Legal Matters

There is one aspect of life where honesty is the best policy – debt. The law enables those in debt to settle their debt in payments. The debtor who ignores letters or summonses is the one who comes up short. Big Mistake. Here are some general questions regarding debt.

What happens if I haven’t receive any notices because I moved?

It’s your duty to keep your creditors up to date with your change of address. If a creditor has the wrong address, it could happen that you are unaware of the fact that there is a summons against you, then you could be sentenced without having had the chance to defend your case. And you don’t want to be SENTENCED, believe me.

What do I have to do if I haven’t paid?

If a creditor wants to approach the court to force you to make payments, he first has to obtain an order from the court. This is a long process which usually starts with a letter of warning from a lawyer or the creditor himself in which the outstanding money is formally claimed from you. By contacting the creditor and asking to pay off the amount, you could prevent any further legal costs against you. If you should ignore this, chances are the creditor will go ahead and request a lawyer to issue a summons against you. The summons doesn’t have to be issued to you personally, and if the creditor does not have your address, he could employ people to track you down and also claim their pay from you. NEVER EVER regard a summons lightly.

What happens if a summons is delivered on me?

When the bailiff delivers a summons on you, you could give notice on the back of the summons that you are going to defend the case. Notification of your intention to defend must be handed in at the clerk of the court that issued the summons, within 7 days. Visit the court personally and ask the clerk of the court to assist you with the drawing up of a notification of your intention to defend the case.

Can I negotiate debt?

The clerk of the court has to stamp it and you deliver it to the creditor’s lawyer. There is nothing under the sun that cannot be negotiated. Debt is one of the most important things about which one should negotiate. If you should ignore any document, you should know that it’s going to cost you. Put everything in writing. If you ignore a summons, this means the creditor can go ahead and ask the court to sentence you.

What happens if I’ve been sentenced?

BEING SENTENCED is a horrible thing! This means you are convicted and the court has ordered you to pay. BEING SENTENCED means being blacklisted. It means the court orders a form of payment and there is nothing more you can do about it. Except to pay. If you only wake up after you’ve been sentenced, it’s too late for anybody to help you in any way, unless you get a lawyer to have the sentence overturned. And this is not something the court would lightly do. You have to prove that you did not receive the summons and that you would have had enough grounds to defend it successfully.
The moral of this story is therefore: Avoid SENTENCING. Don’t hide when you have fallen into debt. See to it that you negotiate, negotiate, negotiate.
 
What do I do if someone owes me money?

When somebody owes you money, the first step to recovering the money is to notify the person that you are taking formal steps to get the debtor sentenced by the court to repay the loan. You do this by a letter of warning in which you give a breakdown of the debt and a deadline for the debt to be settled. Make it clear that if he or she does not pay on or before this date, you will proceed with steps against him/her. See to it that you make a copy of this letter. Send it per registered post and keep the slip with the copy of your letter as reference/proof. If you don’t have money for registered mail, deliver it per hand and see to it that the debtor signs for receipt on the copy of the letter. Remember, you are on your way to court to get the debtor sentenced and for this reason you have to do everything in the correct and proper way. You now have to decide in which court you are going to have the debtor sentenced. If your claim is below R7000, you can have a summons issued by the Small Claims Court. It is a very simple and user-friendly court. You approach the Small Claims Court in your area.

Where is the small claims court situated?

The Small Claims Court resorts under a magistrate’s court. You should therefore direct enquiries at the magistrate’s court closest to your home, but bear in mind that the location where the cause of debt originated or where a business is situated if you want to address a business or company, are also matters to be taken into account.

A clerk of the court is appointed for each Small Claims Court. Find out from this clerk if the court in question can decide your case or not.

Could the court handle my case or does the court handle all types of claims?

Find out from the clerk if the Court for Small Claims does in fact handle this type of case. Your claim or the value of the object in question should not exceed R7000, as stipulated above.

