The SCC is a civil court but the procedures involved are much simpler and you can only use it for certain ‘small’ civil claims. A ‘small’ claim is a claim with a value of up to R20 000. If your claim is for more than R20 000, you either have to use the ordinary magistrate’s court or you can give up part of your claim so that it reduces to R20 000.

Certain claims cannot be heard in the SCC even if their value is R20 000 or less. Examples of these claims are:

• Divorce
• Matters concerning a will
• Malicious prosecution
• Wrongful imprisonment
• Seduction
• Breach of promise to marry

The SCC will also not hear cases that the Commissioner thinks involve difficult questions of law and so should be heard by a Magistrate’s Court. The state may not use the SCC, and you may not use it against the state, for example, to make a case against the police. You can use the SCC to claim from an organisation, a town council or a company. But an organisation, town council or a company may not use this court to claim against you.

EXAMPLES
CASES YOU CAN TAKE TO THE SCC INCLUDE:

• You work as a domestic worker and have not been paid for three months. You want to claim wages from your employer.
• You bought a second-hand tape player mobile phone which stops working after the first month. You can claim against the seller.
• You are assaulted and have to have treatment for your wounds.
• You can claim against the person who assaulted you for pain and suffering, lost wages, medical fees, and so on.
• Someone negligently drives into your car causing R1 800 worth of damage. You can sue the driver of the other car for this amount.
• You paid someone to do work for you and they did not do it properly. You can claim some of your money back.

Neither you nor your opponent can use an attorney in the SCC.

WHICH SMALL CLAIMS COURT MUST YOU USE TO MAKE A CLAIM?

Your claim will be heard in the Small Claims Court in the area where the defendant lives, or where the “cause of action” arose – you can choose either of these two options. The legal term “cause of action” means the reason for your claim (or what caused your claim).

EXAMPLE

If you park your car outside your home, and Fabio smashes into it, the cause of action will be the collision that was caused by Fabio. However, Fabio lives in Pretoria, and you live in Johannesburg.

Which Small Claims Court should you take the case to?

You can choose to take the claim to the Pretoria Small Claims Court (where the defendant, Fabio, lives) or to the Johannesburg Small Claims Court (where the cause of action arose).
If the Magistrate’s Court for the area where you live has a Small Claims Court, phone and ask the Clerk of the Small Claims Court for help. If the Magistrate’s Court for your area does not have a Small Claims Court, the Clerk of the Civil Court will advise you where to take your claim.

SUMMARY OF STEPS IN A SMALL CLAIMS COURT

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:

• 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.
• 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 they refused to sign acknowledgment or refused delivery.
• 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 or your proof of hand delivery 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 JUDGMENT
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 (they have to have both) they can ask the court to “rescind” (or cancel) the default judgment.
They do this by immediately lodging a Rescission Application with the Small Claims Court once they become 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)

WHAT HAPPENS IF THE PLAINTIFF DOES NOT APPEAR IN COURT?

If a claimant fails to appear in court, for whatever reason, the Commissioner writes on the file, “removed from roll”. This means the claimant has to start their case over again by issuing a fresh summons, and paying the Sheriff’s fee a second time.

STEPS FOLLOWING JUDGMENT

The judgment of the court is final, unless there are grounds for review. Whoever has judgment given against them must do what the court says.

TAKING A JUDGMENT ON REVIEW

The commissioner’s decision or judgment cannot be taken on appeal. However, the commissioner’s judgment can be taken on review in the High Court on three grounds (See What is a review?):

• If the court did not have jurisdiction. In other words the case should not have been heard in that court.
• If the commissioner was biased or corrupt
• If the proper procedure was not followed in the court. This is also called a gross irregularity. For example, if the commissioner did not allow one of the sides to tell their story, this is not proper procedure, because each side must get a fair hearing.

ENFORCING A SMALL CLAIMS COURT JUDGMENT

If the defendant fails to pay the claim in terms of the court order, you will have to transfer your claim to the ordinary civil courts.
You can get a document called a Writ of Execution against Moveable Property at a stationery shop. The clerk of the Small Claims Court Administration may help you to complete the document. You must then take this document to the sheriff (as you did with the summons).

The Writ gives the sheriff the right to seize any attachable property belonging to the defendant. The sheriff will charge a fee for doing this.

Note: It is expensive to try and enforce the Small-Claims judgment in the ordinary civil courts (especially if the defendant has disappeared, or does not own any property that can be attached). You need to decide whether it is worth your time, money and effort to continue trying to enforce the judgment in the civil courts.