of occupier ofActions for ejectment against the within the area or land any premises jurisdiction of the court; ofActions based on or arising out bond; a liquid document or a mortgage Actions based on or arising out of and a 2005, Act, Credit National credit agreement as defined in section 1 the of of in respect any cause ofActions for counterclaims mentioned above. action • • • • • Jurisdiction in respect ofJurisdiction in respect of causes action 1.2.1 1.2.2 Section 13. Ltd v Bester and Others 1987 (1) SA Corporation Credit (Standard is concluded. it until the matter has jurisdiction it retains Once the court 819). 812(W) at advise of as a matter course, clerk should therefore, The the commencement of at might not be possible for the clerk ascertain the action. This the plaintiff to claim a monetary amount in damages as an alternative.

The Small Claims Court has jurisdiction in respect of has jurisdiction in respect the following causes of Small Claims Court action: The 1.2 18 19 17 16

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. 20 bills of and cheques; exchange unconditional bonds and acknowledgment of debt. promissory notes; promissory A plaintiff may, however, not eject a defendant who failed to pay rent in breach of a lease breach in rent who failed to pay a defendant not eject however, plaintiff may, A of for residential by the defendant occupied in respect or premises land agreement from eject a defendant to cannot be used Claims Court the Small Therefore purposes. in which he/she resides. premises of meaning “unlawful occupier”The terms of in Act the PIE an action for the not have jurisdiction to hear does Court the Small Claims reason The land or premises from ejectment of is because eviction by a court tenant a residential and of from Illegal Eviction in terms of Prevention the regulated is unlawfully occupied ofAct,1998 Unlawful Occupation Land The Small Claims Court is not a court for the purposes of for Act is not a court the PIE Small Claims Court The Magistrate’s the or Court High the to refers Act PIE the in “court” term the of definition The and the High Court Only the Magistrate’s the Small Claims Court. and excludes Court in terms ofAct. to institute proceedings the PIE may be approached Court When the plaintiff ejectment of needs to institute action for a defendant who unlawfully the he/she may only approach purposes, residential for occupies land or premises for is not a court the Small Claims Court Therefore or the High Court. Court Magistrate’s the purposes ofAct. the PIE in if not unknown, rare, exceedingly are business premises Actions for ejectment from is to a Commissioner claim, when faced with such a However, the Small Claims Court. its monetary within is premises business for ejectment from a claim whether determine in the the similar provision can be obtained from In such instances guidance jurisdiction. is to be applied. Act and how that Courts Magistrate’s in the PIE Act includes only those persons who occupy “unlawful occupier” concept only those persons who occupy Act includes The in the PIE those who occupy premises purposes and excludes unlawfully for residential premises has jurisdiction in Small Claims Court The purposes. or land unlawfully for business from occupied for business purposes as ejectment premises actions for ejectment from ofAct. the application the PIE from is excluded such premises • • The following are examples of examples liquid documents: following are The • • • Actions based on liquid documents and mortgage bonds Actions based on liquid documents and mortgage A liquid document is a document that in itself renders proof that a person unconditionally acknowledges, under his/her signature, that he/she owes a fixed on in an action based by section 15(c) ofAct to a Small Claims Court jurisdiction granted the amount of money. The jurisdiction. monetary current the to limited is bond a or document liquid a from resulting or 1.2.3 Act No 19 of 1998. GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 20

21 GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES not responded to that notice; or notice; to that not responded and proposals; provider’s the credit to the notice by rejecting responded in the case of proceedings to which sections 127, 129 or 131 apply, the procedures procedures the apply, 129 or 131 case ofin the to which sections 127, proceedings those sections have been complied with; by required there is no matter arising under that that Tribunal, could credit result in agreement, an order affecting and the issues to pending be determined before by the the and court; - the court has not approached provider the credit that in the case of an instalment agreement, secured loan, or lease, the consumer has not has not the consumer or lease, loan, secured in the case of agreement, an instalment section in contemplated as provider credit the to property relevant the surrendered 127.” at at least 10 business days have elapsed since the credit provider delivered a notice as the case may or section 129(1), in section 86(9), to the consumer as contemplated be; the consumer has— in the case of 129(1), in section contemplated a notice (i) (ii) Despite any provision of law or contract to the contrary, in any proceedings commenced commenced in any proceedings ofDespite any provision to the contrary, law or contract may court the Act applies, of to which this in respect agreement in a court a credit - only if that is satisfied the court determine the matter (a) (b) (c) (c) Actions based on credit agreements agreements based on credit Actions agreement a credit from in actions based on or resulting jurisdiction Claims Court’s Small The Subject to subsection (2), a credit provider may approach the court for an order to enforce enforce to order an for court the approach may provider credit a (2), subsection to Subject default in been has and default in is consumer the time, that at if, only agreement credit a 20 business days and— least for at agreement credit under that (a) (b) as defined in the National Credit Act (NCA), is limited to claims where the value of the goods goods the of value the where claims to limited is (NCA), Act Credit National the in defined as monetary jurisdiction. than the current more in dispute is not value of of the time the market to is the goods at the institution of referred value the The claim. a court before be brought to out of arising agreement for such a matter a credit In order can be heard. the matter complied with before have to be that procedures certain are there of are 130 of section 129 and section crucial importance. the NCA In this regard There has to be a notice in terms of section 129 of the NCA, which has to be served on the defendant notice in terms of has to be a which has to be served on the defendant section 129 ofThere the NCA, of the letter has to be a period of is issued in the demand 10 days before least and then there at Small Claims Court. Without the proof of delivery of of the notice in terms of the letter demand section 129 of the NCA, of of provisions the satisfied is it once only matter the determine may Court The issued. be cannot section 130(3) of the NCA: The relevant provisions of section 130(1) of the NCA read as follows: of provisions read 130(1) of section relevant the NCA The “(3) 1.2.4 “(1)

An agreement constitutes a credit agreement if it is a credit facility, a credit transaction, a credit guarantee or any combination ofany combination or guarantee the credit a transaction, a credit iffacility, agreement it is a credit credit a constitutes An agreement aforementioned.

21 18

CHAPTER 12 CHAPTER 12 19

surrendered property to the credit provider, and before that property has has property that before and provider, credit the to property surrendered been sold; agreed to a proposal made in terms of section ofgood faith in fulfilment agreement; that 129(1)(a) and acted in 129(1)(a); or in section plan as contemplated agreed complied with an brought the payments under in section 129(1)(a). contemplated the credit agreement up to date, as adjourn the matter before it, pending or Tribunal; the before a determination of the proceedings to matter the refer and it, before proceedings the adjourn to Tribunal the order or for determination; the court adjourn the matter, proceedings; pending a an make thereafter and final court, the to directly report to counsellor debt the order determination of the 85(b); or in section contemplated order debt review to which the consumer is agreement credit if is the only agreement the credit proceedings, the debt counsellor to discontinue the debt review order a party, in section 85(b); contemplated an order and make adjourn the matter before it; and before adjourn the matter must provider out the steps the credit setting order an appropriate make may be resumed; the matter complete before during the time that the matter was before a debt counsellor, alternative dispute dispute alternative counsellor, debt a before was matter the that time the during or jurisdiction; or the ombud with court consumer agent, resolution having - despite the consumer (aa) (bb) (cc) (dd) the credit agreement is either suspended or subject to a debt re-arrangement order order re-arrangement debt a to subject or suspended either is agreement credit the the agreement, or order that with complied has consumer the and agreement, or must dismiss the matter.” court there is a matter pending before the Tribunal, as contemplated there in is subsection a pending (3)(b), matter before Tribunal, the may - the court (i) (ii) the credit agreement is subject to a pending debt review in terms of Part D of in terms of debt review is subject to a pending agreement Part the credit may - the court Chapter 4, (i) (ii) (iii) the credit agreement was reckless as described in section 80, the court must make section 83; in contemplated an order the credit provider has not complied with contemplated the in relevant subsection provisions (3)(a), or of has this approached Act, the as court must - in subsection (3)(c) the court contemplated in circumstances (i) (ii) (i) (ii) (e) (d) (c) (b) In any proceedings contemplated in this section, if - determines that the court in this section, contemplated In any proceedings (a) (4) GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES A 24 22 23 GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES A party, whose claim exceeds the prescribed limit, is allowed to abandon that part of part that the abandon to allowed is limit, prescribed the exceeds claim whose party, A within the jurisdiction of to bring the claim in order the limit the court. exceeds claim that Small Claims Courts are prohibited from entertaining actions instituted against the State. entertaining from prohibited are Small Claims Courts in a Small In terms of no action shall be instituted against the State section 14(2) ofAct, the of may not be department the State or provincial a national that means This Claims Court. against summonsing the prohibition The in the Small Claims Court. summoned to appear also includes all the employees of if action is against them in State the State the proposed capacity. their official councils do not for the purpose of such as universities and research institutions”, “Semi-state of and may be sued in the Small Claims Courts. form part the State section 14(2) ofAct, the party may explicitly abandon a part of the claim or counterclaim in the summons or statement of statement or summons in the a part abandon may explicitly counterclaim claim or the party abandons he/she that express specifically must party A thereafter. time any at or ofdefence, of part that claim in the summons or counterclaim. the the from is owed to the other party he/she admits that may also deduct an amount party A to bring it within the jurisdiction of in order the court. claim, Claims against a national or provincial department of the State (although Section 14(2) of (although Section 14(2) department State the or provincial national Claims against a the against action institute cannot you that stipulates Act ofCourt Claims Small the Government Provincial and National to refers only that Court, Claims Small the in “State” also includes all the the State against summonsing prohibition The Departments. The capacity. official their in them against is action proposed the if State the of employees Municipalities such as Government, Local that however, clear, are case law and authorities “Semi State including sued in the Small Claims Court, may be Council’s and Metropolitan and all Universities); CSIR, SAA, SABC, Telkom, as Eskom, Institutions” such of the cession or the transfer Claims based on rights; wrongful malicious prosecution, ofClaims for damages in respect defamation, of to marry; seduction and breach promise arrest, wrongful imprisonment, Claims for the dissolution of a marriage; of wills; interpretation Claims concerning the validity and of ofClaims concerning the status a person in respect his/her mental capacity; damages; for claim alternative an without sought is performance specific which in Claims silence; Perpetual of legislation. Validity Claims exceeding the current monetary jurisdiction; current the Claims exceeding • • • • • • • • • Claims excluded from the jurisdiction of the Small Claims Court - of the jurisdiction from Court the Small Claims Claims excluded • ABANDONMENT OF PORTIONS OF THE CLAIM OF OF PORTIONS ABANDONMENT 2.1 ACTIONS AGAINST THE STATE AGAINST ACTIONS 3.1 3.2 3.3

2.2 Section 18. Section 19. Section 14(2).

2. 23 24 22 3. 20

CHAPTER 12 CHAPTER 12

21 A Commissioner would would Commissioner A 25 applies, that notice in terms notice in terms that applies, 26

Check jurisdiction. is allowed. no legal representation that Inform parties Is the person instituting the action a natural person? a natural Is the person instituting the action the claim is not a split claim. sure Make the monetary the claim does not exceed sure Make limit of R20 000. has whether court determine If a labour matter, jurisdiction.

Limitations: However, a a However, 27 of section 3(2) of the said Act was given to the municipality in writing, within 6 months ofof the 3(2) of section given to the municipality in writing, Act was said the The of to institute legal proceedings. the intention upon which the debt became due, date on the municipal manager. the notice be served in section 4(1)(b) that stipulates Act further of service was proper the summons there that will also have to ensure Commissioner The fully on court the to address opportunity and allow the municipality the on the municipality itselfwhether it deems within the ambit of to fall definition of the not. or State” “the This also applies to statutory boards and bodies, such as state entities. such as state and bodies, boards to statutory also applies This problematic. is however as a municipality, such government, Local have to ensure, where the municipality is cited as a defendant and because the Institution of is cited as a defendant the municipality where have to ensure, 2002 Act, of Organs State Against Certain Proceedings Legal it was held that public corporations such as Sasol, Iscor the Land and Iscor the Land and such as Sasol, public corporations it was held that v Eskom Council Metropolitan Transitional Johannesburg Greater Only a natural person may may person Only a natural institute an action in the Small Claims Court. juristic person may institute a juristic person may institute a as a defendant. counterclaim from distinct person is natural A a juristic person who is a legal a entity such as a company, body. or statutory corporation 3.4 2009 (SA) 437 (SCA) at par 11 the following was held: par 11 the at Development Bank ofAfrica 2009 (SA) 437 (SCA) Agricultural South Holeni v Land and In terms of section 7 of the Act the plaintiff may sue a person in a or particular is Small employed Claims in Court the if relevant area the for person which resides, the carries court on is business established. In terms of section 2 of Section 239 of of“organ “any of department the as state” definesConstitution an or state the “person” Act in includes any a “municipal Interpretation council”. Act, 33 of 1957, the word of or local sphere government”. provincial in the national, administration “department” in “arefers Section onlydefining national toof or 4A department”20 provincial of , and the Act, however, Liability State 1957, 40 of of “organ Act, Organs against 2002 Certain definesState an Institution ofThe does Proceedings not Legal include local municipalities. Section 151 of the 151 of in section municipality contemplated the Constitution”. department” and “a or provincial national of as “any state” of to municipalities as the “local sphere government”. refers Constitution “The State as a concept does not have a universal meaning. Its precise meaning always depends on the context within which it is used. within which it is used. always depends on the context meaning Its precise “The as a concept does not have a universal meaning. State to considerations on practical case, in any particular and have relied, characteristics it any inherent to accord consistently refused have Courts par 16 and 17: and at has been maintained”, no consistency in meaning of In a plethora legislation, determine its scope. “The definition of‘organ ofState’ in inState’ of ‘organ the of definition Constitution the mightpromulgated, was beAct important[Prescription] the inwhen respect that, mind ofin borne be also constitutionalshould It andpurposes… related administrativeother law matters and for a mind in had time, that at legislature, the that contended be hardly can It future. the into decades two than more was Constitution ofthe 239 s Constitution itself the differentiates any event, In definition. contained in that is presently of meaning what to coincide with broader ‘the State’ between the State and organs of The State. Constitution can therefore not be used as authority for the proposition that ‘the State’ in the Act of so as to include organs should be interpreted State.” Act 40 of 2002. Section 7(1). Agricultural Bank and the SA Mint are not government departments as they are wholly or partly independent from ordinary administrative administrative ordinary independent from wholly or partly as they are not government departments Mint are Bank and the SA Agricultural of as part municipal councils came into existence a restructuring however also held that court The not the State. and therefore departments held further 16 the court At par. level. as a form of regional they operate local government at of and that the constitutional and political order within depends on the context meaning is not used with any consistency and its precise employed in legislation, is extensively “the State” that which it is used. LIMITATIONS GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 4.1 Parties 4. 25 In 26 27 In and the and the 28 . Such claims are normally not part of normally not part the scope ofare Such claims Small the . 29 GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES Claims for compensation arising in terms of Claims for compensation and/or dismissal the unfair practice under the for discrimination or claims for compensation under the LRA regime and Act; Employment Equity of a contract sounding in money. employment and Claims arising from a) b) Claims in respect of unfair labour practices or dismissal regimes and the Employment Employment the and regimes dismissal or practices labour ofunfair respect in Claims Equity Act, 55 of 1998 (EEA): If it was not clear before, the Constitutional Court Employment/ Labour Claims: There are basically two types are of There claims Employment/ arising Labour out Claims: of an employment contract: unfair dismissal cases; cases; unfair labour practice or cases, unfair discrimination unfair dismissal cases automatically • • • • 5.7.2 However, there may be However, circumstances where specific although claims, seeminglyrelated to in the Small Claims Court. and could be heard nature of may be a different labour matters, its jurisdiction matters, labour related cautious to entertain should be So whilst the court a plaintiff may merely As an example, . founded in contract could include monetary claims in terms ofwant to claim a small salary due a contract. Thus the facts of each case should be scrutinized carefully against “forum should also guard court and A the Small Claims Courts. for action in considered where feasible should be shopping”. noted: be should following the contract employment ofan out arising claims with dealing In 5.7.1 Labour matters are regulated by the Basic Conditions of Employment Act, 1997 Claims Court. Attention is specifically drawn to section 157(1) of the LabourRelations Act,which provides that, subject to the Constitution elsewhere of that jurisdiction in respect all matters has exclusive the Labour Court and otherwise, section 173, and except in terms ofAct or in terms of where Court. to be determined by the Labour this any other law are this Act provides Act and cannot thus has no jurisdiction under the Labour Relations Small Claims Court A hear: Labour Relations Act, 1995 Act, Labour Relations 5.4 5.5 5.6 5.7 LABOUR MATTERS LABOUR MATTERS 5.1 Splitting ofSplitting is not permissible claims cause of– based on one and the same claim - may not A between the same parties action and the Small exceeds that the full amount to recover in order smaller claims, several be divided into jurisdiction. Claims Court the cause of to examine is why it is important action. That 5.2 5.3 Act 75 of 1997. Act 66 of 1995.

