How and when to use the small claims court

The small claims court (SCC) is for any natural person who wants to institute a minor civil claim against someone else. Juristic persons, for instance a company, cannot institute claims in the SCC, but only file a counterclaim.  You can also claim against companies and associations. However, the claims are limited to amounts that are less than R 15 000. This excludes the State, meaning a person cannot make a claim against a local municipality, for example. Claims made in the SCC are done quickly and cheaply without having to use an attorney and anyone, except juristic persons, are allowed to use them. The SCC is located in every Magistrate’s Court.Read more about the SCC on The Department of Justice and Constitutional Development’s website: justice.gov.za.

Where do I start?

Before running to the court to make a claim, first contact the person you intend to claim from (“the Defendant”) and ask them to fulfil your request. Let them know you are planning on going to the court to make a claim against them if they don’t comply. If your claim can not be settled informally, the next step would be to deliver a written letter of demand to the Defendant.

The clerk of the SCC will help you to draft your letter of demand. The letter should set out the details of the claim, including the amount. Give the Defendant at least 14 days from the day of receiving your letter to settle your claim.  Make sure the Defendant receives an actual physical copy of the letter. This can be posted to the Defendant, or you can simply take it to the Defendant directly.

So, 14 days has passed and the Defendant didn’t respond. Now you can go to the clerk of the SCC with documents to institute your claim. Firstly, you will need proof that you delivered the letter of demand. This can be a post office slip, for example.  You will also need a contract or document that gives a basis for your claim. Your claim can’t just be based on thin air. Lastly, provide the SCC with all the details of the person you’re claiming from, such as name, address and phone number.

The summons

The clerk of the SCC will help you in drawing up the summons.  Once the summons is complete a hearing will also be scheduled. You then have to serve the summons to the Defendant in person and get them to sign it. Don’t be surprised if they are visibly upset. Remember to make copies of all the documents and keep them. Also give copies to the Defendant. The original documents must be handed over to the clerk of the SCC before the day of the hearing. This information will be kept in the court file.

After the Defendant receives the summons, the Defendant may deliver a plea (written statement) to the clerk of the court. The Defendant may also issue a counterclaim. Regardless of whether the Defendant institutes a plea or counterclaim, the Defendant still has to attend the hearing. On the other hand, the Defendant may decide to fulfil your claim before the hearing, you should then issue a written receipt and let the clerk of the SCC know that you won’t be continuing with the case.

Going to the hearing

You and the Defendant must appear in court in person, attorneys or lawyers are not necessary. Remember to bring along all the documents on which your claim is based, there’s no point in showing up empty-handed. If you have witnesses, make sure they also come with you to the hearing. The SCC proceedings are basic and straight-forward. As mentioned, no attorneys are involved. As the proceedings begin, answer any questions that the commissioner of the court asks you. If you want and the commissioner agrees, then you can direct questions to the Defendant.

The final judgment

After the proceedings have been completed, the court will make a judgment, which is final. There may, however, be some grounds for review. If the judgment is against you, then you should settle any order for costs. Since the court judgment is final, you have to abide by it. You can’t change your mind afterwards.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)