Small Claims Court Rules

In these rules and in the forms annexed hereto, unless the context otherwise indicates, a word to which a meaning has been assigned in the Act bears that meaning; and—

"abandon" means to give up a portion of a claim or counterclaim to bring the claim within the jurisdiction of the Small Claims Court and "abandonment" has a corresponding meaning;

"affidavit" means a written statement voluntarily made under oath or upon affirmation before a commissioner of oaths;

"application" means to apply to the court orally or in writing for relief in terms of the Act;

"clerk of the court" means a clerk of the court appointed under section 11 of the Act and includes an assistant clerk of the court so appointed;

"counterclaim" means a claim the defendant has against the plaintiff irrespective of the plaintiff's cause of action;

"defendant" means the person against whom a claim is made;

"deliver" (except in rules 7 and 13) means to serve a copy of the document on the opposite party by hand delivery or electronic mail and lodge with the clerk of the court and "delivery" and "delivered" and "delivering" have a corresponding meaning;

"documents" includes but is not limited to a book, writing, tape recording, video, photograph, electronic recording or data message;

"domicilium citandi" means an address chosen by a party, in writing, where legal notices or process may be sent or served and "domicilium" and "domicilium citandi et executandi" have a corresponding meaning;

"jointly and severally" means where there are two or more persons responsible for a debt, each person may be liable for a proportionate share of the debt or the whole of the amount;

"legal entity" means an association, partnership, syndicate, company, close corporation, trust, stokvel and any other entity that is not a natural person;

"lodge" means to submit, furnish to, or file documents with, the Clerk of the Court by hand or by electronic means and "lodged" has a corresponding meaning;

"plaintiff" means the person who institutes the claim;

"property" includes everything animate or inanimate, corporeal or incorporeal, movable or immovable, capable of being subject to ownership;

"set-off" means the deduction from a claim or counterclaim of an amount admitted by a party, due by that party to the other party concerned;

"sign" means affixing or appending a signature including an electronic signature comprising the initial or name of the person signing, in any font, style or size which is intended by the person to serve as a signature and includes an advanced electronic signature as provided for in the Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002) and "signed" and "signature" has a corresponding meaning; and

"the Act" means the Small Claims Courts Act, 1984 (Act No. 61 of 1984).

(1) (a) The Minister may establish one or more boards as contemplated in section 25(1)(d) of the Act and may appoint as many members to such board or boards as he or she deems fit.

(b) A member of such a board shall hold office for such period as determined by the Minister, and any such appointment may be terminated at any time by the Minister if there are sound reasons for doing so.

(c) The Minister shall appoint the chairperson and vice-chairperson of the said board.

(d) If the chairperson and vice-chairperson are not available, a chairperson shall be appointed by the members present if quorate, being 50% of the members of the Board.

(2) The Minister may dissolve the board at any time.

(3) The board must advise the Minister in regard to—

(a) the appointment of suitable persons as commissioners, in the case of an attorney or advocate, after consultation with the Legal Practice Council;

(b) the recruitment and utilisation of persons as commissioners, clerks, assistant clerks, interpreters, legal assistants and such other persons as may be necessary;

(c) suitable court and office accommodation;

(d) the times for the holding of court; and

(e) any other matter which may be necessary for the proper functioning of the court.

(1) Any party initiating proceedings must approach the clerk of the court to issue a summons.

(2) The clerk of the court—

(a) must sign, date and issue the process initiating the proceedings;

(b) must assign a consecutive case number for the year and a unique reference number to the summons and record the case and unique reference numbers in a register;

(c) must ensure that every document subsequently filed in respect of the same proceeding is marked with the same case number;

(d) may request a party to correct any patent defect or error in any document that is filed and may assist the party if necessary; and

(e) must file under the case number, any process of the court and any process delivered to the court in the matter and must perform any ancillary duties as may be directed by the commissioner to give effect to the finality of the matter.

(3) A commissioner may perform any function of the clerk of the court or sign any process prescribed in these rules except that a commissioner may not prepare any statement or process for any party.