28 29 5. 4.2 22

CHAPTER 12 CHAPTER 12

23

33 make it quite clear that despite the fact that 31 and Gcaba 2 and Gcaba 30 34 By extension and having regard to section 15(e) of the Small Claims Courts to section 15(e) ofSmall Claims Courts the having regard and By extension 32 they may arise from an employment contract, claims which are framed in terms of framed the which are claims contract, an employment arise from they may by the Labour solely judicable are of the LRA, procedure dispute resolution statutory Labour Court jurisdiction with the does not enjoy concurrent High Court The Court. to do not have jurisdiction civil courts So the ordinary such claims. in connection with and practices unfair dismissal or unfair labour for claims for determine compensation these types of SCC. in the accordingly cannot be heard dispute Claims arising out of an employment contract and sounding in money: The outcome arising including those of all other matters, that the Chirwa and Gcaba cases is both In terms of section judiciable in the High Court. are ofunder a contract employment, 77(3) of the Basic Conditions and determine any matter to hear jurisdiction with the civil courts has concurrent of Employment Act (the of irrespective of whether any basic condition concerning a contract employment, BCEA) the Labour Court for the payment claims that therefore, It appears, constitutes a term of contract. that in terms of wages or emoluments due under an employment contract the of a salary, of the enforcement common law or claims made for a basic condition sounding in the civil before pay would be permissible notice-pay and accrued leave i.e. money. courts. judgments in Chirwa judgments Act and provided that the claims were under R20 000.00, the Small Claims Court Court the Small Claims under R20 000.00, the claims were that Act and provided these matters. would have jurisdiction to entertain No legal representation is allowed in of the or a duly authorised officer happens to be the company who a director by represented Small Claims Court. A juristic person legally qualified. may be Where Where Commissioners are unsure as to whether the representative of a actually juristic a person director is or a prescribed or director its by entity of officer juristic a representation (The theCommissioner. the to proof sufficient onus is on such representative to provide representative.) by a legal representation to distinctly different is duly authorized officer 5.7.3 Exercises Exercises general executive control over and management of the whole, or a significant portion, of significant company; or thea or business whole, andthe of activities management ofand over the control executive general of exercise the in degree material a to participates Regularly of the business and activities ofportion, the company. MONETARY JURISDICTION MONETARY The monetary limit is not specified by the Act, and is left to the Minister to determineto fromtime time by notice in the Government Gazette. As from 1 April 2019 the amount has been set at 7.1 R20 000. 7.2 • Chirwa v Transnet Ltd 2008 (4) SA 367 (CC). 367 (CC). Ltd 2008 (4) SA Transnet Chirwa v Gcaba v Minister of 238 (CC). Safety and Security 2010 (1) SA (LC). 26400 JOL & others [2010] Driving School v Stanford Fourie ofAct Benjamin in his commentary on the Basic Conditions Employment of is succinctly summarised by Paul effect these provisions The of employee in terms by making a claim in either the Small any amount owing to that the BCEA to recover employee may choose (BCEA): “An vol 1 BB1 – 44 African Labour Law, and Benjamin South -Thompson or the Labour Court the High Court Court, the Magistrate’s Claims Court, 39. para at The Companies Act determines that prescribed officers arerequired to perform their functions andof exercise conduct theiras it dutiesapplies to toofficersdirectors. Prescribed will the be subject standard to the same liability provisions as it applies toPrescribed directors. that: is designated, title the office by whatever include every person, officers •

REPRESENTATION GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 30 31 32 33 34 6. 7. 38 Currently the small the small Currently claims system in South Africa is dependent on the goodwill ofand dedication Commissioners. times are Sitting usually scheduled in hours (until late after the evenings) so that can Commissioners fulfill their Small Claims duties without Court with their interference or other legal practices duties. A party to the action may, with the consent of all the the action may, to party A 35 on a principal sum or for costs or on a principal sum or for costs or 40 GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 37 The court to which the matter has been transferred will derive its jurisdiction by jurisdiction by will derive its been transferred has to which the matter court The 36 - 39 alternative relief may be taken into account. relief may be taken alternative In actions in which the sum claimed does not exceed the the does not exceed In actions in which the sum claimed jurisdiction of the and is the balance of the court account, an court may enquire into and hear evidence to items and upon account relates even though that account, the whole the jurisdiction of exceeding transactions the court; the jurisdiction does not exceed the amount claimed Where is not deprived of the court merely jurisdiction of the court, a to arrive at in order because it is necessary for the court, jurisdiction; its beyond matter a upon finding a give to decision, and In determining whether a claim falls within the jurisdiction of a no claim for interest court, If a Commissioner is of the questions of law opinion or of fact, which cannot adequately that or fairly be decided upon, he/she a must stop case before of plaintiff institute a new action in another competent court may then law. The him/her the proceedings. contains difficult or complex JURISDICTION CUMULATIVE in claims different instituting plaintiff a from not prevent does jurisdictional limit monetary The based each If claims, two or more the same defendant(s). one and the same summons against has the same jurisdiction to the court set out in one summons, are of cause action, on a different claim as if upon each adjudicate claim had been the subject of cause of each a separate action. JURISDICTION INCIDENTAL The following matters do not influence the court’s jurisdiction to claims hear COMPLICATED CASES COMPLICATED The Small Claims Court does not have jurisdiction to hear a matter, which exceeds its jurisdiction, its jurisdiction, which exceeds a matter, hear does not have jurisdiction to Claims Court Small The even if have consented thereto. the parties virtue ofvirtue transfer. the • • • parties, or upon the application of one of the parties who satisfies the court that the hearing of hearing the the that court the of satisfies who ofapplication one the upon or parties the parties, to transferred be to him/her, inconvenience or expense undue in result may court in that action another court.

Section 22. Section 13. to action ofthe transfer a requests thereafter and court wrong the in action the starts plaintiff the that is practice in happens sometimes What for transfer. not a ground this is generally however, court; the correct Section 23. Section 17. In terms of section 1(2)(b) of Rate of the 1975 Prescribed Act, Interest (Act 55 No. of 1975) a rate of interest of 10,25 percent per annum is 2019. January 1 as from effective

CONSENT 36 37 38 39 40 35 11. 10.

9.

8. 24

CHAPTER 12 CHAPTER 13 25

The function of the Commissioner is adjudicative or judicial in nature. He/she adjudicates over He/she adjudicates function of or judicial in nature. is adjudicative The the Commissioner small civil disputes between a plaintiff and defendant. In a Small Claims Court the Commissioner is of rules obliged bound by the ordinary evidence. to proceed inquisitorially and is not in judgment for either party to grant is empowered the Commissioner the hearing, After proved. in so far as the case has been the defence or counterclaim, ofrespect the claim, during by the parties based solely on the evidence presented decision is Commissioner’s The If is of the Commissioner the evidence the opinion that with the law. the trial and in accordance absolution from he/she may grant does not enable him/her to give judgment for either party, the instance. of of dates the sitting Commissioners programme clerk of must obtain a court The the court day and must be assigned for every court Commissioner A Advisory Board. the local from In terms of the Act, the Minister may establish a Small Claims Court. Section 9(1)(a) authorises 9(1)(a) authorises Section may establish a Small Claims Court. the Minister In terms ofAct, the for a Small Claims Court. Commissioners one or more the Minister to appoint and magistrates retired advocates, of the ranks attorneys, from drawn are Commissioners expertise and experience training, legal their on draw to required are who academics, legal duties. Claims Court in conducting Small to volunteer attorneys Aid SA and Legal for magistrates It has also become common practice of free charge rendered – these services are their time and skills to serve as Commissioners for their work in any additional remuneration also do not receive and such Commissioners the Small Claims Courts. set out in section 9(1) and (2) ofCommissioner are for appointment as a qualifications The the Act. If due a to is Commissioner his/her unable, absence or incapacity the to finalise a hearing, another Commissioner. de novo before case must be heard over cases of personally known to should not preside persons who are Commissioners of the possibility of on the part clients etc.) or cases where prejudice relatives, them (friends, notice that it comes to his/her where clerk of must, The the court exists. the Commissioner is matter the that ensure plaintiffa Commissioner, the to known personally is defendant or ofplaced on the roll another Commissioner. to be agree They when called upon to be appointed. respond generally Commissioners to their commitment to serve the community, including appointed for various reasons, as a Commissioner. experience develop skills and to gain valuable FUNCTIONS AND POWERS OF THE COMMISSIONER AND POWERS OF FUNCTIONS 2.1 2.2 2.3 2.4 2.5 APPOINTMENT OF COMMISSIONERS APPOINTMENT 1.1 1.2 1.3 1.4 1.5 1.6 1.7

GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 2. 1. CHAPTER 3: COMMISSIONERS CHAPTER GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES It is a requirement It that a is should Commissioner a have requirement legal qualifications and an uninterrupted period of at least five years standing with the Legal should also be in good practitioners, legal who are Commissioners of practical experience or involvement or their bar association. Counsel Practice in the tuition of law. This restriction to limit the appointment of Commissioners to those with legal systems. in other Small Claims Court followed qualifications line with approaches is in and experience not remunerated. on a voluntary basis and are appointed are Commissioners if in his/her any time, may at by the Minister, thereto or any person delegated Minister, The appointment of the withdraw Commissioner. a for doing so, reason is sufficient opinion there a court programme must be planned in advance for a period of at least three months. Each months. a period of in advance for must be planned three least at programme a court telephonically date sitting week prior to his/her one least at must be reminded Commissioner is not available, he/she If the clerk that to indicates a Commissioner or in writing thereof. or another Commissioner. Board Advisory made with the must be arrangements alternative ofadvocates, assistance or the without duties his/her performs Commissioner attorneys The in the procedure. of amount and flexibility with a considerable discretion review only. is final and subject to decision Commissioner’s The CRITERIA CRITERIA FOR APPOINTMENT 3.1 3.2 3.3 3.4 2.6 2.7

3. 26

CHAPTER 13 CHAPTER 14 27

The The clerk of the court must request a prospective plaintiff to the clerk of must assist the court furnish If plaintiff is illiterate, the prospective the intended claim. the information of him/her with the claim. If necessary, the service of an officialused. court interpreter must be has whether the court on the basis of clerk of the facts, must then determine, The the court the facts disclose a cause of the intended claim and whether jurisdiction to hear action. plaintiff must be informed accordingly. prospective The The The clerk of the court can expect written, telephonic and in-person enquiries on a daily enquiries Written basis. must be answered in The details writing. of all enquiries must be in the enquiry register. entered The clerk of the court must, upon In order information. and other general trial dates the institution of a claim, regarding enquiry, advise persons concerning the procedure to assist the clerk of the court which sets out the in brochure, a user-friendly Development has compiled Constitutional answering enquiries, the Department of Justice of to must be given free charge and brochures These in the Small Claims Court. procedure persons making enquiries. directed as numbers file the or system correspondence the use must court the of clerk The of the district in which the seat Board, Advisory with the in consultation by the magistrate, of is situated. the court Summons control register Summons control register In terms ofclerk of every control summons must open a 3(1) of rule court the the Rules, therein. summons, to the is allocated which number for the year and enter the serial Enquiries register the clerk of the court Director-General, to the statistics monthly to furnish correct In order must keep an enquiry register and also keep statistics on the departmental Integrated Case (ICMS). Management System register Warrant the issuing and handing-over of of the clerk to control warrants must maintain the court In order register. a warrant ofRegister reviews the clerk over notices of and therefore reviews exercised be control proper It is necessary that of a register reviews. of must keep the court ofRegister Commissioners be must over the appointment of a register control Commissioners to exercise In order due to no longer available as Commissioners who are of Commissioners, Particulars kept. in the register. must be entered moving or any other reason, resignation, 2.2.1 2.2.2 2.1.1 2.1.2 2.1.3 Advice to prospective plaintiffs: Advice to prospective Handling of: enquiries THE DAILY DUTIES OF THE CLERK OF THE COURT OF THE CLERK DUTIES OF THE DAILY REGISTERS WHICH THE CLERK OF THE COURT MUST MAINTAIN: MUST COURT THE OF THE CLERK WHICH REGISTERS • • • • •

GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 2.2 2.1 2. 1. CHAPTER 4: DUTIES OF THE CLERK OF THE COURT OF THE CLERK OF 4: DUTIES CHAPTER

court programme must be be must programme court GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES - through a contract/agreement. - through Ex contractu damage. the plaintiff a delict/unlawful act by which suffered Ex delictu - through confer a claim. measures or other government statutes Ex lege - where which to benefit/money/asset a obtains person a where - enrichment unjust Through he/she is not entitled. (a) (b) (c) (d) If jurisdiction and whether the has whether the court the clerk of is uncertain the court plaintiff to the legal assistant or the prospective refer complainant has a claim he/she shall Aid Legal SA. The clerk of the court must assist the prospective plaintiff by providing the plaintiff with Aid SA. the number of Legal with the institution of If he/she plaintiff decides to proceed the claim after the prospective of step is to send a letter the next demand. has been advised, The clerk of the court may not refuse to assist the plaintiff in writing a letter ofplaintiff to assist the a letter in writing clerk of demand not refuse may The the court or in issuing a summons, since the court must in it has jurisdiction or not). (including whether the final instance,make the decision if in mind that of the person jurisdiction over have does not Bear the court the defendant jurisdiction ofobject to the defendant may not the that still exists possibility the the court. will disclose a cause of facts The originates: action if is a claim that there The clerk of the court must obtain a court programme of of dates the sitting Commissioners programme clerk of must obtain a court The the court from the Advisory Board. Advisory Board. the from day and a court be assigned for every must Commissioner A months. planned in advance for a period of three least at date one week prior to his/her sitting least at must be reminded Each Commissioner he/she is not available, If that indicates a Commissioner telephonically or in writing thereof. or clerk ofAdvisory Board the court. must be made with the arrangements alternative The court roll must be planned in consultation with the local Advisory Board. The Advisory Advisory The Board. Advisory local the with consultation in planned must be roll court The times the sitting what one which days, where, will sit, how many courts must indicate Board per sitting. and the number of for trial to a court must be allocated are cases that When the clerk of the court enters a case on a specific court date in the trial he/she diary, the maximum number of not exceeded. that cases are must ensure clerk of the must the court months in advance, for three fully booked is If roll the court of for the consideration the institution of court. Advisory Board a further the approach these cases must be deleted the trial date, before of received returns non-service are Where of received or whether returns service where regardless All the other cases, in the trial diary. of form part roll. the court or not, a to attached be must and writing legible and neat in written or typed be must roll court The the commencement of one hour before of or to the door least the at notice board the court court

2.2.6 2.2.7 2.2.8 2.2.3 2.2.4 2.2.5 COURT PROGRAMME FOR COMMISSIONERS COURT 4.1 4.2 4.3 PLANNING OF THE COURT ROLL THE COURT PLANNING OF 3.1 3.2 3.3 3.4 3.5

4. 3. 28

CHAPTER 14 CHAPTER 14 29

, a date must be determined in consultation consultation determined in must be a date sine die, In terms of section 6 of the Act, the documents of a court shall be available for inspection by members of the prescribed the public under the supervision of at the clerk of the court, times and on payment of fees. the prescribed with the Commissioner and the parties informed accordingly. This date must thereafter be be must thereafter date This informed accordingly. and the parties with the Commissioner diary. in the trial date entered may be assigned to any Commissioner. not part-heard are cases that Postponed The clerk of the court must make satisfactory arrangements for the recovery of for the recovery the court arrangements satisfactory clerk of must make The the court files after the sitting of the court. He/she must arrange with theCommissioner for the safe- keeping of files until they can be collected or make arrangements that they be sent back to post. by registered Upon receipt of the files the clerk of the court must check them against the trial date diary diary. in the trial date endorsement an appropriate and make has been an order After cases must be inspected for the issuing ofCompleted orders. of register, the particulars in the summons control the outcome must be endorsed issued, which the files must be filed. after Cases postponed to specific dates must be entered against the date in the trial date diary must be informed of postponed the case, absent when the court were that and the parties the date. If the case is part or not. heard An endorsement must also be made whether the case is part of the particulars must also be recorded. the Commissioner heard, postponed are matters part-heard Where The clerk of the court must prepare the court roll according to the enrolment in the trial diary in the trial diary to the enrolment according roll the court of clerk must prepare The the court date. prior to the court days three least at Commissioners. the to delivered be must paper writing sufficient with together files court The diary. in the trial date must be made to this effect An endorsement to the Commissioner. is delivered roll of clerk the court that must see to it The the court of than the main seat other the clerk of centres held at are sittings the court In cases where the court, the court files may be sentto theCommissioner byregistered mail.Carehowever, be must, taken that such court filesreach theCommissioner at least two days prior may Arrangements also be made fetch Commissioners that the the a atfilestrial court date. to specific place. in this Advisory Board clerk of must follow the instructions determined by the The the court regard. Court files must be handled in such a manner that they is obtained. access thereto are not lost or that unauthorised INSPECTION OF COURT DOCUMENTS BY PUBLIC DOCUMENTS BY OF COURT INSPECTION 7.1 6.7 RECOVERY OF COURT FILES OF COURT RECOVERY 6.1 6.2 6.3 6.4 6.5 6.6 DELIVERY OF COURT ROLLS TO COURT TO ROLLS OF COURT DELIVERY 5.1 5.2 5.3 5.4 5.5 5.6

GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 7. 6. 5. GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES It is necessary to collect and analyse statistics regarding certain aspects of certain the small claims regarding It is necessary to collect and analyse statistics Courts. the Small Claims evaluate to properly in order procedure of enter the particulars the cases on a daily basis into clerk of must therefore The the court on the use of is supplied to the clerks the ICMS. Training the ICMS. If an action is based on a document and the original document is filed in the court file, the be an acknowledgement of against the completion ofdocument may after receipt, the case, it in. handed that to the party returned in. have been handed also applies to all other documentary evidence that This At present no times and fees are prescribed and the clerk of the court must therefore, on request, during official working hours, make the documents available to members public. of the The furnishing of lists of civil judgments to private individuals and instances is discouraged be furnished ifand should only of upon and with the permission insisted Advisory the local of of is situated. the magistrate and the district in which the seat the court Board filesCourt may not be out taken of the office of the clerk The clerk of theof court. the court of copies free charge. certifies FURNISHING OF EXTRACTS OF JUDGMENT OF FURNISHING OF EXTRACTS provided is extract the Where 444. of ofJ. clerk extract an issues form on judgment a The court the not payable. fees are for the purpose of 41(2) of section Act, the RECORDS OF COURT CERTIFYING or omissions in a copy of no mistakes a court are there that clerk of must ensure The the court as a true copy of is certified that the original. record AND JUSTICE DIRECTOR-GENERAL: THE TO INFORMATION FURNISHING OF STATISTICAL DEVELOPMENT CONSTITUTIONAL 11.1 11.2 RETURN OF DOCUMENTS 8.1 8.2 7.2 7.3 7.4

10. 11. 9. 8. 30

CHAPTER 14 CHAPTER 15 31

Proceedings are usually instituted in the court of the area where the defendant resides, resides, the defendant where ofcourt in the usually instituted the area are Proceedings cause of the or where action arose. or is employed, carries on business determine whether the of must the clerk On the basis ofCourt the Small Claims the facts, disclose a cause of claim and whether the facts the intended to hear has jurisdiction court action. from a delict/unlawful act as a result of which the plaintiff suffered damage; of a delict/unlawful act as a result which the plaintiff suffered from a claim; or confer that or other government authorisations statutes from he/she which to benefit/money/asset a obtains person a where – enrichment unjust from is not entitled. or corporations as companies, person instituting a claim is not a juristic person (such The associations). person the Ifolder, or 18 years not older. or 18 years claim is person instituting the The or legal guardian. should be assisted by a parent of department State. the or provincial claim is not against a national The or Labour counsel bargaining CCMA, which the over claim is not a labour matter The or unfair unfair labour practise unfair dismissal, e.g. jurisdiction, exclusive has Court discrimination. monetary the current any abandonment does not exceed claim amount after The jurisdiction. prior to the institution he/she may, institute a claim is informed that person intending to The of the claim seek legal advice. the claim of summons must detail The the plaintiff against the defendant. Check if has jurisdiction over the claim and the defendant. the court is given 14 in which the latter of plaintiff has sent a letter demand to the defendant, The days to pay the The claim. letter of demand must be in duplicate and the court file must the contain proof of If delivery thereof the claim is against an individual, to the defendant. the and in case of full name and address a company, plaintiff must give the defendant’s name and address. company plaintiff must give the correct from a contract/agreement; from ü ü ü • • • • • • • • • ü PROCESS PRIOR TO THE INSTITUTION OF A CLAIM A OF THE INSTITUTION TO PROCESS PRIOR 1.1 1.2

The clerk of the Small Claims Court must ascertain the following: clerk of must ascertain The the Small Claims Court The facts will normally disclose a cause ofThe originates: if action a claim that is there GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 1. CHAPTER 5: CHAPTER 41 Summons 42 Step 3 Step to respond Defendant doesn’t of Demand Letter 43 Step 2 Step Letter of demand Letter GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES Step 1 Step It must allow the defendant at least 14 days to satisfy the plaintiff’s claim. the plaintiff’s to satisfy 14 days least It must allow the defendant at of of the date of receipt counted from the letter demand. 14 days are The the of clerk the demand, of letter the of drafting the with assistance requires plaintiff the If should assist him/her. Small Claims Court The plaintiff is required to write a letter of demand and deliver the same to the defendant. the to same the deliver and demand of letter a write to required is plaintiff The of the defendant by the plaintiff to by hand or by letter can be delivered demand The post. registered The plaintiff must prove by means of an affidavit or by aregistered post receipt that the of to the defendant. letter demand has been delivered upon facts of the particulars the out set adequately but briefly must ofdemand letter The amount. which the claims is based and the INSTITUTION OF A CLAIM A OF INSTITUTION Forms of summons Forms The 1 of the Rules. as contained in Annexure comply with form 1, respects summons must in all The of supplied free charge forms are The J.141 E (English). and (Afrikaans) A J.141 form numbers are • • of Demand to Letter Respond by Defendant to 2: Failure Step plaintiff the of letter the in out claim as set Ifdemand, plaintiff’s the to satisfy fails defendant the 14 days of ofmay issue a summons against the defendant after letter. receipt that 3: Issuing ofStep Summons by which an action is commenced is by way of process a summons which is a document The to defend alternatively, a claim as set out in the summons or, calling upon the defendant to satisfy the action within a specifiedThe period summons of also sets time. out the consequences of to comply. failure • • • • Step 1: The Letter of Demand Letter The 1: Step • Section 29(1). 8. Rule 8(a). Rule

42 43 41 2. 2.1 32

CHAPTER 15 CHAPTER 15 33

Case number number Case including the case number time and place, Date, of surnames and addresses the parties Names, of the plaintiff Signature the summons is issued in which Court will be held the proceedings where Court place take which the trial will at time and place Date, Amount of the claim ofBrief particulars of the claim (as set out in the letter but sufficient demand) amount this abandoned, been has jurisdiction monetary Ifcurrent the exceeding amount any should be specified and the plaintiff should sign in the space provided copy of an extra the summons should be made for each than one defendant, If is more there defendant to any amendments made to the summons. plaintiff next must place his/her initials The The summons must be served on the defendant not less than 10 days before the trial. not less than 10 days before must be served on the defendant summons The of of must be signed by the clerk summons the date bear and must The issue by the court the clerk. of the provisions to attention the defendant’s must include a notice drawing summons The 43 of 40 and Act. the 39, 38, 35, sections 29(3), summons must be signed by the plaintiff. The of summons must contain the full address the plaintiff. The and amount of of particulars the claim(s). must show the nature claim The of particulars must also show any abandonment of claims The of part the claim under section 18 or any set-off under section 19. The summons must also show the name of the defendant as the defendant is known to the or place of gender and residence business and in the case of the defendant’s a plaintiff, which it is known to the plaintiff. juristic person under the name by ü ü ü ü ü ü ü ü ü ü ü ü the claim must be legally valid, which is a determination reserved exclusively for the court; exclusively reserved which is a determination the claim must be legally valid, against the right person; and the claim must be brought and include the following: the details of formulated the claim must be properly Essentials of the Claim Important aspects ofImportant the summons 2.2.1 2.2.2 2.2.3 2.2.4 2.2.5 2.2.5 2.2.6 2.2.7 to plaintiffs. The summons must be prepared in triplicate. If there is more than one defendant, than one defendant, If is more there in triplicate. be prepared summons must The to plaintiffs. additional defendant. for each prepared copies must be additional • • • GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 2.3 – the Small Claims Court before to claims brought apply following essential requirements The 2.2 44 GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES The summons may be served either by the plaintiff personally or through the sheriff. Should Should sheriff. the the plaintiff may be served either by summons or through personally The to court the of clerk the to handed be should affidavit an service, to attend to elect plaintiff the place. service has taken proper that the effect The plaintiff is liable for the sheriffs’ fee for service of summons. of fee for service plaintiff the sheriffs’ is liable for summons. The date. the hearing before ten days least should be served at summons The place. will take which the proceedings at time and the place date, The a return that to ensure the proceedings plaintiff the clerk of must contact before The the court of service was obtained. filing for based is claim the which on documents supporting the all produce must plaintiff The file. in the court on the relevant the court at the witnesses should be present If the plaintiff has any witnesses, date. hearing Rule 24(2) can also be considered where during the hearing. The plaintiff must be required It is only if cannot be achieved through the service fashion. to serve the summons in the usual a substituted should consider whether to possibly entertain the court that the usual means and unreliable be inherently can although progressive, Service by email, manner of service. the summons was not that it becomes apparent when not be encouraged should generally will use its discretion. but the court reason, successfully served for whatever • • • • • • • • Section 29(2) of the Act, read with Rule 12 of the Small Claims Court Rules, allows for service ofallows for the plaintiffsummons by the or his/her Rules, 12 ofRule with Claims Court the Small read Section 29(2) ofAct, the when and how indicating affidavit an file must summons the served whoever that requirement The SAPS. include would which representative the summons was served is not ofa prerequisite Act the or but the a merely Rules, practical solution which assists Commissioners to assess whether the defendant notice received of the and proceedings whether has there been compliance with the 10 day notice period required 9(1) of Rules. by Rule the Small Claims Court If both parties are before court and there is no affidavit filed thepresiding Commissioner can also establish is no prejudice there Iffrom was compliance, there with the notice period. was compliance the summons and whether there when he/she received the defendant how and proceed. the matter that for any of can order and the Commissioner the parties

44 After After the clerk of the court has confirmed that all the particulars on the summons havebeen properly the plaintiff and inform issue the summons he/she must of following: the completed, 34

