What to do when Lawyers cannot afford Lawyers.
A common refrain that we often hear is that “lawyers cannot afford lawyers”. To some extent this is true, and it clearly illustrates how prohibitively expensive legal services have become. The lockdown and covid-19 have exacerbated this situation. More and more people are not able to afford the services of lawyers.
However, this problem should not prevent our clients from having access to and obtaining justice. The Small Claims Court has been established to assist clients to institute a claim which can be dealt with in a simple, quick and easy way, without making use of legal representatives. At Faure & Faure Inc. Attorneys we find it prudent to advise our clients to make use of the Small Claims Court offering an easier and more affordable legal solution.
Who qualifies to approach the Small Claims Court?
Only natural persons who are older than 18 years may institute a claim. Juristic persons such as Close Corporations, Companies and Associations cannot make use of this court.
What is the maximum amount that you can claim?
The Minister of Justice determines the maximum amount that you may claim in this court. Currently the maximum amount that you can claim is R20 000. Should your amount be more than R 20 000.00, for example R21 000.00, you may have to forgo/surrender R1 000.00 for you to be able to use the Small Claims Court.
The Small Claims Court does not handle all kinds of claims. Some of the matters that the Court does not deal with include:
- Claims against the State
- Criminal Cases
- Damages for defamation
- Malicious prosecution
- Wrongful imprisonment or wrongful arrest
- Seduction and breach of promise to marry
- Matters where the value exceeds R 20 000.00
- Domestic violence interdicts
- Validity of wills
Some of the cases the Small Claims Court can handle:
- If somebody owes you money
- Claims for the delivery of movable or immovable property not exceeding R 20 000 in value
- Claims for outstanding rent which does not exceed R 20 000
- Actions for damages such as motor vehicle accidents
Use of legal representatives is not allowed
You are not obliged to use the Small Claims Court if your claim is less than R20 000.00. However, if you do decide to use the court you are not allowed to use an attorney or advocate to represent you. The clerks of the Small Claims Court are trained and will be able to assist you free of charge.
How to use the Small Claims Court:
You are more than welcome to first approach our legal team at Faure & Faure Inc. Attorneys for advice regarding your claim, the process, and the steps that you need to follow.
You must contact the party that owes you money (hereinafter referred to as “the debtor”) and demand that he/she pays. This is normally done by means of a letter of demand which our firm can draft on your behalf. In this letter you set out the basis for your claim and how you arrive at the amount you claim.
If the debtor has not paid, normally within 7 to 14 days, you can then go to the clerk of the Small Claims Court. A copy of the letter of demand should be provided together with proof that the letter of demand was given to the debtor. This you can do either by means of a Post Office slip, or, if you have given it in person, proof that you have served it on the debtor.
The next step is to draft a summons. The clerk of the court will help you with the summons and issue it. You will then have to take the summons to the Sheriff of the Court and pay the fee for the service of the document on the other party. The summons will inform the parties (you and the debtor) when the case will be heard and the time thereof.
The Sheriff normally serves the summons on the other party and informs the court that it has been done. The Sheriff will also return the original summons to the court.
If you are the Plaintiff (person who is instituting the claim) you should make sure that you set out the facts of your case and prepare all your supporting documents. You are entitled to consult Faure & Faure Inc. Attorneys before you appear in the court.
If you are the Defendant (person against whom the claim has been instituted) you should prepare a statement (plea) to the claim and send a copy to the clerk of the court and to the Plaintiff. In your plea you set out all the reasons why the Plaintiff is not entitled to the claim. Off course you have the right to consult us before you appear in the court.
If you owe the money you can simply pay the claim when you receive the summons.
However, if the Plaintiff owes you money because you are of the view that (in the case of a car accident for example) the accident was caused by the negligence of the Plaintiff, then you can institute a counter claim for the damages to your car.
Remember you must appear on the date and time of the hearing. You must prepare for the hearing and make sure that you have all your documents and witnesses present. If you are unable to attend due to illness, make sure that you send a copy of a sick certificate to the clerk of the court.
The person who is in control of the court is called a commissioner. This person will give you an opportunity to state the basis for your claim. Thus, you must prepare yourself so that you can state the facts concisely and accurately.
The commissioner will ask questions of the Plaintiff and the Defendant. You must answer the questions and give the commissioner your documents upon which your claim is based.
You are not allowed to cross-examine the other party. The commissioner will arrive at a decision after he/she has heard both parties and their witnesses, if any, and after having examined all documents.
After the commissioner gives the verdict (judgment) you must remember that it is final and can only be reviewed if such grounds exist. If the judgment is in your favour you can approach the clerk for the execution of the judgement, or if it goes against you, you must pay the claim.
Do not institute a claim if the other party does not have money or assets to pay. As the saying goes, “you should not throw good money after bad money”.
Article written by Faure & Faure Inc. Director, Lloyd Fortuin. For more information contact 021 871 1200 or email firstname.lastname@example.org.