Some people are blessed with financial savvy and manage their money sensibly, but there are others who survive by cheating you blind
Sharon Gill
So you gave the builder a down payment and haven’t seen him since, while you were away for the weekend your flatmate moved out and took your CD player with him, or you were contracted to do a specific job for somebody and you still haven’t been paid. Whether someone’s scarpered with your money or is deliberately withholding payment due, basically he’s getting rich at your expense.
You try withholding payment from a doctor or a department store, and their letter of demand will shortly be followed by a summons to appear in the magistrate’s court. But because Joe Public doesn’t have a team of hot-shot lawyers on retainer, he thinks it’s not worth suing somebody because the procedure would cost him more than he’s owed.
This is where the small claims court comes into its own. There are really only two limitations: you must be acting as a private individual, not as a close corporation (cc) or (Pty) Ltd. company, and the maximum amount claimable is R3 000.
The first step is showing the clerk of the small claims court that you actually have a valid claim. ”The onus is on the plaintiff to prove his case,” says Eric Maghe, clerk of the small claims court in Durban.
Once that’s been established, he will give you a blank letter of demand which you must complete in duplicate and deliver to the offending party via registered post. Keep the copy for your records. It doesn’t matter if you’ve sent a whole series of final demands either from yourself or a lawyer friend, you are required to send one on the small claims court stationery. This letter advises the defendant that if he doesn’t pay up within 14 days, summons will be issued.
Sometimes this is enough to trigger payment. If not, two weeks later you go back to the clerk of the small claims court with your copy of the letter of demand and proof of registered post. He allocates the case a number and court date, and off you go with another letter to visit the local sheriff. Here you pay between R35 and R50 for the sheriff to issue and deliver a summons. Unless the defendant denies liability in writing to the court, he will have to appear in court on the stipulated date, usually within six weeks, or pay up prior to that date. He also has to pay your costs.
When you finally get to court, simply present your case to the judge. If you have copies of any written contracts or agreements between you and the person you’re suing, or any relevant witnesses, take them along. The defendant can put forward his side of the story, and the judge will rule one way or another. If you win, the judge will order the defendant to pay you, usually within seven days. If the defendant doesn’t bother to pitch up for the court case, then a ”default judgement” may be granted against him and he’ll receive a letter giving him 10 working days to settle the debt.
If the money still isn’t forthcoming, you go back to the clerk of the court with a R1 revenue stamp and apply for a warrant of execution against property. ”The case will be transferred to the magistrate’s court,” says Maghe, ”where the sheriff will be ordered to attach the defendant’s movable property. The plaintiff will get his money from the auction of the defendant’s goods. If he has nothing to attach, then both parties must appear in the magistrate’s court where the plaintiff can apply for a ‘Section 65’, which means the money will be deducted from the defendant’s salary and paid directly to the plaintiff.” Even at this stage, you don’t need a lawyer.
Going the route of the small claims court is relatively painless. It’s quick and it seems to work. ”From the time you first see the clerk of the court until the court case, it’s usually around six weeks,” says Frans van Oers, a Pinetown lawyer and a commissioner in the small claims court. ”The court is a lot less intimidating than people expect. My court is quite informal.”
”It’s a darn sight more effective than the maintenance court,” declares Sally, a witness in a case who is fighting a losing battle with a delinquent former husband. ”I only wish the maintenance courts were run with the same efficiency as the small claims courts.” However, since Sally’s monthly maintenance is less than R3 000, she could sue her ex in the small claims court every month.
Few people can survive in this country with a judgement lurking on their credit record. In many instances, once the defendant realises you mean business, he settles before the court date.
”I was denied the satisfaction of getting judgement against the company,” laughs Carol, another Durban plaintiff. ”Maybe they thought I would throw in the towel, but when they realised I was prepared to see it through to the bitter end, they paid me in full the afternoon before the court date.”
Too many people let debtors get away with it, which is probably why there are so many persistent defaulters around. But you can collect payment legally due to you, and you don’t have to be Ally McBeal to do it.
Small claims court telephone numbers: Durban (031) 302 4369, Johannesburg (011) 491 5000, Cape Town (021) 401 1511