CHAPTER 15 CHAPTER 15 35

45 If the plaintiff makes an error with the drafting of the summons, he/she may amend the the amend may he/she of summons, the drafting the with Iferror an plaintiffthe makes noting the amendment by hand it is served on the defendant by simply document before is it before summons the to alterations the initialling and copies the on and original the on served. clerk of stamp the amendment(s). must also initial and date The the court for the plaintiff will have to apply to the court If been served, the summons has already judgment amend any any time before may at court A permission to amend the summons. no amendment will be that provided summons or other document in connection with a case, such made upon may be amendment The thereby. ifmade be prejudiced will party other the may deem reasonable. conditions as the court ensure that the claim sought does not exceed the monetary jurisdiction; does not exceed the claim sought that ensure be satisfied with the contents of the summons before allocating a number to the summons of and place a date or allocating hearing; on all documents number must be marked which claim document, number the original to the claim; relating is determined; date a hearing that ensure hand to the plaintiff the original copies ofwith the case number for service the claim marked defendant; on each delivery; of proof and demand of letter service, of return summons; original the file and retain place one copy of the summons in the file coverplaintiff and together with the other copies for service; and hand original the summons to the diary a in entered are cover file the on parties the of names and number case the that ensure that is specially kept for this purpose (trial date diary), and the filesorder. are filed in numerical • • • • • • • • Amendment of summons 2.4.1 2.4.2 2.4.3 Section 33 Checklist for the issuing of for the issuing Checklist a Summons: must – issuing a summons, and after before of clerk The Court, the Small Claims GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 45 2.4 Supporting documentation Supporting Case number Case of particulars the Personal plaintiff and defendant address plaintiff’s The

Checklist for lodging lodging Checklist for of statement a written defence: GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 46 If the defendant elects to file a counterclaim, he/she or it must deliver a the writtenbefore clerk statement, the to summons, a for required those as particulars same the contains which hearing. of statement written defence. may also be included in the defendant’s counterclaim The thereof. the clerk for assistance with the formulation defendant may approach The is crucial if against the statement a written the defendant has a counterclaim Lodging documents assisting in the proof of to advise the defendant that It is important his/ plaintiff. witnesses. call also can defendant the that and file court the in filed be must counterclaim her The written statement of statement of written the particulars defence must contain plaintiff the The defendant, and summons and must contain the basis of on the as they appear the defence. If a defendant approaches the clerk of the Small Claims Court to file a written statement of The thereof. the clerk or legal assistant must assist him/her with the formulation defence, clerk must advise the defendant to furnish the plaintiff with a copy of prior to the the plea hearing. If the defendant wishes to defend the plaintiff’s claim, he/she may lodge with the clerk a he/she may lodge with the clerk a If claim, to defend the plaintiff’s the defendant wishes of of on his defence and particulars the nature the grounds forth setting statement, written of and a copy to the plaintiff shall be furnished by the statement that which it is based, defendant. The summons that is served on the defendant must provide details of the defendant must provide is served on the plaintiff that summons and the basis The informs the defendant of summons he/she should The the steps that of claim. plaintiff’s the follow if deciding to defend the case. The defendant may file a counterclaim defendant may file The 1.3.1 1.3.2 1.3.3 1.3.4 DEFENDING A DEFENDING A CLAIM 1.2.2 1.2.3 The defendant may defend the action The 1.2.1 arrangement with the plaintiff to pay the claim – arrangement the claim, while admitting the defendant, In the event that the claim to satisfy he/she cannot afford that declares for a proposal make the defendant may immediately, weekly or monthly e.g. “terms of payment” to the plaintiff, payments. for terms of a proposal defendant can also make The of part payment for that claimed which he/ the amount she admits. A defendant who does not dispute a claim may make an an may make who does not dispute a claim defendant A Section 29(3).

1.3 1. CHAPTER 6 6 CHAPTER 46 1.2 1.1 36

CHAPTER 16 CHAPTER 17 37 48

Case number; Case of and the the parties Particulars claim; of grounds (cause the claim The of action); value ofThe the claim; and may counterclaim The be accompanied by the to the plea defendant’s summons.

Checklist for counterclaims: Checklist for 49 47 of a counterclaim would be a tenant claiming a deposit back at the end ofof at a deposit back claiming be a tenant would typical example a a counterclaim A in the tenant had caused damages to the premises that counterclaiming and a landlord lease, ofexcess the amount of the deposit. plaintiff the that asserts defendant which the in vehicle accident a might be example Another the plaintiff is indebted car and therefore was negligent in causing damage to the defendant’s to the defendant. If the counterclaim exceeds the jurisdiction of the Small Claims Court, the Commissioner is obliged is obliged the Commissioner the jurisdiction ofIf exceeds the Small Claims Court, the counterclaim to enable the defendant to bring his/her claim against the to stay the small claims proceedings is reviewable. to stay the proceedings failure A plaintiff in a higher court. The Small Claims Court does have jurisdiction to entertain a counterclaim by a juristic person by a juristic person a counterclaim does have jurisdiction to entertain Small Claims Court The as defendant. the court before having been brought The parties in the main claim and in the counterclaim the main claim and in the counterclaim in parties The must be the same. The defendant must file a counterclaim by later no can (the counterclaim the trial date before than a day of on the day to court the trial if be brought the court allows it). may be claimed in a maximum amount that The monetary must be within the current counterclaim jurisdiction. bring it within the jurisdiction of the Small Claims Court. If an action is instituted in a specific court, the against the plaintiff even if institute a counterclaim the plaintiff does not defendant may therefore court may hear mattersrelated to the case. The be related however, must, counterclaim The oflive or work within the jurisdiction the said court. by the plaintiff. raised to the issue be relevant it must in one way or another is, that to the claim, A counterclaim (also called a claim in reconvention) is is in reconvention) (also called a claim counterclaim A the defendant against the plaintiff. by a claim brought type ofany be may counterclaim mentioned claim A in section 15(1) ofAct. the The defendant may, however, as already pointed out, abandon a portion of portion abandon a as to his/her claim so pointed out, as already however, defendant may, The The defendant may therefore institute a counterclaim against the plaintiff even if institute a counterclaim the plaintiff the jurisdiction oflive or work within does not therefore defendant may The to the issue raised it must in one way or another be relevant is, that to the claim, be related however, must, counterclaim The the said court. by the plaintiff. 457. 454 (SE) at Another 1987 (2) SA v Sher and Swart 606 (D). and Others 1999 (4) SA Motor Industries Prospecton v Barlow Motor Investments (Pty) Ltd t/a Natal Raman GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 47 48 49 8. 7. 3. 4. 5. 6. 2. 1. CHAPTER 7: COUNTERCLAIMS 7: COUNTERCLAIMS CHAPTER 46 If the defendant elects to file a counterclaim, he/she or it must deliver a the writtenbefore clerk statement, the to summons, a for required those as particulars same the contains which hearing. of statement written defence. may also be included in the defendant’s counterclaim The thereof. the clerk for assistance with the formulation defendant may approach The is crucial if against the statement a written the defendant has a counterclaim Lodging documents assisting in the proof of to advise the defendant that It is important his/ plaintiff. witnesses. call also can defendant the that and file court the in filed be must counterclaim her If the defendant wishes to defend the plaintiff’s claim, he/she may lodge with the clerk a he/she may lodge with the clerk a If claim, to defend the plaintiff’s the defendant wishes of of on and particulars his defence the nature grounds the forth setting statement, written of and a copy to the plaintiff shall be furnished by the statement that which it is based, defendant. The written statement of statement of written the particulars defence must contain plaintiff the The defendant, and summons and must contain the basis of on the as they appear the defence. If a defendant approaches the clerk of the Small Claims Court to file a written statementof The thereof. the clerk or legal assistant must assist him/her with the formulation defence, clerk must advise the defendant to furnish the plaintiff with a copy of prior to the the plea hearing. The summons that is served on the defendant must provide details of the defendant must provide is served on the plaintiff that summons and the basis The informs the defendant of summons he/she should The the steps that of claim. plaintiff’s the follow if case. deciding to defend the The defendant may file a counterclaim defendant may file The 1.3.1 1.3.2 1.3.3 1.3.4 DEFENDING A DEFENDING A CLAIM with the plaintiff to pay the claim – arrangement the claim, while admitting the defendant, In the event that the claim to satisfy he/she cannot afford that declares for a proposal make the defendant may immediately, weekly or monthly e.g. “terms of payment” to the plaintiff, payments. for terms of a proposal defendant can also make The of part payment for that claimed which he/ the amount she admits. defendant may defend the action The 1.2.1 1.2.2 1.2.3 A defendant who does not dispute a claim may make an an may make who does not dispute a claim defendant A Section 29(3).

1.3 46 CHAPTER 6 6 CHAPTER 1. 1.1 1.2 S33 substitution Application for Application to have the judgment rescinded, to have the judgment rescinded, S32 S35 judgment defendants trials of joined Application for default Application Application to seperate to seperate Application S46 S31 50 Application for review Application trials of joined plaintiffs Application to seperate to seperate Application GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES S36 S13 The Rules and the Act do not prescribe in which form an application must be made and must be made and which form an application in do not prescribe Act the and Rules The all - although it is advisable that permissible are applications and written both oral therefore applications be made in writing, accompanied by the necessary founding affidavit setting for the application. out the grounds The application should be accompanied by the necessary founding affidavit setting out the be served on the opposing party. and for the application grounds evidence may be presented. evidence and oral written If is no affidavit, there the for arrangements the clerk of who must make applicant must approach the court The ofhearing the application. specific a on time specific a at appears applicant the that arrange must court the of clerk The Commissioner. a before date in which an the form do not prescribe Act and the the Rules mentioned, as already Although, the application to the applicant that it is prudent to recommend must be made, application is submitted in writing and to request him/her of prior to the date to opposing party trial. the hand a copy of the application to the If the application pertains to a pending of hearing the for arrangements make then will clerk The of date a for appearance. arrange or completed case, the clerk of the the application. court must Examples of types of applications: Application for Application if in the absence of by the court the judgment was granted the person against whom that of weeks six within first applicant the brought be must application the granted, was judgment Act does not Claims Courts stands the Small As it currently ofbecoming aware the judgment. should an application In the circumstances of for condonation the six week time limit. provide applicant is time barred; the six week period, within the not be brought if the judgment was void ab of or as a result a mistake origine or was obtained by fraud first applicant the after year one than later not made is application the parties, the to common or or mistake; fraud had knowledge of the voidness,

Application to transfer to transfer Application rescission ofrescission judgment varied or corrected provided that - that provided varied or corrected APPLICATIONS FOR RESCISSION OF CERTAIN JUDGMENTS OF CERTAIN FOR RESCISSION APPLICATIONS by a judgment may apply to the court Any person who is affected 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 • • Section 36.

GENERAL: 50

2. 1. CHAPTER CHAPTER APPLICATIONS 8: 38

CHAPTER 18 CHAPTER 18 56 39 54 51

55 53 52 If a defendant admits liability and consents to a judgment in writing, or fails to appear before before appear to fails or writing, in judgment a to consents and liability admits defendant a If for the plaintiff judgment and grant by the plaintiff, on application may, the court the court, by the defendant. if any, dismiss the counterclaim, If the plaintiff fails to appear before the court, the court may, on application by the defendant, defendant, the by application on may, court the court, the before appear to fails plaintiff the If judgment for the defendant. grant and if is a counterclaim, there claim, dismiss the plaintiff’s If the application is granted the latter court will, notwithstanding anything to the contrary in in anything to the contrary notwithstanding will, court Ifthe latter is granted the application action. that have jurisdiction to hear Act, the A claim can be transferred from one court to another, with the consent of all the parties, or or with the consent of all the parties, to another, one court from can be transferred claim A the must satisfy bringing the application party The of upon the application of one the parties. inconvenience or expense in undue ofmay result the hearing court that the action in that court to him/her. if there was a patent error in the case of a judgment, the affected party who intends to apply apply intends to who party affected the of in the case error if a judgment, a patent was there for the rescission of an order must do so within one year after he/she first had knowledge of vary or correct may suo motu rescind, which the court limit within is no time There any errors. in the said order. error a patent to correct in order an order why he/she a sound reason the applicant should provide In the instance of a default judgment, defence. a bona fide also provide was in default and APPLICATION TO TRANSFER A MATTER FROM ONE COURT TO ANOTHER TO ONE COURT FROM MATTER A TRANSFER TO APPLICATION APPLICATION FOR SEPARATE TRIALS IN CASE OF JOINDER OF PLAINTIFFS OF TRIALS IN CASE FOR SEPARATE APPLICATION for the joinder ofSection 31 ofAct provides any number of the of persons each whom has a however, defendant may, The in one claim. as plaintiffs same defendant, claim against the separate order such make discretion its in may court the and held, are trials separate that court the to apply as it deems just and expedient. APPLICATION FOR DEFAULT JUDGMENT FOR DEFAULT APPLICATION 7.1 APPLICATION TO SUBSTITUTE THE CORRECT NAME OF ANY PERSON OR PLACE BEFORE OR BEFORE OR PERSON OR PLACE ANY NAME OF THE CORRECT SUBSTITUTE TO APPLICATION SUBSTITUTION FOR APPLICATION / JUDGMENT AFTER upon name of may, The court any person or place as commonly known may be used and the name. name for that substitute the correct judgment, or after any time before at application, APPLICATION FOR SEPARATE TRIALS IN CASE OF JOINDER OF DEFENDANTS OF TRIALS IN CASE FOR SEPARATE APPLICATION jointly in and in the alternative both or alternative the in be sued may defendants or more Two if which of he/she is uncertain the plaintiff that one action, alleges is in law liable the defendants for his/her Section claim. allows 32 a of upon to defendant, application, request however, the Act, or make trials be held, separate that order of may in its discretion a separation trials and the court as it may deem just and expedient. such other order 7.2 • • 3.2 3.1 A party applying for the transfer of a matter must satisfy the court that the hearing of the action in that court may result in undue expense or or in undue expense of may result the hearing court that the action in that the court of must satisfy applying for the transfer a matter party A inconvenience to him/ her. Section 13. Section 32. Section 33(3). Section 35(1). Section 35(2).

GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 3. 4. 51 52 53 54 55 56 7. 6. 5. A litigant may take the the litigant may take A 57 on the part of or on the part the Commissioner; 58 GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES the Commissioner who presided during the proceedings; who presided the Commissioner of court; the Chairperson ofAdvisory Board the relevant the of is; and the seat the court in whose area Attorney State the relevant Development. Justice and Constitutional the Director-General: enter the particulars of the case in the review register; of register; enter the particulars the case in the review fax the application for review together with papers (Voluminous on fax: 012-315 1105. Law Enforcement to the Director: all immediately supporting affidavits and documents Office); to the National immediately should be couriered of a transcript the proceedings; forward of date of service; and from within 14 days the Commissioner the reasons forward deliver a copy of notice together with a copy of by the review file immediately the court mail to – hand or per registered (i) (ii) (iii) (iv)

The Commissioner must on receipt of the notice immediately send his/her written reasons to to of reasons written send his/her must on receipt the notice immediately Commissioner The the clerk of the Small Claims Court. send copies of to the Chairperson the reasons thereof, on receipt clerk of must, The the court Justice and and the Director-General: Attorney State the relevant ofAdvisory Board, the Development. Constitutional a send received, are reasons written Commissioner’s the when clerk of must, The court the date The Court. High the Registrar of the to mail registered by file of court copy the certified register. of must be endorsed in the review dispatch The clerk of must:- The the court ü ü ü ü ü A case is taken on review by way of review on a notice of case is taken motion and a founding affidavit; A in terms of is noted Rules; 53(1) of review Rule the High Court The on all parties. must be served for review application The Absence of jurisdiction; malice or corruption bias, in the case, Interest Gross irregularity in the proceedings. in the proceedings. irregularity Gross 10.2 10.3 10.4 STEPS TO BE TAKEN UPON RECEIPT OF A NOTICE OF REVIEW OF NOTICE A OF UPON RECEIPT TAKEN BE TO STEPS 10.1 PROCEDURE FOR REVIEW: • • • APPLICATION FOR REVIEW APPLICATION against. be appealed cannot judgment ofA Claims Court the Small • judgment on review to the High Court. The review may only be used by a litigant in respect of be used by a litigant in respect may only review The to the High Court. judgment on review within section 46 of falling Act. matters the - grounds: following the on Court High the to review on taken be may decision Commissioner’s The • •

No litigant can appeal against the judgment delivered by a Commissioner in the cases which he/she adjudicated - section 45 ofAct. in the cases which he/she adjudicated by a Commissioner the the judgment delivered against No litigant can appeal 2004. Act, Activities of See the Combating Corrupt

10. 9. 57 58 8. 40

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The The clerk of the court must, when the certified copy of and of the Commissioner inform for review decision to oppose the application the theRegistrar, court file isreceived from the register. in the review enter the decision The Advisory Board must make a recommendation to the State Attorney regarding any possible any possible regarding Attorney State to the a recommendation must make Board Advisory The the to a recommendation must make in turn Attorney State The to the application. opposition to maker decision final the is who Development Constitutional and Justice Director-General: for review. oppose the application 10.6 10.5 GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES Upon receipt of the case determining if file, the contents of in order. the file are the Commissioner must peruse the file by plea The of cause of letter plaintiff’s demand and summons must disclose the action. The with the aim of whether the defendant admits the defendant (if defence, any) must disclose the defendant’s against the plaintiff is instituted. the claim or whether a counterclaim the following has been that must ensure the Commissioner commences, the hearing Before complied with: The inquisitorial system is a method of adjudication in which the presiding officer endeavours endeavours officer presiding the which in adjudication of method a is system inquisitorial The to ascertain the facts by actively officer presiding the system considering this In decision. a at arriving and evidence the the weighing information provided, questioning the parties, of to determine the facts and is not a passive recipient information. steers the parties evidence and and present gather opposing parties or more two In the adversarial system, facts case the the with of unfamiliar is officer presiding The officer. presiding a to arguments before it is presented. The role of the presiding officer to its case according presents party each that only to ensure weigh the facts and to intervene is essentially remain to impartial, the rules. for the way in implications have profound in the judicial role-description differences The in established be must facts The pursued. are system inquisitorial the of objectives the which that the inquisitorial It system means a has therefore, way to as that is comply fair. regarded to be avoided. rules are Exclusionary of the Constitution. with the fair trial requirements is in the Small Claims Courts system of used to conduct proceedings The adjudication inquisitorial in nature. Any evidence having reasonable value as proof may be offered, subject to the provisions of provisions the to subject proofvalue as offered, be may reasonable having evidence Any evidence or repetitious irrelevant to accept may refuse the Commissioner However, Act. the or arguments. during the may be used as evidence the parties by e-mail between Any correspondence trial. The Commissioner may decide whether parties can ask each other questions or whether to party. it to the other he/she directs the question to him/her before direct place in open court. take proceedings The if of of it is in the interest the administration or of justice or of good order public However, morals or at the ofrequest the parties to the for sufficient, proceedings considered reasons doors or that be held behind closed the proceedings that may order the Commissioner the proceedings. at specified persons not be present PREPARATION FOR TRIAL PREPARATION 3.1 3.2 3.3 COMPARISON: THE INQUISITORIAL AND ACCUSATORIAL SYSTEMS SYSTEMS AND ACCUSATORIAL THE INQUISITORIAL COMPARISON: 2.1 2.2 2.3 2.4 NATURE OF TRIAL NATURE 1.1 1.2 1.3 1.4 1.5

3. 2. 1. CHAPTER CHAPTER 9: THE TRIAL 42

CHAPTER 19 CHAPTER 19 43

59 That he/she has perused the file and is familiar with its contents; is familiar with its the file and he/she has perused That the matter; hear he/she has jurisdiction to That if required; been arranged, has interpreter a court That if with the clerk of required. arranged has been the court, orderly a court That service of the summonstime limits have in terms of the prescribed rules and that the court to. been adhered ü ü ü ü If the matter is a default judgment, the Commissioner must ensure that there was proper was proper there that must ensure the Commissioner If is a default judgment, matter the If any amount exceeding the monetary jurisdictional has been abandoned, particulars of particulars the Ifabandoned, been has monetary jurisdictional the amount exceeding any and the plaintiff in the space provided; must have signed said amount must have been stated number; Case ofDate issue of summons; of names and address the plaintiff; Full of stamp by the clerk of the plaintiffSignature on the summons together with the date the court; is issued; Name of in which the summons the Court will be held; the proceedings Name of where the Court identity number (if of available) and address names, the defendant; Full of of the claim (as mentioned in letter demand); Particulars and monetary jurisdiction; has both geographical court The to any amendments made; plaintiff next has placed his/her initials The of a return service showing If the summons has been served on the defendant by the Sheriff, on reflected be also must service for fee Sheriff’s The attached. be must ofservice method the ofthe return service; If the plaintiff served the summons personally, an affidavit must be service took place; proper in the file asproof that days in advance of ten court least the trial date; been served at summons must have The place should be in the file; will take which the proceedings time and the place at date, The corporations claim may not be a juristic person (such as companies, person instituting a The or associations); the details of If the person 18 years, below or older. claim is 18 years person instituting the The who is assisting the child should be in the file; of department the State; or provincial a national claim is not against The can hear; the Small Claims Court that whether it is a matter If the claim is a labour matter, claim has not prescribed; The CHECKLIST FOR TRIAL CHECKLIST in the case file: appears the following information that must ensure Commissioner The • • • • • • • • • • • • • • • • • • • • 3.4 Since the overwhelming majority of parties before a Small Claims Court are natural persons who are unrepresented, the issue of prescription the issue of prescription unrepresented, persons who are natural are a Small Claims Court Since the overwhelming majority of before parties is unlikely to specificbe attentionhowever, raised, is drawn to section 17(1) ofPrescription Act the 68 shall not of of court its own 1969 (“A notice of). motion take prescription”

GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 4. 59 makes an an makes GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES He/she assumes an active inquisitorial role of the dispute; the evidence necessary to resolve presentation and is responsible for supervising the their in presenting and their witnesses to assist the parties He/she has an obligation evidence-in-chief; respective with the permission of may only question the witnesses Each party the Commissioner; the it would be most prudent that not recorded, are Although the proceedings assist in would certainly This notes of written all the evidence. keep Commissioner of the Commissioner of the facts and details in the event ofreminding the matter a many months later; review neutral a maintain must he/she inquisitorially, conducted are proceedings the Although and during the proceedings; role conduct a hearing as informally as possible while maintaining the dignity and decorum informally as possible while maintaining the dignity and decorum as conduct a hearing of the court; essence of the and the manner in which it is to the parties explain the proceedings conducted; in the to participate ready and are to proceed ready are the parties that ensure proceedings, and establish if an interpreter is required, so that and the understand the proceedings, parties can fully ensure that a witness is properly identified andthat he/she testifying. before affirmation takes oath or • • • • • • • • • The Commissioner must always keep in mind that - in mind that must always keep Commissioner The The Commissioner must – Commissioner The The conduct of the proceedings lies in the hands of the Commissioner. In terms of the Act terms of In Act the conduct of lies in the hands ofThe the proceedings the Commissioner. of in conducting the hearing. measure discretion he/she has a large The case file containing witnesses’ statements and other materials must be placed the commencement ofdisposal of before the proceedings. the Commissioner at the proceedings. during the court judicial dominance continues Commissioner’s The ofmost does of questioning the witnesses the and litigants the truth, the seeking in He/she, the dispute. to resolve familiar with the facts in order who are conducts the but the Commissioner litigants may determine which witnesses to call, The questioning. of litigants may ask questions only with the permission The the Commissioner. observe the duty roster arranged by the clerk of by the clerk and arranged the court; roster observe the duty ofeach sitting clerk of returned to the the court. after file is the court each that ensure The return of service has been obtained from the Sheriff, alternatively an affidavit and signature signature and affidavit an alternatively Sheriff, the from obtained been has service of return The and by other means; the defendant been served on summons has the where in cases and/or signature of copy post slip, ofA the letter together with proof demand (registered on the defendant. it has been served that affidavit) The Commissioner must – Commissioner The ü ü 7.2 THE PROCEEDINGS 7.1 THE COMMISSIONER AS A PRESIDING OFFICER A AS THE COMMISSIONER 6.1 6.2 6.3 6.4 6.5 6.6 ADHERENCE TO THE DUTY THE ROSTER DUTY ADHERENCE TO • •

7. 6. 5. 44

CHAPTER 19 CHAPTER 19 45

examine witnesses; examine the claims ofinvestigate inspections; to an action and carry out any necessary party a by affidavit; presented evidence receive inform himself/herself in dispute; as to the matters in any other manner and to all witnesses; and affirmations administer oaths adjourn the trial. The Small Claims Court does not have jurisdiction to hear any matter which exceeds its its exceeds which matter any to hear not have jurisdiction does Court Small Claims The even if consented thereto. have the parties jurisdiction, to describe the facts stated in the summons in the order in which they occurred; in the summons in the order to describe the facts stated to show details of the amount owed; defendant and his/her witnesses give evidence; and when the to listen carefully if the the time determined by the Commissioner, at to advise the Commissioner, facts. anything or misrepresenting omitting defendant or his/her witnesses are • • • • • • • The clerk of the Small Claims Court will call the case and both parties will appear before before will appear both parties clerk of will call the case and The the Small Claims Court the Commissioner. Normally the Commissioner will scrutinize the documents and facts decide are whether in any dispute. Based key on disputed facts, the Commissioner may enquire possibility of a settlement. about the he/she must of in the presence the Commissioner, to a settlement If agree both parties If to fail but appear of parties both order an made is it and court. the settlement the record and conduct the hearing. must proceed the Commissioner come to an agreement, defendant if must ask the claim. Commissioner he/she admits the plaintiff’s The the plaintiff is entitled to a judgment. If the claim, the defendant admits his/her the plaintiffIf present must be allowed to not admit the claim, the defendant does case first. All evidence has to be given under oath or The affirmation. Commissioner must swear in swears who interpreter the not is it that fact the to drawn also is (Attention witness(es). the in the witness.) Any one and witnesses which language they prefer. must ask the parties Commissioner The of the eleven official languages may be used in the proceedings, and where necessarya be made available by the court. must competent interpreter proceeding before interpret to time sufficient interpreter the allow must Commissioner The question. with the next The Commissioner proceeds inquisitorially to ascertain the relevant facts and may do so by requesting the plaintiff to describe the facts stated in the the summons, order in which advise must Commissioner The and to show details of the amount claimed. they occurred, the plaintiff as follows: ü ü ü ü During the proceedings the Commissioner may – – may the Commissioner During the proceedings THE PROCESS 8.1 8.2 8.3 8.4 8.5 8.6 8.7 8.8 8.9 8.10 7.3

GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 8. GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES to present his/her defense by testifying, presenting physical evidence and calling evidence and calling physical presenting his/her defense by testifying, to present witnesses; when the plaintiff or any ofto listen carefully and his/her witnesses give evidence; if the plaintiff determined by the Commissioner, the time at to advise the Commissioner, any facts. anything or misrepresenting omitting are or his/her witnesses The attendance of witnesses and the presentation of exhibits at the trial are the sole the sole of of the trial are at exhibits attendance witnesses and the presentation The the trial. should try to get all witnesses to attend Each party ofresponsibility party. each to the trial and brought are exhibits documents or other the proper that It is important of part become and identified are Exhibits trial. the during Commissioner the to shown the evidence. he/she must bring along the original documents, must retain a party for any reason, If, photocopies thereof. certified If the Commissioner is satisfied as to the genuineness of theobjection by copies the the other photocopies party, may andbe identified and there made part of is the no evidence of the trial in place of documents. the original If evidence is presented by affidavit, theCommissioner may adjourn the proceedings to affidavit the made who person the call to affidavit the presenting party the permit to orally. be examined During the proceedings the Commissioner may at any time before judgment grant an ofamendment for application ifdocuments other or summons the prejudice not will it the other party. Each party may, at the of in summation Commissioner his/her position. Commissioner’s discretion, make a final statement the to Physical evidence such as receipts, written leases or other items to support a claim may may claim a support to items other or leases written receipts, as such evidence Physical be shown to the Commissioner. The The Commissioner may ask both parties questions to clarify any evidence that they have presented. The Commissioner must likewise advise the defendant of advise the defendant likewise must following: the Commissioner The ü ü ü 9.2 9.3 9.4 9.5 9.6 9.7 9.8 WITNESSES AND EVIDENCE FOR THE HEARING AND EVIDENCE FOR WITNESSES 9.1 8.12 8.11

9. 46

CHAPTER 19 CHAPTER 110 47

The evidence at the Commissioner’s disposal mainly comprises of direct evidence and disposal mainly comprises of evidence and direct the Commissioner’s evidence at The evidence. circumstantial of the nature the on depend will evidence is appropriate which of process reasoning The ofjudgment the consistent be must Commissioner the Importantly, court. the before evidence to court. with the evidence presented There are considerations which apply specifically to the evaluation of certain parts evidence. In of considering whether the evidence is reliable, the quality of that evidence must of of course, evidence must, The if any. evidence, as must corroborative necessity be evaluated, of of respect in or issue its in case the respect in onus the against particular any evaluated be entirety. by evidence is corroborated must also consider whether the party’s Commissioner The must not lose sight of Commissioner the the trial is the fact that In doing so, other evidence. and the relaxed and evidence are the rules ofconducted in a forum where civil procedure themselves. represent parties In the event of not being able to make a Commissioner of plaintiff has the burden proof. The from absolution grant may he/she parties, respective of the evidence the on based finding a (in a new date the plaintiff but may on a later is unsuccessful that means This the instance. (by has to prove Each party is new evidence. there that case) bring another claim provided of to the satisfaction cases, their respective facts needed to support evidence) the providing the Commissioner. of must be vigilant in the assessment and evaluation Commissioner to eliminate evidence The any possible risk of judgment. making an erroneous his/her case on a balance of plaintiff needs only to prove probabilities. The His/her knowledge ofknowledge His/her ofrules the the oflaw the are general in law the and evidence should Commissioner The a decision. he/she applies to arrive at instruments which only available evidence. evaluate and determine ifHe/she needs to weigh such evidence any of it supports the claims made. of he/she is entitled to that person who has the burden proof must not only prove The the amount due. but must prove judgment, The Commissioner’s duty in a hearing is to adjudicate a dispute between parties who are who are between parties a dispute is to adjudicate duty in a hearing Commissioner’s The judgment based on the evidence He/she gives themselves. the dispute unable to settle the time of with the applicable law. at given by the parties the trial and in accordance EVIDENCE ASSESSMENT BY COMMISSIONER BY ASSESSMENT EVIDENCE 2.1 2.2 2.3 2.4 2.5 2.6 2.7 1.2 1.3 1.1

GENERAL GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 2. 1. CHAPTER 10: EVALUATION OF EVIDENCE OF 10: EVALUATION CHAPTER GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES Generally the burden of proof, in the sense of producing evidence, passes from party to to party from passes ofsense the in evidence, producing of burden the proof, Generally it. prove should an allegation makes that party the Ordinarily, as the case progresses. party both liability and the amount seeking judgment must prove a party that provides law The in his/her favour. a judgment is entered (quantum) before defendant has done something the evidence that his/her through plaintiff must prove The Examples of has the defendant this would be that damages. him/her liable for makes that property; in damage to the plaintiff’s owed; caused an accident resulting failed to pay rent for it. goods without paying and received or ordered of value the - claim his/her of (quantum) amount actual the prove then also must plaintiff The If actual amount the the plaintiff fails to prove limit. the prescribed which should not exceed if alternatively is Commissioner the a lesser amount, is able to prove but of his/her claim, satisfied that a lesser amount has been proven, theCommissioner may enter judgment in of same principle would apply in respect The favour for such lesser amount. the plaintiff’s counterclaims.