(1) The legal assistant must render to any person who so requests—

(a) advice in regard to any action which falls within the jurisdiction of the court;

(b) assistance with the drafting of the process of court; and

(c) advice in regard to the prescribed tariff for sheriffs and where to lodge a complaint for overcharging.

(2) Any act to be performed by the legal assistant in terms of these rules may be performed by the clerk of the court.

(1) All interpreters interpreting evidence in any language with which the court or a party or his or her representative is not sufficiently conversant, must either have been sworn in to interpret in the High Court or Magistrates' Courts or where not sworn in, be sworn in by stating the following before the commissioner:

"I, .............................................................. (full name), do hereby swear or truly affirm that whenever I may be called upon to perform the functions of an interpreter in any proceedings in any Small Claims Court, I shall truly and correctly to the best of my ability interpret from one language to the other being used in those proceedings and vice versa."

(2) Such oath or affirmation shall be taken or made and administered in the manner prescribed for the taking of an oath or the making of an affirmation.

(1) (a) The oath in terms of section 28 of the Act shall be administered in the following form:

"I swear that the evidence that I shall give shall be the truth, the whole truth and nothing but the truth, so help me God."

(b) Any person who is required to take the oath and who informs the commissioner that he or she—

(i) objects to taking the oath; or

(ii) does not consider the oath to be binding on his or her conscience,

shall make an affirmation in the following words at the direction of the commissioner:

"I solemnly affirm that the evidence that I shall give, shall be the truth, the whole truth and nothing but the truth."

(2) The oath and affirmation shall have the same legal effect.

(1) The letter of demand referred to in section 29(1) of the Act must set out the facts upon which the claim is based, the date upon which the claim arose and the amount or relief claimed and must substantially correspond with Form 4 of Annexure 1.

(2) The plaintiff must prove by means of an affidavit or by a registered post receipt that the letter of demand referred to in section 29(1) of the Act has been delivered to the defendant.

(3) The plaintiff may use Form 5 in Annexure 1 for the affidavit referred to in subrule (2).

(1) The summons must—

(a) substantially correspond with Form 1 of Annexure 1 and include—

(i) a form of consent to judgment; and

(ii) a notice drawing the defendant's attention to the provisions of sections 29(3), 35, 38, 39, 40, and 43 of the Act;

(b) contain particulars of the claim and set out—

(i) the date when the claim arose;

(ii) the nature of the claim;

(iii) the amount of the claim;

(iv) the relief or outcome that is sought from the court;

(v) any abandonment of part of the claim under section 18 of the Act and any setoff under section 19 of the Act; and

(vi) the particulars and relief sought in respect of each claim separately where the summons contains more than one claim.

(c) be signed by the plaintiff;

(d) state the plaintiff's residential or business address and where available, an electronic mail address, telephonic and cellular number;

(e) state the surname and first names or initials of the defendant by which the defendant is known to the plaintiff, the defendant's residential address or place of business and where available, the electronic mail address, telephonic and cellular number and in the case of a legal person, partnership, club, association, business, church or syndicate it shall be summoned under the name by which it is known to the plaintiff; and

(f) be signed by the clerk of the court and bear the date of issue by him or her and reflect the case number and unique reference number.

(2) The residential, business or electronic mail address, provided in subrule (1)(d), may be used for service of documents on the plaintiff.

(3) The summons must be served on the defendant not less than 10 days before the date of hearing. A copy of Form 7 of Annexure A must be attached to and served with the summons on the defendant.

(4) Documents lodged shall not be invalidated by noncompliance with any of the requirements and may be corrected by the commissioner in his or her discretion unless the other party is prejudiced.

(1) Subject to the provisions of this rule, a summons may be amended by the plaintiff before service.

(2) Any alteration or amendment of a summons before or after issue but before it is served, must be initialled by the plaintiff and the clerk of the court on the original summons, and until so initialled such alterations and amendments shall have no effect.

