Small Claims Court FAQ's
Posted by bidorbuy Admin on 19 July 2011 09:21 AM
The vast majority of auctions and buy now items on bidorbuy end without any problems however in the unlikely event that there is a dispute between the buyer and the seller, as a last resort an option is to have the dispute resolved by a Smalls Claims Court. Following is a list of common questions asked with regards to this process:
- Who May Institute a Claim?
Anyone except juristic persons such as companies, corporations or associations. A person under the age of 18 must be assisted by his/her parent or legal guardian.
- Against Whom May a Claim Be Instituted?
With the exception of the state, against anyone, including companies, corporations, municipalities or other entities within the area of jurisdiction of the court.
- What Amount Can Be Claimed?
An amount not exceeding R12 000 in value. If your claim exceeds R12 000, you can institute a claim for a lesser amount in order to pursue your case in the small claims court.
- Legal Representation And Assistance in the Preparation Of Your Claim.
Representation by an attorney or advocate is not allowed. You may, however, at your own cost obtain prior advice from an attorney. Legal assistants and clerks of the small claims court will assist you free of charge.
- How to Institute a Claim
Steps Preceding the Institution Of a Claim
- Contact the opposing party (person against whom you are instituting legal proceedings) in person, by telephone or in writing, and request them to satisfy your claim.
- If the opposing party does not comply with your request, address a written demand (setting out the particulars of the facts on which the claim is based, and the amount of the claim) affording them a minimum of 14 days from the date of receipt of your written demand to satisfy your claim.
- Deliver the demand by hand or by registered post to the opposing party.
- After a lapse of a period of 14 days, report in person to the clerk of the court with your proof that the demand was delivered to the opposing party.
What to Take Along to the Clerk Of the Court
- Your written demand and the proof (e.g. post office slip) that it was delivered
- Any contract, document or other proof upon which your claim is based or that has regard thereto.
- The full name and address (home and business addresses, if available) and telephone number of the opposing party.
What Are the Duties Of the Clerk Of the Court?
- The clerk and the legal assistant will examine your documents and assist you in drawing up a simple summons.
- The clerk will inform you of a date and time for the hearing of the case.
- The clerk will issue the summons and hand it to you.
What Do You Do with the Summons?
- You can serve the summons on the opposing party in person (try to obtain an acknowledgement of receipt).
- You can hand the summons, together with the sheriff's service fees, to the sheriff in whose district the opposing party resides for service on the opposing party.
What Do You Do Then?
- Where the sheriff has undertaken the service, you must obtain prior to the date of hearing a copy of his written proof that he has done so.
- Keep the contract, document and any other proof upon which your claim is based at hand.
- Inform your witnesses, if any, of the date and time the case will be heard and arrange for them to be present in court at the appointed date and time.
- Possible Steps by the Opposing Party After Receipt Of the Summons.
- The opposing party may comply with the applicant's claim.
- The opposing party may deliver a written statement, containing the nature of his/her defence and particulars of the grounds on which it is based, to the clerk of the court and send a copy thereof to the applicant.
- The opposing party may institute a counterclaim by delivering a written statement, which contains the same particulars as those required for a summons to the clerk of the court.
- If a plea or a counterclaim is instituted, the court proceedings must still be attended.
- What Do You Do If the Opposing Party Has Satisfied Your Claim in the Meantime?
- Supply the opposing party with a written receipt.
- Inform the clerk of the court immediately that your claim has been satisfied and that you will no longer proceed with the case.
- What Do You Do on the Appointed Date and Time Of the Hearing?
- You must appear in court in person.
- Ensure that you have with you all the documents upon which your claim is based.
- Ensure that all your witnesses, if any, are present.
- Ensure that you have the written proof that the summons was served on the opposing party.
- The Hearing
- The court procedures are informal and simple.
- No advocate or attorney may appear on your behalf.
- The commissioner of the court will request you to state your case. State the facts as concisely as possible.
- Answer the questions of the commissioner and submit your exhibits.
- No cross-examination between the parties is allowed. With the commissioner's permission you may, however, put a few questions to the opposing party.
- Listen attentively to the opposing party's explanations and once they have finished talking, bring to the attention of the commissioner any facts which in your opinion they have not presented correctly.
- After the commissioner has heard you, your opposing party and any witnesses that may be present, the court can pass judgement. (The commissioner may also indicate that he/she will notify you of his judgement in writing at a later stage).
- Appeal And Review
No appeal may be filed against the judgment or order of the court. The court proceedings may be referred to the Supreme Court for review on three grounds only:
- Absence of jurisdiction by the court;
- Interest in the cause, bias, malice or corruption on the part of the commissioner;
- Gross irregularity with regard to the proceedings.
- Steps Following Judgment
In Case Judgement Is Given Against You
The judgement of the court is final, unless some ground for review exists. Settle any order for costs that the court may make against you. The only possible costs can be those that the opposing party may have had in respect of fees for the sheriff. Abide by the decision of the court.
In Case Judgment Is Given in Your Favour
Your opposing party will immediately pay you the amount of the judgement, if they have the money available. Give the opposing party a receipt for the amount immediately. In case your opposing party cannot comply with the judgement forthwith, the court will investigate their financial position and ability to settle the judgment debt and make an order for payment thereof.
If the Judgement Debtor Fails to Comply with the Judgement Or Order Of the Court
If the judgement debtor fails to comply with the judgment or order of the small claims court and you want to enforce the judgement or order concerned, the matter is transferred to the magistrate's court and the execution procedure, as prescribed by the Magistrate's Courts Act, 1944 (Act 32 of 1944), is followed. It is advisable to make use of legal representation with this procedure.
This merely informs you of the most important steps to be taken with regard to the institution of a case in the small claims court. Should you require assistance with any matter at all, the address and telephone number of the clerk of the small claims court can be obtained from your local magistrate's court.