BURDEN OF PROOF 3.1 3.2 3.3 3.4

3. 48

CHAPTER 110 CHAPTER 111 49

The defendant has ten days to to days ten has defendant The 60

61 That the letter of demand was properly delivered to the defendant and that 14 days has 14 days has to the defendant and that of delivered the letter demand was properly That lapsed prior to summons having been issued against him/her; the summons; the defendant was timeously served with That and is entitled appropriate) where proven the plaintiff has a valid claim (damages are That the defendant; and same from to recover amount ofThe the claim. ü ü ü ü Judgment is entered in favour ofJudgment is entered the defendant.” Judgment for Plaintiff This judgment in favour ofboth sides. may grant hearing the plaintiff Commissioner after The it. against appeal cannot defendant the and final, is judgment satisfy the plaintiff’s claim and costs as ordered by the Commissioner. costs as ordered claim and the plaintiff’s satisfy Judgment for Defendant The claim if his/her claim. the plaintiff’s the plaintiff fails to prove may reject Commissioner The against plaintiff cannot appeal The counterclaim. the defendant’s may uphold Commissioner this judgment. If the defendant fails to appear at the trial, the court may, upon application by the plaintiff, by the plaintiff, upon application may, the court If trial, the at the defendant fails to appear the court judgment is granted, a default Before default judgment against the defendant. grant the following: the plaintiff to prove may require Specificattention is drawn to situations a where defendant bears a the full e.g. defence onus, for the should be judgment In such an instance there defence. that and proves of payment, simply read would the order Typically, is no counterclaim. defendant even though there “ claim is the “Plaintiff’s to use than recording terminology legally-correct is the more This instance, the from absolution to equivalent is terminology latter the of status the as dismissed”, ofwhich may not have been the intention the Commissioner. the Instance Absolution from a may grant the Commissioner If his/her case, either the plaintiff fails to prove or the defendant a later his/her claim at plaintiff may still present The judgment of the instance. from absolution if to light. evidence comes more hearing, of should be aware the potential for abuse in the Small Claims Commissioners At the same time, a plaintiff In other courts, of avoided. such a judgment and how such abuse is to be Court again. starting before costs defendant’s the settle first must absolution for order an with faced can simply costs and thus plaintiffs a defendant cannot be awarded In the Small Claims Court when in fact they evidence”, they have “further that issue another summons under the pretext should inform the plaintiff that Commissioners In such instances, do not have such evidence. he/she should first obtain allrelevant evidence and not approach the courtfashion. in a piecemeal Default Judgment TYPES TYPES OF JUDGMENTS • •

• •

Section 45.

GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 60 61 Ibid. 1. CHAPTER 11: JUDGMENTS AND ORDERS ORDERS AND JUDGMENTS 11: CHAPTER (or (or in camera 62 GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES the date ofthe date the judgment or order; the amount thereof; the balance of the capital; and costs. the Sheriff’s • • • • Cost Orders Cost in favour of may award plaintiff a successful is the costs a Commissioner only costs order The of service of in respect the sheriff’s the summons on the defendant. incurred Orders Conditional The Commissioner is obliged to enquire whether the debtor is able to comply with the order without If with the order he/she is not able to comply that indicates the debtor without delay. debtor’s the to relating inquiry financial a hold to whether decide will Commissioner the delay, ability to pay in instalments or otherwise. in the judgment debtor to pay the judgment debt and costs may order Commissioner The specified instalments, or suspend the order either wholly or in part on such conditions as to may determine. security or otherwise as the Commissioner The inquiry relating to the possible payment in instalments must be conducted in chambers) and the following must be considered: In the enquiry the Commissioner determines would need to consider the the Commissioner In determining this, judgment debt and costs. the judgment debtor’s ability to satisfy following details - the The defaulting defendant has ten days to pay the claim after the defendant has been informed has been informed the defendant claim after days to pay the has ten defaulting defendant The liability both that requires which (b) 35(1) section to drawn is Attention judgment. default the of cases. in default be proved and quantum should Commissioners ought to be aware that this is a significant from the departure that procedure “win” would ordinarily plaintiffs where Courts to in the Magistrate’s they may be accustomed the liability portion by default, and would only be required to claim prove is their illiquid. quantum This if means their that in the Small Claims in justification of their cause their judgment of evidence must under present oath/affirmation, Court all plaintiffs who seek a default ofaction and the amount their claim. Absent the Plaintiff is where Judgment in instances by the defendant upon application the Commissioner, the plaintiff in court, fails to appear Where judgment claim and/or grants dismisses the plaintiff’s the roll, from the matter either removes it was where the action plaintiff re-institute may The counterclaim. in terms of the defendant’s was a counterclaim. there where dismissed or apply for rescission COURT ORDERS COURT ofan order of payment may make Commissioner money by the judgment debtor in favour The of the judgment Orders creditor. for payment of money must be satisfied within ten days, unless to the judgment creditor. debtor must pay such money directly judgment The otherwise ordered. • •

• Section 39(1).

2. 62 50

CHAPTER 111 CHAPTER 111 51 after the matter matter the after weeks two

the judgment debtor’s full names; full debtor’s the judgment address; and business residential marital status; the number of dependants and their ages; assets and liabilities; and income and expenses; of instalments. dates the proposed • • • • • • • has been heard. has been heard. RESERVED JUDGMENTS RESERVED of speedy resolution disputes is one of process. ofThe the strengths Court the Small Claims and then judgments sometimes reserving with Commissioners Challenges have been experienced not delivering same as speedily as is required. It than later no but possible, practically as is soon as be delivered should is therefore advised that reserved judgments COURT BOOK COURT The current practice is that the Commissioner simply records the terms of cover. the order on the file The Clerk must make a copy of the court file coverexpressing the terms of the order and ensure court The recorded. the outcome of are book wherein proceedings in a court this is inserted that the reason, other or one for when, or public the by made are enquiries when clerk the assists book file has been misplaced.

GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 3. 3. 4. by judgment debtors payment by judgment debtors voluntary into his/her financial position and may order that the judgment judgment the that order may and position financial his/her into in camera GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES If the judgment debtor still fails to satisfy the judgment, the matter is transferred to the the to is transferred the matter If the judgment, the judgment debtor still fails to satisfy Act, Courts by the Magistrate’s as prescribed procedure, for an execution Court Magistrate’s 32 of 1944. of would then be advised to obtain a warrant against any execution judgment creditor The of the judgment debtor. property moveable process. with the execution judgment creditor clerk must assist the The who must enforce of must submit the warrant to the Sheriff, execution judgment creditor The it. The warrant empowers the sheriff to own fees. in addition to the Sheriff’s claim to cover the plaintiff’s in order defendant, seize any attachable property belonging to the When the Commissioner grants judgment for the payment of a sum of money, the court the court of judgment for the payment grants a sum ofWhen the Commissioner money, may conduct a financial enquiry into the judgment debtor’s financial position to comply with the judgment. he/she is unable that indicates if the latter The importance of the enquiry whether the debtor is able to pay without delay in terms of of provisions the section 39 be that It is important enough. be stressed section 39 cannot to facilitate order in possible, as as effectively used due Court, of that the judgment into to converting Magistrate’s the without having to resort to the obvious cost implications. against the party for the payment of gives judgment the court a sum ofWhere money, the sum of was made (the judgment debtor) must pay to the whom the order money directly If of judgment debtor wants to pay the judgment debt to the clerk the judgment creditor. to section 38 ofAct). (refer the creditor to the judgment he/she must be referred the court, judgment for the payment of grants a court a when that Section 39(1) ofAct provides the sum the of court must money, enquire from the judgment debtor whether he/she is able to must the court If he/she is unable to do so, that he/she indicates comply with the judgment. inquiry an conduct debtor pay the judgment debt and costs in specified instalments or An otherwise. order so or otherwise as suspended on such conditions as to security made may be wholly or partially may determine. the court in terms ofIf was issued by the court debtor may within section 39(2) the judgment no order to the offer a written make judgment for the payment of10 days after a sum of money, otherwise or instalments specified in costs and debt judgment the pay to creditor judgment the clerk If by the judgment creditor, is accepted to section 40 of such an offer Act). (refer the offer, the ofby accompanied request creditor judgment the written the at ofmust, court the with the offer. to pay the judgment debt and costs in accordance the judgment debtor order of the clerk of issued by be deemed to be an order shall the court Such an order the court ensure he/she must the clerk of issues such an order, Before in terms of the court section 39. has not yet issued an order. the court that ENFORCING THE JUDGMENT 2.1 2.2 2.3 2.4 ENQUIRY INTO FINANCIAL POSITION OF THE JUDGMENT DEBTOR JUDGMENT THE POSITION OF FINANCIAL INTO ENQUIRY 1.1 1.2 1.3 1.4

2. 1. CHAPTER 12: STEPS FOLLOWING JUDGMENT FOLLOWING 12: STEPS CHAPTER 52

CHAPTER 112 CHAPTER 112 53

The clerk should advise the plaintiff of the costs involved in executing a writ of execution. should advise the plaintiff clerk of a writ ofThe costs involved in executing the execution. is to be enforced. the execution to the Sheriff in whose area addressed is warrant The debtor, belonging to the judgment of for the surrender is any movable property warrant The ofor for the ejectment the property. from the judgment debtor the if or suspended a notice from can only be withdrawn the sheriff receives Such process judgment creditor. it is issued. of must be initialled by the clerk before in the warrant execution Any alterations of in the warrant judgment debtor is named execution, the correct that clerk must ensure The becomes invalid. otherwise the warrant if judgment creditor. to do so by the requested the warrant, clerk will only re-issue The WHERE JUDGMENT IS GRANTED IN DEFENDANT’S FAVOUR IS GRANTED IN DEFENDANT’S JUDGMENT WHERE to amount the claimed pay to not liable is he/she favour, Ifdefendant’s the in granted is judgment to he/she may pursue the matter Ifhis/her counterclaim, the defendant succeeds with the plaintiff. judgment as outlined and execute to enforce instance the processes In that the judgment. enforce above may apply. PROCESS FOR EXECUTION OF JUDGMENT OF FOR EXECUTION PROCESS 3.1 3.2 3.3 3.4 3.5 3.6 3.7

GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 4. 3. However, the Commissioner’s decision may be taken decision may be taken the Commissioner’s However, 63 GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES Absence of jurisdiction; of or corruption on the part malice or the Commissioner; bias, in the case, Interest in the proceedings. irregularity Gross ü ü ü on review to the High Court on the following grounds: - - on the following grounds: to the High Court on review in proceedings the method used during the the litigants attack whereby is the process review A result/ to complain about the proceedings use review litigant cannot The the Small Claims Court. clerk the at the of review the files) (thus notes only litigant The Commissioner. the by made finding be may only Review A High Court. the at heard is review to application but the Court, Small Claims of within Section 46 of falling Act. used by a litigant in respect matters the Small Claims terms in must, which affidavit, founding a and motion of notice a of way by review on taken is case A be served on all parties. of Rules, 53(1) of Rule the High Court liaises with and process is to be actively involved in the review Clerk ofThe the Small Claims Court all the The parties. Clerk receives the result of the outcome and notifies theCommissioner of the results. especially if against the Commissioner. sought the review may oppose costs are Commissioner The It is, may decide to do so. the Commissioner if decides not to oppose the review, Even the State considers doing so if only is sought against a Commissioner suggested that a costs order however, Otherwise him the or Commissioner should her. simply file his or herreasons and/ orresponse to decision. High Court’s will abide by the reviewing he or she that and state the review A judgment of the Small Claims Court cannot be appealed against, so no litigant can appeal so no litigant can appeal against, cannot be appealed of judgment A Court the Small Claims ofagainst the judgment the Commissioner. Section 45.

2. 3. 4. 5. 1. CHAPTER 13: REVIEW CHAPTER 63 54

CHAPTER 113 CHAPTER 113 55

the Commissioner who presided during the proceedings; who presided the Commissioner of court the Chairperson ofAdvisory Board the relevant the of is; and the seat the court in whose area Attorney State the relevant Development. Justice and Constitutional the Director-General: (ii) (iii) (iv) who to the clerk ofthe Small Claims Court, reasons his/her written must send Commissioner The the relevant to the Chairperson ofin turn must send copies of Board, Advisory the the reasons Development. and Constitutional Justice and the Director-General: Attorney State copy of be a certified file must the court received, are reasons written When the Commissioner’s of date must be endorsed dispatch The of the High Court. mail to the Registrar sent by registered register. in the review Attorney to the State a recommendation make must in the meantime Advisory Board The a in turn must make Attorney State The opposition to the application. possible regarding who decides Development, Justice and Constitutional to the Director-General: recommendation expense or not. State at opposed must be application in the final instance whether the Commissioner must be the Registrar, from the received copy of file is When the certified the court register. in the review be entered decision must also The informed of the decision. The particulars of the case must be entered in the review register. register. of in the review particulars entered the case must be The be and documents must affidavits together with all supporting for review application The be Voluminous papers should Office. National at Law Enforcement to the Director: submitted ofattention for the official. the above-mentioned Office to the National immediately couriered Commissioner within by the reasons of and a transcript proceedings require will further office This given by the may only be Attorney to the State Instructions of the date service. 14 days from Office. National at Law Enforcement Directorate: together with a copy of be delivered file must immediately the court copy of notice, A the review mail to - by hand or sent per registered (i)

GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 4. 5. 6. 7. 1. 2. 3. Steps to be taken by the clerk upon receipt of receipt the clerk upon by of a notice taken to be Steps review

GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES Parties involved in the case; Parties of number and date trial; Case of Name and address the Commissioner; of journey; Purpose in; travelled Vehicle Distance of journey; and tariff must be made of (mention to the State the engine volume determined according Costs and tariff in cent per kilometre). • • • • • • The following information must be mentioned in the application: following information The • When a Commissioner has to travel to a nearby town and requests payment of his/her travelling writing for the payment of in the clerk of the application with must deal such the court costs, office. manager and the regional via the court expenses travelling If the clerk of the court or a legal assistant gives incorrect legal advice or makes an error with the the with an error Ifmakes or advice legal the clerk of gives incorrect legal assistant or a court the not be held liable for any he/she may other document, or statement of a summons, preparation faith. he/she acted in good that provided by a party, damage suffered is Commissioner A for any damage. a party not be held liable to compensate may also State The similarly indemnified against any action that may be brought against him/herwhilst carrying out has not acted mala fide or maliciously. he/she that provided a Commissioner, his/her duties as

2. 1. 2. of expenses Commissioners Travelling 1. CHAPTER 14: MISCELLANEOUS 14: MISCELLANEOUS CHAPTER 56

CHAPTER 114 CHAPTERSYNOPSIS 1 OF CASE LAW 57 1984, s46(c). 1984, of However, this object this object However, of the Act.