(3) Any alteration or amendment of a summons after service must be made in terms of rule 10.

(4) Any documents may be amended after service, by the commissioner of his or her own accord or on request by the relevant party after consideration by the commissioner of any possible prejudice to any other party.

(1) Any application required in terms of the Act or these rules may be made orally or in writing.

(2) If an application is made in writing it must substantially correspond with Form 8 of Annexure 1.

A summons may be served on a defendant—

(a) by the plaintiff or the plaintiff's authorised representative, in terms of rule 12; or

(b) by the sheriff in terms of rule 13.

(1) Where the summons is served by the plaintiff or his or her authorised representative by hand delivery, the plaintiff or the plaintiff's authorised representative must—

(a) make as many copies of the summons as there are defendants to be served;

(b) hand over a copy of the summons to the defendant in person;

(c) where requested, show the original or certified copy of the summons to the defendant; and

(d) after service on the defendant, lodge the original summons and proof of service with the clerk of the court as soon as possible.

(2) Proof of service of the summons on the defendant must substantially correspond with Form 6 in Annexure 1.

(3) Where the defendant keeps his or her residence or place of business closed or otherwise prevents the plaintiff from serving the summons, the plaintiff may call upon the sheriff to serve the summons, subject to compliance with subrule 13(1)(a) and (b).

(1) Where a summons, warrant of execution or any other process is delivered to the sheriff for service on the defendant, the sheriff—

(a) shall only be obliged to effect service if the party who requires such service has paid the sheriff's fees beforehand;

(b) must be furnished with the original or certified summons, original warrant or any other process and as many copies of these documents as there are defendants to be served;

(c) must serve the summons or execute the warrant of execution and any other process of court without any unavoidable delay once paragraph (a) and (b) have been complied with;

(d) must, where requested, exhibit the original summons or certified copy of the summons, warrant of execution or process to the person to be served and serve a copy thereof on the person;

(e) must notify the clerk of the court and the plaintiff in the summons, warrant of execution or any other process in writing that service or execution has been duly effected, stating the date, manner of service or execution and return the said process to the clerk of the court;

(f) must notify the plaintiff in the summons, warrant of execution or any other process in writing that service or execution could not be effected, the reason that service or execution could not be effected and return the said process to such party and keep a record of any process so returned;

(g) must after service or attempted service of any process, specify the amount of each of his or her charges separately and the total thereof on the original and all copies of his or her return of service;

(h) shall, for service effected in terms of subrule (2)(b) to (i), indicate in the return of service of the process the name of the person to whom it has been delivered and the capacity in which such person stands in relation to the person, corporation, company, body corporate or institution affected by the process: Provided further that whenever the court is not satisfied as to the effectiveness of the service, it may order such further steps to be taken as it deems fit; and

(i) shall, in any case where the service or execution of any process of the court has been met with or is reasonably expected to be met with resistance, have the power to call upon any member of the Service as defined in section 1 of the South African Police Service Act, 1995 (Act No. 68 of 1995), to render aid to the sheriff.

(2) All process that is required to be served on any person may be served in any of the following ways:

(a) By handing a copy of the process to the person;

(b) By leaving a copy of the process at the person's place of residence or business with any other person who is apparently at least 16 years of age and in charge of the premises at the time: Provided that for the purpose of this paragraph, when a building is occupied by more than one person or family, "residence" means that portion of the building occupied by the defendant;

(c) By leaving a copy of the process at the person's place of employment with any person who is apparently at least 16 years of age and apparently in authority or in charge at the place of employment;

(d) If the person to be served has chosen a domicilium citandi, by serving a copy of the process at the domicilium so chosen: Provided that the sheriff shall set out in the return of service the details of the manner and circumstances under which such service was effected;

(e) In the case of a company or other body corporate, by serving a copy of the process on a responsible employee of the company or body corporate at its registered office or its principal place of business within the Republic, or its main place of business within the magisterial district in which the dispute first arose or, if there is no employee willing to accept service, by affixing a copy of the document to the main door of the office or place of business;

