The small claims court resolves matters speedily, inexpensively and informally. Whether you are the claimant (plaintiff) or the party opposing the claim (the defendant), you must conduct your own case in court without legal representation. Here are some tips on dealing with your small claims court case.
Proceedings are inquisitorial so the commissioner plays an active role in supervising the presentation of the evidence and assisting the parties and the witnesses in presenting their evidence. That does not mean, however, that you can sit back and expect the commissioner to make your case or your defence for you. As the party to the action you are best placed to ensure that all the relevant facts and evidence are placed before the court. So, you must prepare thoroughly.
Do not be misled by your favourite television lawyer series. You do not get to ‘put hard questions to the witnesses’ or deliver an impassioned emotional speech to the jury. Television programmes usually represent the adversarial system where opposing parties gather and present evidence and arguments to the presiding officer. That is not the process adopted in the small claims court. You do not get to cross-examine a witness. You can suggest questions which the commissioner can put to the other party or their witnesses or ask limited questions with the commissioner’s permission and through the commissioner.
You need to communicate your story simply and clearly. You only have one bite at the cherry. There is no appeal of the judgment if the commissioner gets the decision wrong on the facts. Bear in mind that any evidence having reasonable value to prove your version may be offered, but the commissioner may refuse to accept irrelevant, or repetitious evidence or arguments. Usually proceedings take place in open court. Members of the public, including the media, can attend.
If you have any documents or other evidence relevant to the claim or defence, make sure you take the original documents or evidence to your hearing if possible.
Bear in mind that as the plaintiff claimant you bear the burden of proof to establish your case on a balance of probabilities. The ordinary rule is that the party who makes an allegation must prove it.
Prepare properly, and your case should go smoothly.
If you have witnesses who will assist your case, ask them to agree to attend court on the designated day. There is no way to compel them to attend so you will need to ask a favour of the witness. If you cannot get a witness attend court, obtain an affidavit which you can present to the court.
The witness giving testimony (by way of affidavit or in person in court) should give evidence only in respect of facts of which they have personal and direct knowledge. The formal rules of evidence do not apply. Commissioners can accept hearsay evidence – which is evidence reliant on the truth of someone who is not present at court to give evidence. The Commissioner will take into account that such evidence is not always particularly persuasive or necessarily reliable. You may need expert witnesses to give evidence about the nature and amount of damages.
Proceedings in the small claims court are usually conducted in English and Afrikaans but you and your witnesses are entitled to give evidence in a language in which you are comfortable and certainly in any one of the official languages of the country. Contact the clerk of the court to ensure that on the day of the trial there will be an interpreter available for the language of your choice. If your language is not an official language or an official language not commonly spoken in the town where the court sits, it is unlikely that there will be an appropriate interpreter at the court without prior arrangement.
The Commissioner (who acts like a judge) should be addressed as “commissioner”.
There is no particular dress code for the court but do dress respectfully to show to the Commissioner that you take both the court and your case seriously.
Prepare properly, and your case should go smoothly.
For more information, read my more detailed note here or go to: http://www.justice.gov.za/scc/scc.htm