You could also institute an action for delivery or transfer of moving and unmoving goods and actions which might ensue from a credit agreement. You could also institute an action as counter claim.
Actions or cases that the court does not handle are among others family law issues or the requesting of interdicts. Furthermore, you can not approach the court for compensation regarding crimen injura, unlawful arrest, malicious persecution and break of confidence.

If your claim slightly exceeds the R7000 limit, but you still want to make use of the court, you could forfeit a part of your claim, in which case you are not allowed to claim it back at a later stage or in another manner.

Neither are you allowed to split the claim in two where the amount exceeds the limit. One cause of debt, one claim.

How do I start my action/claim?

• As mentioned above, you have to deliver a written warning/reminder to the debtor per registered mail or per hand. The amount outstanding has to be clearly stated and explained and the debtor must be given a reasonable time within which to settle the debt. The debtor should be given at least fourteen (14) days to respond.
• As claimant, you are free to stop the action if the defendant responds favourably to your warning.
• If the debtor does not respond, you should hand over to the clerk of the small claims court a copy of the letter of warning, proof of delivery, together with your summons.
• The summons is a standard document which you complete and which will be checked by the clerk of the court to make sure that it is valid.
• The clerk of the court will then determine the date and time of the trial, indicate this on the summons and issue it to the claimant.
• You, the claimant, then has to deliver the summons personally to the debtor/defendant. If you don’t want to deliver it personally, you can hand it to a messenger of the court/ bailiff to deliver. If you make use of the bailiff, a cost of R50 to R80 is payable. The clerk of the court will be able to give you an indication where to find the relevant bailiff’s offices.

What procedure is followed in court during the trial?

• The chairing official is called the Commissioner for Small Claims and is an admitted attorney, a lawyer or a magistrate, appointed by law to act as Commissioner.
• Please note that the normal laws of burden of proof are not valid here – the court can use any means at its disposal to verify facts.
• You will be afforded the chance to state your case in the language of your choice. An interpreter will be present to this end. You could present your testimony in writing, orally or both. See to it that you are prepared during the trial. This also goes for the defendant.
• You are free to call witnesses. Make sure your witnesses are prepared. This also applies to the defendant.
• All persons giving testimony in court have to do so under oath. The court might decide at some stage that they have heard enough testimony – this would mean that no more witnesses would be called.
• During the trial the claimant is not allowed to cross-examine the defendant or any of his/her witnesses. The court could allow the claimant as an exception and upon his/her request, to put a question to the defendant or one or more of his/ her witnesses. The same applies to the defendant.
• No party may be assisted or represented by a legal representative or other person – companies are represented by a director or authorised official.

What verdict/ order can the court give?

At the end of the trial, the court could reach one of the following decisions:

• In favour of the claimant if the claim has been proven.
• In favour of the defendant if his/her defence or counterclaim has been proven.
• No verdict where the court feels that the testimony did not persuade it to decide in favour of either the claimant or the defendant.
• A cost verdict could be reached regarding court costs and for the issuing of a summons and monies and travel costs of the bailiff.

Please note that if the claimant does not show on the court date, his or her claim is set aside and the court could find in favour of the defendant if he/she has proven his/her counterclaim.

If the defendant neglects to show up, the verdict would be allowed in his/her absence.

How is the verdict carried out?

Money that is payable to the court with regard to a verdict, must be paid by the debtor directly to the claimant. It should be paid within 10 days. The debtor can make an offer to the claimant within 10 days, which he or she could or could not accept.

Whether the debtor settles the debt in payments according to the court or according to an arrangement with the claimant or once-off, payment has to occur within the prescribed period. If the debtor does not adhere to the deadline, the claimant can go ahead with execution (taking possession of the assets of the debtor). This action takes place by means of the magistrate’s court as if the verdict was given by the magistrate’s court in the first place.

It should be clear from the procedures of the Small Claims Court that it offers an excellent alternative for a person with a claim that falls within the orbit of this court. Fast, simple, effective and affordable!