(f) In the case of a partnership, firm or association, by serving a copy of the document on a person who at the time of service is apparently in charge of the premises and apparently at least 16 years of age, at the place of business of such partnership, firm or association or, if such partnership, firm or association has no place of business, by serving a copy of the document on a partner, the owner of the firm or the chairperson or secretary of the managing or other controlling body of such association as the case may be;

(g) In the case of two or more persons sued in their capacity as trustees of an insolvent estate, liquidators of a company, executors, curators or guardians, by delivery to any one of them in any manner prescribed in this rule;

(h) In the case of a syndicate, unincorporated company, club, society or church, by delivery at the local office or place of business of such body or, if there be none such, by service on the chairman or secretary or similar officer thereof in any manner prescribed in this rule;

(i) By handing a copy of the document to any representative authorised in writing to accept service on behalf of the person; or

(j) Any method or manner of service as may be ordered by the court including, where appropriate, service by registered post, electronic mail or any other electronic means.

(3) Where two or more persons are to be served with the same process, service shall be effected upon each, except where the persons are those stated in subrule (2)(f), (g) and (h).

(4) Where the person to be served keeps his or her residence or place of business closed and thus prevents the sheriff from serving the process, it shall be sufficient service to affix a copy thereof to the outer or principal door of such residence or place of business.

(5) Where the sheriff is unable after a diligent search, to find at the residence or domicilium citandi of the person to be served, either that person or a person referred to in subrule (2)(b) or, in the case of a company or body corporate referred to in subrule (2)(e), a responsible employee, it shall be sufficient service to affix a copy of the process to the outer or principal door of such residence, local office or principal place of business or to leave a copy of the process at such domicilium.

(6) If it comes to the sheriff's knowledge that the person on whom service must be made has a new residential or business address, the sheriff shall serve the process on the person at the new address: Provided that the address is within the jurisdiction for which the sheriff was appointed, without returning the documents to court for amendment.

(7) Where the relief claimed in any action is limited to an order for ejectment from certain premises or land or a judgment for the payment of rent and for the cost of such proceedings, and it is not possible to effect service in the manner prescribed in subrule (2), service of process may be effected by affixing a copy thereof to the outer or principal door of such premises or on some other conspicuous part of the premises or land in respect of which the process is being served.

(1) Where the defendant wishes to lodge a written statement of defence then such statement must—

(a) set out the nature of the defence and the grounds on which it is based;

(b) be signed by the defendant or his or her authorised representative; and

(c) be lodged with the clerk of the court.

(2) For the purposes of this rule "defendant" includes any person upon whom a summons has been served and who alleges that he or she is not the defendant cited in the summons and enters an appearance to defend on that ground.

(3) Form 7 in Annexure 1 may be used for the written statement of defence and counterclaim.

(4) (a) If the written statement of defence includes a counterclaim, the statement must be served in the same manner set out in rules 12 and 13 for the service of a summons.

(b) The written statement of defence must be lodged with the clerk of the court after service on the plaintiff.

(5) The clerk of the court must bring the written statement of defence to the attention of the plaintiff.

(1) A counterclaim may be made orally or in writing.

(2) If a counterclaim is made in writing—

(a) it shall be made by stating in a written statement of defence, particulars of the counterclaim as are required in terms of rule 8 in respect of a claim and Form 7 in Annexure 1 may be used for the counterclaim;

(b) such counterclaim included in a statement of defence, must be served in terms of rule 12 or 13; and

(c) the counterclaim must be lodged with the clerk of the court after service on the plaintiff.

(3) Where a counterclaim is raised at a hearing whether orally or in writing the commissioner may—

(a) proceed with the matter where there would be no prejudice to any party; or

(b) postpone the hearing to allow a party an opportunity to address any prejudice suffered by such party.

(1) (a) The parties must appear on the day and at the time of the hearing with all the relevant and supporting documents.

(b) The parties may appear in person or by audio or audiovisual means.

