Letter of Demand

If you want to use the SCC, you must send an official Small Claims Court letter of demand to the defendant. You can get a form for the letter of demand at the SCC. The Clerk of the Small Claims Court will complete the Letter of Demand for you.

Include in your letter of demand a full description of your claim.

(See: Model letter of demand for the SCC)

The defendant is given 14 working days to pay your claim. The 14 days start from the first working day after the defendant has received your letter. If the defendant does not reply within 14 days you can take the next step which is issuing a summons.

The Letter of Demand must be in duplicate. There are three ways to deliver the letter:

1. Send it by registered post. Keep the registration slip and contact the post office by phoning the toll-free number on the registration slip. If the defendant receives the letter, the post office will inform you of the date of receipt, and you calculate the 14 working days, starting from the first working day after receipt of the letter.

If the defendant does not collect your letter, the letter will be returned to you by the post office unclaimed after a full month. You may also collect the unclaimed letter at the post office after a full month.

2. Hand-deliver the original copy of the letter to the defendant yourself. If you hand deliver the letter, the defendant must sign your copy of it as acknowledgment of receipt. Keep this signed copy in a safe place.

If the defendant refuses to sign your copy, or refuses delivery, go to the nearest police station to sign an affidavit stating that you delivered the letter to the defendant but he or she refused to sign acknowledgment or refused delivery.

3. Take the letter to the sheriff serving the area where the defendant lives, for hand- delivery. This will cost you a small fee.

Issuing the Summons

If the defendant receives your letter, but fails to pay after 14 days, you should return to the Clerk of the Small Claims Court with your registration slip and your copy of your letter.

The clerk will then issue you with a summons, which will have a court date on it. You must immediately take the summons to the sheriff to serve on the defendant. You can claim this cost back from the defendant, in addition to your claim.

The sheriff will inform you by means of the ‘Sheriff’s Return of Service’ whether or not he or she was able to serve the summons. If the sheriff is unable to serve the summons, for example, if the defendant has moved to another address, then the sheriff will inform you of the reason. The clerk of the court will tell you what steps to take after this.

The summons gives the defendant 10 days to pay your claim. It also gives a date after the 10 days when she or he must appear in the SCC if the claim is not settled. You will also have to appear in court on the day referred to on the summons.

The Trial

At the trial, the small claims commissioner (who is usually an attorney) presides over the case. The commissioner explains the court procedure to both sides and asks all the questions. You can only ask your opponent questions when the commissioner says that you can. If you do not understand English or Afrikaans, you can ask for

an interpreter, but you must ask for this before the day of the case.

Both you and your opponent can call any witnesses to support your cases. The commissioner will question the witnesses. The parties should also bring any documents involved in the case, for example, an invoice, receipt, photographs, statements by other people, and so on which could be used as proof.

Changing the claim

At any time before the case, you can ask the small claims commissioner to change some of the details in any of the documents. Or you can ask the court to stop the claim altogether. The commissioner will allow any changes which he or she decides are reasonable.

The Commissioner Gives Judgement

When the commissioner has heard all the evidence, he or she will decide on a ‘balance of probabilities’ who is right. This is the same as in other civil cases. The commissioner does not have to listen to all the witnesses if he or she thinks it is not necessary.

There are three possible judgments that the commissioner can give:

• judgment in favour of the claimant (also called the plaintiff):

The loser cannot appeal and has 10 working days to pay the claim, which includes the refund of the sheriff’s fees to the claimant.

• Judgment in favour of the defendant:

This means the claimant has lost his or her case. The claimant may not appeal against this judgment.

• Absolution from the instance:

This ruling is given if the commissioner cannot decide which side to believe. It means neither side has won. If this judgment is given the claimant can, at a later stage, make a claim in the small claims court. For example, the claimant might find proof of his claim after the court hearing which would help him win his claim next time.

What Happens if the Defendant Does Not Appear in Court?

Default judgment

If the defendant is absent and the plaintiff is present at court, the court will first ensure that the claim is valid, then it will give the plaintiff a “default judgment” against the defendant. The term “default” means the defendant failed to attend the proceedings.

The defendant now has 10 working days to pay, starting from the day after the defendant is informed of the default judgment. A letter will be sent by the small claims court to the defendant notifying him or her of the default judgment.

Rescinding (setting aside) a default judgment

If the defendant has a legally valid defence to the claim, AND a valid reason for failing to appear in court (he has to have both) he can ask the court to “rescind” (or cancel) the default judgment.

He does this by immediately lodging a Rescission Application with the small claims court once he becomes aware of the default judgment.

NOTE: Lack of money is not a valid defence to a claim. ‘Forgetting the court date’, personal commitments, or business pressures are also not valid reasons for failing to attend a court hearing. If the court grants a rescission application, the claim starts from the beginning, and the claimant and defendant both have to appear in court. (See: The trial)