Review Proceedings Review raise raise the issue of identity where clarification of the position in to have raised and decided the issues as the issues as and decided motu to have raised of mero the failure the Commissioner that , SMALL CLAIMS COURT, GERMISTON, GERMISTON, CLAIMS COURT, SMALL , v COMMISSIONER LTD (PTY) RENTALS CAR NATIONWIDE 568 (W) - 1998 (3) SA ANOTHER AND to it weigh evidence, relevant the to listen to required is Court Claims Small a in Commissioner The to the law. a conclusion according and reach is probable determine what to with the jurisdiction in a Small Claims Court Section 36 ofAct invests the Commissioner the by him or her in the absence of any judgment granted whom that the person against rescind the provided a judgment, rescind to empowered is Commissioner The granted. was judgment applicant has showed The sufficient discretion cause. of theCommissioner is interexercised, alia, apply to properly by the Commissioner Failure or absence ofby the presence good cause shown. reviewable. the proceedings his/her mind will render he/she has applied his/her mind to can be no criticism of where there the Commissioner that Held, to the facts either in relation a conclusion which is incorrect reached but nonetheless these matters or the law. No more is required of him/her than that he/she should properly conclusion being reached. apply than not in the correct often more which ought to result his/her to the matter, mind he/ of or more to one all issues, the at mind his/her apply properly he/she fails to where However, function perform the to entirely failed has he/she then because irregularity, gross a commits she will then be reviewable. proceedings The of him/her. which then was required of 157 (0) - Adjudication cases ANDERE 1989(4) SA EN v SELEKA SMIT fairly a Commissioners give to Act the of 27(2) and 26 section in intending Legislature - Proceedings cases. of adjudication inexpensive an and speedy to effect to order in hand free of the quality of that the administration justice is prejudiced. should not be so predominant essence which in by (1) following a procedure had erred the Commissioner found that court The contained in section 30 ofAct having without the provisions the amounted to the joinder of parties, circumstances in the particular and which joint hearing attention to the applicant’s been brought judgment in favor of plaintiffs of to the applicant; (2) granting the three the case was prejudicial of mistake a hearing by law committing (3) arbitrary; which was clearly amount for an respectively ofthe case notwithstanding non-compliance with the provisions section 30 of the Basic Conditions of Employment Act,1983. Held, Held, to the identity of had been an the owner of in the proceedings the rights sought to be enforced of within the meaning s 46(c) to the proceedings with regard irregularity - Uncertainty 760 (D) - Uncertainty 217 (D)/1997 (3) SA SA All [1997] 2 ANOTHER AND NO v PILLAY SILVA DA as to identity of instituting action party of in respect a an individual partner by Claims Court action is instituted in a Small an Where the the identity of as to exists instituting the action, uncertainty debt and the party partnership to suo motu ought Commissioner the issue raise to failure The decision of is fundamental to a just and lawful case. the this regard Act 61 Courts in the Small Claims as contemplated irregularity constitutes a gross GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 3. 2. 1. SYNOPSIS OF CASE LAW CASE OF SYNOPSIS only a natural person may institute an action and a juristic institute an action and a juristic person may only a natural GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES that building structures that did not perform the function of that a form of building structures that dwelling or shelter that the Commissioner would be obliged to stay or stop the proceedings in the Small Claims in the Small Claims proceedings the stop be obliged to stay or would Commissioner the that that provided the procedural requirements had been met, the owner was entitled to approach approach to entitled was owner the met, been had requirements procedural the provided that that the Small Claims Court Commissioner had jurisdiction to deal with the counterclaim and and with the counterclaim had jurisdiction to deal Commissioner the Small Claims Court that Held, that the Commissioner’s aforementioned conduct amounted to an irregularity as intended as intended to an irregularity amounted conduct aforementioned the Commissioner’s that Held, the aside and that should be set the judgment that Act, 46(c) ofin section Court the Small Claims adjudication. for proper back to the Small Claims Court cases be remitted 454 (SE) –Jurisdiction 1987(2) SA ANOTHER AND v SHER NO SWART cannot determine claims Claims Court a Small In terms ofAct, section 22 of Small Claims Court the brought a defendant in a claim Where even if consent thereto. parties the beyond its jurisdiction, the claim and and the plaintiff, against has a counterclaim Small Claims Court against him in a the Small of and depend upon a determination the same issues, interrelated are counterclaim the jurisdiction. if exceeds the matter the counterclaim cannot hear Claims Court Held, and the claim against the plaintiff to enable the defendant to bring his/her in a higher court, Court Should in the form ofplaintiff the higher court would be able to advance his claim in counterclaim. it him/her, by conducted proceedings the stop or stay to refuse or fail Commissioner presiding the in terms ofAct. s 46 (a) of by the High Court would be subject to review Small Claims Courts the INDUSTRIES MOTOR t/a NATAL LTD (PTY) INVESTMENTS MOTOR RAMAN v BARLOW 606 (D) - Jurisdiction 1999 (4) SA AND OTHERS PROSPECTON, In terms of section 7(1) of the Act, section 7(1) should not be However, to person an may action become only a as party a defendant. as a defendant, the court before having been brought a juristic person, as precluding interpreted from raising a counterclaim. Section 7(1) should who is a juristic person. a “plaintiff in reconvention” be “defendant” interpreted to include within the concept the court on the basis of ownership and the respondent’s unlawful occupation. Unless the occupier occupier Unless the unlawful occupation. ofon the basis the court the respondent’s ownership and would in principle, the owner, to the eviction order, relevant opposed or disclosed circumstances eviction. for be entitled to an order to give the judgment in favour ofto give the judgment in favour the defendant is a juristic the defendant notwithstanding that person. - Unlawful 113 (5(A) - Eviction 2003 (1) SA JIKA v ANOTHER AND BEKKER v NGCOBO, NDLOVU occupation of of and Unlawful Occupation Illegal Eviction “Unlawful occupiers” in terms of the Prevention in occupation but continues to remain property Act includes an owner who has mortgaged Land despite his/her right of and a tenant by a sale in execution ownership having been terminated the property. to vacate but who refuses lawfully terminated whose lease for humans did not fall under the Act. Since juristic persons did not have dwellings, their unlawful their unlawful Since juristic persons did not have dwellings, Act. for humans did not fall under the Act. by the possession was not protected

4. 5. Held

Held, Held, 6. Held, 58

CHAPTERSYNOPSIS 1 OF CASE LAW CHAPTERSYNOPSIS 1 OF CASE LAW

59 further that that further Held, Held,

SMALL CLAIMS COURT - BUTTERWORTH & OTHERS [2007] [2007] & OTHERS - BUTTERWORTH CLAIMS COURT SMALL THE COMMISSIONER CRISH v ESTHER ZAECHC 114 The applicant seeked to impugn the constitutional validity of that basis sole ss the on impugned 7(2) is 7(2) sec of and validity constitutional the 45 place first the In of Act. the Courts Small Claims and their constitutional right to legal representation Court it denies litigants in the Small Claims In the second place the constitutional validity of 45 sec denying them justice. effectively therefore of who is aggrieved by an adverse judgment it denies a party is impugned on the sole basis that on contended It was therefore on appeal. judgment of that to take the Small Claims Court the right behalf of of the denial applicant that the as enshrined these fundamental rights infringed her rights 108 ofin sections 9 and 35 of 1996. Act, of the Constitution ofAfrica the Republic South do not infringe any of Act under consideration the the sections of Held that the Small Claims Courts rights alleged by the but applicant, demonstrate a justification of the limitation which satisfies the in terms of section 36 of required the Constitution. threshold R1 799 which was not recovered. This means that if the full amount of should recover R300. plaintiff’s damage amounts to R2 000, she of the insurer Magistrate’s Servern was the defendant in the a motor vehicle driven by appellant, The as the plaintiff injuries had sued it for damages for pedestrian the respondent where Court R1 to was reduced claim was for R2 000 but the summons The night. at sustained in a collision a cause of damages was partly negligence the plaintiff’s Servern’s found that magistrate The 000. appellant The R150. granted and 000” R1 least “at at damages the assessed He 15%. at it fixed and against cross-appeal a was there and negligent been had Servern that finding the against appealed ofthe award only R150. Held, that the findingmagistrate’s withregard to negligence should be upheld. the plaintiff to R300. was entitled and accordingly the damages amounted to R2 000 - Action for damages 326 (C) - 1973(2) SA v BROWN BPK VERSEKERINGSMAATSKAPPY SANTAM of part the Act,1944 is that Courts of of section 38 (2) interpretation correct Magistrate’s the The of part waived, was which that claim the from subtracted be must granted not is which claim the thereof should be R2 000 and 15% damages be granted, is to a plaintiff’s for example, if, and that, from must be subtracted the R1 000 which was waived, that and must be granted, the full R300

GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 8. 7. 1 September 2019 10% it was held held was it 1 January 2019 to 31 August 2019 10.25% 1 May 1 May 2018 to 31 December 2018 10% 1 September 2017 to 30 April 2018 10.25% 1 May 1 May 2016 to 31 date August 2017 10.5%

1 March 1 March 2016 to 30 April 2016 10.25% GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 8 January 8 January 2016 to 29 February 2016 9.75%

1 August 1 August 2014 to January 7 2016 9% 1 October 1 October 1993 to 31 July 2014 15.5% 15.5% AS FROM 1 OCTOBER 1993 1993 FROM 1 OCTOBER AS 15.5% 2014 AUGUST 1 AS FROM 9% 2016 JANUARY FROM 8 AS 9.75% AS FROM 1 MARCH 2016 10.25% 2016 AS FROM 1 MAY 10.50% 2017 AS FROM 1 SEPTEMBER 10.25% 2018 AS FROM 1 MAY 10% 2019 JANUARY AS FROM 1 10.25% 2019 AS FROM 1 SEPTEMBER 10% Davehill (Pty) Ltd and Others v Community Development Board 1988 (1) SA 290 (A) 290 SA 1988 (1) Board Development Community v and Others Ltd (Pty) Davehill that the Minister may, from time to time, prescribe different rates of interest but that it had no effect it had no effect of but that rates interest different prescribe time to time, from the Minister may, that Section 2 of the Prescribed Rate of Interest Act, 55 of 1975 stipulates that a “judgment debt” for ofsum a ofpurposes Act means ofterms in money due that this and order an a judgment or of date judgment. is payable from course the interest in the ordinary therefore was rate the 1st ofAugust 2014 when the interest after granted judgment was therefore Where reduced to 9% per annum or after 8 January 2016 when the interest rate was increased to 9.75% 1 May 2016 when or after , to 10.25% was increased rate 2016 when the interest 1 March or after applies interest that stipulate any judgment would have to to 10.5%, was increased rate the interest will also apply to the amount of This of the date of judgment to date from payment. as prescribed entitled to this interest plaintiff lege automatically is ex The costs for which judgment was granted. of date of judgment even iffrom as part the judgment on the file cover. it is not reflected Section 1(1) of the Prescribed Rate of Interest Act,1975 stipulates that any is not governed debt the interest where prescribed, the rate in terms ofAct at for interest this amount bears a liquidated such that the time at prescribed the rate at between the parties Act or an agreement by another begins to run. interest In • • • • • • • • •

DATE RATE CHANGE IN RATE OF INTEREST UNDER PRESCRIBED RATE OF INTEREST OF INTEREST RATE UNDER PRESCRIBED INTEREST OF IN RATE CHANGE APPLICABLE AND CASE LAW: ACT • • • • PRESCRIBED RATE OF INTEREST DATE AND RATE CHANGES AND RATE DATE OF INTEREST PRESCRIBED RATE 60