(c) Any party may appear by audio or audiovisual means only after an application to the court is made at least 3 days before the date of the hearing and an order is granted allowing such an appearance.

(2) The plaintiff must furnish the court with proof that the summons was served on the defendant.

(3) The plaintiff and the defendant must ensure that any witness or witnesses in support of his or her claim or defence gives evidence in person or by audio or audiovisual means.

(1) A defendant who has admitted liability and consented to judgment in writing after receiving a summons shall—

(a) sign the form of consent endorsed on the original summons; or

(b) sign the consent form on a copy of the summons and lodge it with the clerk of the court.

(2) If the defendant's consent to judgment is for less than the amount claimed in the summons, he or she may still enter a written statement of defence in respect of the balance of the claim. Notwithstanding a judgment upon such consent, the action may proceed in respect of such balance and shall be in all subsequent respects an action for such balance.

(3) The court may grant judgment on any consent signed by the defendant.

(1) (a) A judgment debtor may within 10 days of the granting of a judgment for the payment of money make an offer to the judgment creditor to pay the judgment debt and costs in specified instalments.

(b) Form 9 of Annexure 1 to the Rules may be used for the offer in subrule (1)(a).

(c) The judgment creditor must notify the judgment debtor within 5 days whether the offer is accepted or not.

(d) After acceptance of the offer by the judgment creditor, the judgment debtor must commence payment.

(2) (a) A judgment creditor may after accepting the offer, make a written request to the clerk of the court to order the judgment debtor to pay in accordance with the offer made in subrule (1).

(b) Form 10 of Annexure 1 to the Rules may be used for the written request in subrule (2)(a).

(3) The clerk of the court must within 5 days of the granting of the request made in subrule (2)(a), notify the parties in writing that the offer in subrule (1) constitutes an order of court in terms of section 39 of the Act.

(1) If a judgment for the payment of money is not paid within 10 days or in the case of a failure to pay an instalment at the time and in the manner determined by the court, the judgment creditor may lodge with the clerk of the court an application for the matter to be referred to the clerk of the Magistrates' Court as provided for in section 41 of the Act.

(2) The application in subrule (1) must substantially correspond with Form 11 of Annexure 1.

(1) The process for the execution of any judgment for the surrender of property whether movable or immovable, or for ejectment shall be by warrant signed and issued by the clerk of the court and addressed to the sheriff corresponding substantially with Form 2 or 3 of Annexure 1, whichever is applicable.

(2) The clerk of the court may be approached by any person in whose favour such judgment has been given, to issue a warrant if the judgment has not been satisfied, stayed or suspended.

(3) A warrant may at any time, on payment of the fees incurred, be withdrawn or suspended by notice to the sheriff by the judgment creditor who has issued such process.

(4) Any alterations to a warrant shall be initialled by the clerk of the court and the judgment creditor before it is issued.

(5) A warrant shall be invalid if a wrong person is named therein as a party, but it shall not be invalid merely by reason of the misspelling of any name, or of any error in respect of date.

(6) Where a warrant has been lost or mislaid, an interested party may make written application corresponding substantially with Form 8 of Annexure 1, to the clerk of the court for the issue of a second or further warrant.

(7) Where an application in terms of subrule (6) has been granted—

(a) the provisions of subrules (3) to (5) shall, subject to the necessary alterations, apply to any such warrant issued by the clerk of the court;

(b) the second or further warrant shall clearly be endorsed as follows:
"This second or further warrant ................................................ (describe nature of warrant) was issued by the clerk of the small claims court on .................. (date) and replaces any warrant ............................ (describe nature of warrant) instead of which it is issued or reissued."

(8) When any warrant which has been replaced by a warrant issued in terms of subrule (6) becomes available, it shall immediately be cancelled by the clerk of the court by endorsing across the face thereof between two parallel transverse lines the words:
"Cancelled. Fresh warrant ..................................................... (describe nature of warrant) issued by the clerk of the court .......... (name and signature of clerk of the court), dated .......................................".