CHAPTERCHANGES 1IN INTEREST CHAPTERCHANGES 1IN INTEREST

61 mora 1988 (1) SA 290 (A) 1988 (1) SA

BOARD DEVELOPMENT COMMUNITY interest, and that its provisions, in particular s 1(1) and (2), governed the applicable rate. governed the applicable rate. s 1(1) and (2), in particular its provisions, and that interest, interest due to the appellants was to be was to be due to the appellants interest which mora at was the rate issue between the parties The to applied 1975 of 55 Act Interest of Rate Prescribed the that cause common was It calculated. DAVEHILL (PTY) LTD AND OTHERS v AND OTHERS LTD (PTY) DAVEHILL Where judgment was therefore granted before the 1st of August 2014, the 8th of January 2016, the the the 8th of 2016, January the 1st of August 2014, before granted was therefore judgment Where any judgment would was changed, 1st of 2016 or the 1st of rate March May 2016 when the interest the date annum from per rate prescribed the applies to the debt at interest that have to stipulate reduction of because of rate of is not lowered the interest to date judgment payment and the rate or the 1st of 2016 on the 8th of March 2016, January or the increase on the 1st ofAugust 2014, or the 1st of May 2016, but stays at the earlier rate per annum until execution is finalized and the judgment debt is paid up. the 1st of the 8th of March 2016, January the 1st of August 2014, after judgment is granted Where 2016 or the 1st of of cause court 2016 and a proper May action is made out on the papers before the 1st ofAugust 2014 or the was before began to run and the date on which day interest indicating a at would be granted 8th of interest 2016 or the 1st ofJanuary 2016 or the 1st of March May 2016, finalized is execution until annum per rate that at stay would and annum per prescribed earlier rate made by the court. will not necessary apply to the cost order This and the judgment debt is paid up. on which day interest cause of court a proper action is made out on the papers before Where the 1st of August 2014 or the 8th of 2016 or the 1st was after January began to run and the date per annum rate the prescribed at of 2016 or the 1st of would be granted March interest May 2016 applicable at that stage and would stay at that rate per annum until execution is finalized and the judgment debt is paid up. Section 2A applies only to unliquidated amounts or claims debts and stipulates flowinghow forthe cause interest proper exampleis a court, to frombefore papers be the on damages calculated out, make in must interest respect requesting party ofthe Here an debt. unliquidated amount/ ofterms run in shall payment ofon which date to the interest action as that claimed and debt is the on which payment ofof the date the debt is claimed by the service on the section 2A(2)(a) from the 1st If is before this date is the earlier. debtor of date whichever of a letter demand or summons, ofAugust 2014 or the 8th of the 1st of 2016 or 2016 or the 1st ofJanuary March May 2016 interest will run at the earlier prescribed rate per annum until the date of final change even if per annum despite the rate payment rate to the new prescribed or increase will not reduce of the debt and the 1st ofAugust 2014 or the 8th of happens after 2016 or the 1st ofJanuary 2016 execution March If the 1st of or the 1st ofAugust 2014 or the 8th of or the 2016 is after January this date May 2016. per annum rate 1st of the new prescribed 2016 or the 1st of will run at March May 2016 interest ofuntil the date final payment of the debt. on the rate applicable to interest which had already begun to run and section 1 does not provide not provide section 1 does to run and begun already had which to interest applicable on the rate rate prescribed made to the with adjustments to time in accordance time from to vary for the rate fixed is run to begins interest when time the at 2 section under prescribed rate The Minister. the by adjustments made to the prescribed the even after or lowered and cannot be varied rate such at Minister. by the rate GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 1. • • • LAW: CASE APPLICABLE • GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES THE MV SEA JOY 1998 (1) SA 487 (C) 487 1998 (1) SA JOY SEA THE MV v MV SEA JOY JOY SEA MV A A new section, s 2A, was introduced into the by Prescribed Rate alia, inter of determined, as debt Interest unliquidated Act,1975 every on interest (the section that ofAct) terms In on 1997. April 5 on the debtor of on which payment is claimed by service the date a from may be awarded a court is the earlier. whichever demand or summons, Until 5 April 1997 interest on unliquidated by a damages South African would court until it not was liquidated by ordinarily agreement or have judgment. It was been argued by the long before cause of since the plaintiff’s the action had arisen in September 1992, granted defendant that amendment was effected, and since the parties had reached agreement on the quantum date. the latter of should run from awarded any interest April 1997, damages only on 24 plaintiff’s the the to to apply the provisions prior against retrospectivity against the presumption it would not offend that arisen Held, have might action of cause a though Even instance. this in amendment 1997 the of between agreement by determined was debt unliquidated the when be only would it amendment, in terms tribunal that, or arbitration an arbitrator of Court law, (as in this instance) or by a the parties claim. would on unliquidated the be his/her ofcreditor able interest previously to recover Act, the (At 507G/H and 507A--C.) on interest pay to liable defendant the hold to equitable and just be not would it that further, Held, summons although assessed, have to expected be reasonably not could it quantum whose claim a summons that been arrested, had been served on 8 September 1992 when the defendant had of particulars its in only was It claim. plaintiff’s the of quantum the of bones bare the only contained the enable will as manner such ‘in damages its out set had plaintiff the that 1993 August 27 of claim defendant reasonably to assess the quantum thereof’ (Rule 18(10) of the Uniform Rules of Court). (At 507H--508B.) by s 2A(5) ofAct interest of conferred the the discretion in the exercise that accordingly, Held, (At 508E.) to the plaintiff. August 1993 should be awarded 27 running from The Court held that the rate prescribed under ss (2) at the time when interest begins to run governed to run governed begins time when interest the at under ss (2) prescribed the rate that held Court The time from Minister of the that could, Justice (ss (2) provided ofon interest the calculation interest to time, prescribe a rate of interest for the purposes of ss The (1)). rate was fixedat that time and with time to time in accordance to vary from for the rate constant - ss (1) did not provide remained by the Minister ofJustice in terms of rate ss (2). to the prescribed adjustments made had of therefore rates interest different prescribe time to time, from the Minister may, that fact The run. begun to which had already interest applicable to on the rate no effect The only exception to the above method of calculation was where ‘a court ofon the law, grounds otherwise’. orders debt, to that of relating circumstances special as a special circumstance upon this consideration appellants’ reliance held that therefore Court The was without substance. The Court finallyheld that as began to run on the outstanding statutory interest on which mora the date 1985, January on 12 prescribedthe rate interest of applicable rate. that at fell to be awarded accordingly interest mora was 11 % per annum, interest,

THE 2. 62

CHAPTERCHANGES 1IN INTEREST CHAPTERCHANGES 1IN INTEREST 63

2001 (4) SA 551 (SCA) 2001 (4) SA Ltd and Others v Community Development Board 1988 (1) SA 290 290 SA (1) 1988 Board Development v Community Ltd and Others Kudu Granite Operations (PTY) LTD v Caterna LTD 2003 (5) SA 193 (SCA) 2003 (5) SA LTD v Caterna LTD (PTY) Operations Granite Kudu 522 NCK Inc 2013 2 SA Joubert Venter Du Plooy v 108 [2014] ZASCA Minister ofThe Police v Woji Waterhouse v Price Association Breeders’ Thoroughbred • • • • (A) at 300I--301F qualified. Held, given accordingly, that the prescribedrate ofinterest on 27 and had remained to 15,5% a month later had been 18,5% but had dropped September 1993 (At 508H--I.) at the lower level. should be fixed interest that constant thereafter, Held, further, as to the rate at which the interest should be calculated, that, although it had been it had been although that, be calculated, should which the interest at to the rate as further, Held, fixed run to began interest when time the at Act the of 1(2) s under prescribed rate the that held the provisions and that period, over the entire should be calculated which interest at the rate would that not be in the the question case interest was where on an of s peremptory, 1(2) were unliquidated debt awarded under s 2A, in terms of which the Court had a discretion as to ‘the (At 508F--H.) accrue’. shall which interest at rate dictum in Davehill (Pty) The GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES Also see: GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES STEP BY STEP GUIDE ON HOW TO INSTITUTE A CLAIM – Small Claims Court A INSTITUTE TO GUIDE ON HOW STEP BY STEP CLAIM BROCHURE OWN YOUR – INSTITUTE CLAIMS COURT SMALL FAQ’s Small Claims Court , 2008 Edition , to the Small Claims Court Guide A Justice College: 2 Edition 1990 (out of print) in the Small Claims Court SAS: You Strauss, (1986) (out of Small Claims Court print) I M: The Bredenkamp, Jones and Buckle: Civil ofPractise the Courts Magistrate’s in South Africa: Volume 1 Eighth Edition DEREBUS 19 Small Claims Courts: Frequently Asked Questions, Cape Bar bar/small-claims-court/small-claims-courts-faq/) (https://capebar.co.za/cape- Small Claims Courts Act, 1984 (Act 61 of 1984) Act, Small Claims Courts 1985 of in Respect Small Claims Courts, Matters Regulating Rules

“Paying a Small Claims Court debt in September 2012: 34-36 [2012] DR, instalments.” Brochures: Department of Development Justice and Constitutional Department Brochures: 3.1. 3.2. 3.3. 2.1. 2.2. 2.3. 2.4. 2.5. 2.6. 1.1 1.2

Publications Legislation FORMS and ANNEXURES: See the forms as contained on www.justice.gov.za 3. 2. 1. SOURCES OF REFERENCE SOURCES 64

CHAPTERSOURCES 1OF REFERENCE CHAPTERPRO FORMA 1 ORDERS 65

64 Date Interest thereon at the rate of [state rate]% a year from [state date] until date of until date date] payment. [state from a year of rate]% the rate [state at thereon Interest fees] only sheriff’s in the sum of amount – presently Costs R[insert Payment of the sum of amount]. R [state Payment These examples are intended only to provide a basic guide to what are minimum requirements. are a basic guide to what intended only to provide are examples These GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 64 3. Default judgment/judgment for the plaintiffDefault judgment/judgment for: 1. 2. By far the most common judgment for the plaintiff, whether by default or at the end of a trial, is a is a the end of by default or at whether a trial, common judgment for the plaintiff, By far the most judgment amount, i.e. of judgment and it will usually consist money elements, three straight-forward and costs. interest Money judgment ______PRO-FORMA ORDERS IN THE SMALL CLAIMS COURT THE SMALL IN ORDERS PRO-FORMA Print name of Commissioner Print Signature Signature GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES Date The defendant is ordered to deliver the [e.g motor vehicle with registration no. xxx, television set television set xxx, no. with registration to deliver the [e.g motor vehicle is ordered defendant The [or by a specified date]. the plaintiff xxx to forthwith with serial no. fees]. only sheriff’s to pay costs in the sum of – presently amount [insert is ordered defendant The

2. Signature name of Commissioner Print 1. Far less common will be orders for specific performance, e.g. for specific performance, common will be orders less Far Judgment for specific performance for specific Judgment 66

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Date The defendant is to be ejected from the commercial premises described as [insert full and correct correct full and described as [insert premises the commercial is to be ejected from defendant The [or by a specified date]. description] forthwith to pay costs in the sum of amount]. [insert is ordered defendant The Print name of name Commissioner Print In cases of orders for specific performance, it is important toimmovable, involved describeas accurately theas property,possible movablein or order to enable the sheriff to execute on the should appear a and full address In the case of the correct premises commercial warrant correctly. and order in the case of number a or registration serial movables, number should Ifbe used. those are not available, the Commissioner should consider how the relevant property can described on a warrant. be uniquely Signature Signature GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 2. 1. Ejectment from commercial premises commercial from Ejectment GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES Date Signature Signature name of Commissioner Print The judgment debtor (defendant) is ordered to pay the judgment debt, including interest and and interest including judgment debt, to pay the debtor (defendant) is ordered judgment The (plaintiff) creditor judgment the to ofinstalments monthly in amount] [insert R than costs, less not be less than such instalment. the final instalment may that provided each, The first such instalment is to be paid on or before [date] and the following instalments are to be seventh etc] day ofeach succeeding month. the [first, paid on or before balance then outstanding will the full In the event of instalment not being paid timeously, any one against the process execution with the payable and the plaintiff may proceed become immediately defendant.

2. 3. 1. In terms of section 39 of the Act, when a money judgment is which granted, will be the most frequent judgment the now defendant, the from enquire to obliged is Commissioner the plaintiff, a for judgment and if delay without be paid debt can whether the judgment inability an indicates the defendant debtor, judgment the that order an in result frequently enquiries Such obligatory. is enquiry financial a so, do to of example and the following is an debt is paid in instalments such an order: Order for deferred payment for deferred Order 68

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Date Date Judgment for the defendant. fees]. sheriff’s for the defendant in the sum of the defendant may have incurred Costs Rxxx [where Absolution from the instance. Absolution from fees]. sheriff’s in the sum of for the defendant may have incurred the defendant Costs Rxxx [where GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES 2. 1. Where the evidence leaves the court undecided, the appropriate judgment is absolution from the the is absolution from judgment the appropriate undecided, the court evidence leaves the Where e.g. this specifically, to state appropriate instance and it is Orders dismissing an action dismissing Orders 2. Signature name of Commissioner Print 1. Where a defendant has actually proved a defence in respect of which the defendant bore the onus e.g. of e.g. the onus a defence in respect defendant bore which the a defendant has actually proved Where should be: the order ofthat payment, Signature Signature name of Commissioner Print GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES Date Interest thereon at the rate of [state rate]% a year from [state date] until date of until date date] payment. [state from a year of rate]% the rate [state at thereon Interest fees]. only sheriff’s in the sum of amount – presently Costs R[insert Payment of the sum of amount]. R [state Payment (b) (c) The plaintiff’s claim is dismissed. plaintiff’s The for: for the defendant Judgment in reconvention (a) Bear in mind that the financial enquiry requirement will also apply to a judgment in reconvention. will also apply to a judgment in requirement the financial enquiry in mind that Bear Signature Signature name of Commissioner Print

2. 1. Where the plaintiff’s claim fails and the defendant succeeds in proving a counterclaim (also referred to to referred (also a counterclaim succeeds in proving claim fails and the defendant plaintiff’s the Where will usually be: then the order as a claim in reconvention) Counterclaims 70

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Determine the law relevant to the issues. Determine the law relevant Identify the underlying principle and apply the law to the facts. for your predilection. reasons and give full your finding clearly Formulate Must sometimes pass a value judgment. Probabilities of conflicting versions should be compared. of conflicting versions should be compared. Probabilities of ofUsually both the credibility the witness and the probabilities the case should be together. considered Where the probabilities are so evenly balanced that no positive finding can be made on the case may have to be decided on the onus of proof and whether it was the evidence, or not. discharged Note contradictions especially where the contradictions relate directly to the issues in the the issues in the to directly relate the contradictions especially where Note contradictions by a witness. lie or honest mistake Distinguish between a deliberate case. of in the outcome interest Do any witnesses have a vested the case? and character upon the general permissible consider well-founded attacks Where ofcredibility a witness. be may evidence documentary available submit to or witness essential an call to Failure held against a party. Summarize the witness evidence as well as any documentary proof. Refer to corroborating corroborating to Refer proof. documentary any as well as evidence witness the Summarize verbatim. evidence but don’t repeat

An assessment of the legal position — — — — Evaluation ofEvaluation versions conflicting — — — An assessment of evidence the — — — — A summary ofA the evidence — A brief description of the parties and of the nature of the case should be given. This is the most most is the briefThis A description of of and of the parties the case should be given. the nature decision. of forms the basis of because it crucial part the review the court’s Commence by setting out the undisputed facts and then proceed to make issues. disputed factual findings on the To make a particular finding ofconvinced of fact, the correctness ofProof upon a a finding. ofpreponderance probability is what Commissionerthe does notis required. havecompletely be to • • • • • • • GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES Reasons for judgment follow four stages Reasons It is important to indicate that reasons are submitted merely to assist the reviewing High Court in its in its High Court the reviewing to assist merely submitted are reasons that to indicate It is important finding. Review reasons reasons Review Respondent Second First Respondent Respondent First

Small Claims Case Number ______/__ Small Claims Case High Court Case Number ______/__ Number Case High Court GUIDELINES FOR COMMISSIONERS AND CLERKS OF THE SMALL CLAIMS COURTS CLAIMS THE SMALL OF CLERKS AND COMMISSIONERS FOR GUIDELINES Applicant

CC – Clerk ofCC the Small Claims Court Attorneys Applicant’s Respondents Advisory Board ______Commissioner Dated at ______on this the ______of at Dated ______20___

______REASONS REVIEW IN THE SMALL CLAIMS COURT FOR THE DISTRICT OF ______HELD AT ______AT OF ______HELD THE DISTRICT FOR CLAIMS COURT THE SMALL IN ______Review Reasons: Example Reasons: Review

______Commissioner Small Claims Court In the matter between: In the matter and ______72

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