(9) The fact that a second or further warrant has been issued and the date thereof, shall be endorsed on the summons with which the action was instituted.

(1) If the authority of a person representing a legal entity is challenged on stated grounds or if the court has reason to doubt the authority of the representative, then the court may require the production of proof that the representative is properly authorised.

(2) If a party dies or becomes incompetent to continue an action, the action shall be stayed until such time as an executor, trustee, guardian or other competent person has been appointed in his or her place or until such incompetence ceases to exist.

(3) Where an executor, trustee, guardian or other competent person has been appointed, the court may, on oral application, order that he or she be substituted for the party who has died or become incompetent.

(1) Except where otherwise provided in these rules, failure to comply with these rules or with any request made in pursuance thereof shall not be ground for the giving of judgment against the party in default.

(2) No process shall be invalid merely by reason of any obvious misspelling, or any errors in respect of figures or dates.

(3) If any party has been misled by any such error in any process served upon him or her, the court may on oral or written application grant such party relief as may be deemed just and may for that purpose set aside the process and rescind any default judgment given thereon.

Where a judgment or order of costs is made against two or more parties, such costs shall be payable by them jointly and severally.

The fees and travelling expenses chargeable by and payable to the sheriffs, shall be those prescribed in Part II of Annexure 2.

(1) Any person carrying on business in a name or style other than his or her own name, or two or more persons who are copartners, may be sued in such name or style or in the name of the partnership.

(2) Subrule 25(1) shall also apply similarly to an unincorporated company, syndicate, association, or stokvel.

(1) A party desiring to review the proceedings in terms of section 46 of the Act must apply to the High Court.

(2) The review of the proceedings referred to in subrule (1) shall only be made on one or more of the following grounds:

(a) Absence of jurisdiction of the court;

(b) Interest in the cause, bias, malice or the commission of an offence referred to in section 46(b) of the Act by the commissioner; or

(c) Gross irregularity with regard to the proceedings.

(3) Every review in terms of this rule must be instituted by a notice of review and founding affidavit substantially in accordance with Form 12 of Annexure 1.

(4) The notice of review and affidavit must set out the proceedings to be reviewed, state the grounds, facts and circumstances relied upon for the review, and must be lodged with the clerk of the court where the proceedings were held.

(5) Within 5 days of the receipt of a notice of review and affidavit, the clerk of the court must notify the commissioner who presided over the proceedings and the opposite party or parties of the review application and further notify them that the notice to review, affidavit, summons, and all documents in the court file are available from the clerk's office.

(6) The commissioner must within 15 days of receiving the notice of review and affidavit lodge with the clerk of the court a statement using Form 13 of Annexure 1 in answer to the allegations made by the applicant.

(7) Within 5 days after the statement of the commissioner in subrule (6) is made available, the party bringing the review may amend, add to, or vary the notice of review and affidavit by using Form 14 of Annexure 1, which Form must be lodged with the clerk of the court.

(8) The clerk of the court must within 5 days of receipt of the Form referred to in subrule (7) which amends, adds to or varies the notice of review, notify the commissioner who presided over the proceedings and the opposite party or parties that the Form is available from the clerk's office.

(9) Should the commissioner or any party affected desire to oppose the granting of the relief prayed for, he or she must, within 5 days of the documents in subrule (8) being made available, lodge with the clerk of the court an affidavit using Form 15 of Annexure 1, in answer to the allegations made by the applicant.

(10) The clerk of the court must, within 10 days after the expiry of the period in subrule (9), send to the Registrar of the High Court a paginated bundle consisting of—

(a) the notice and amended notice of review;

(b) the affidavits lodged by the party bringing the review;

(c) the statement and opposing affidavit, if applicable, of the commissioner;

(d) the affidavits, if applicable, of any affected parties; and

(e) the summons and documents in the court file.

(11) The Registrar of the High Court must, within 10 days of receipt of the paginated bundle, lay the same in chambers before a judge of that division for his or her consideration, directions, and decision on review.

(12) The clerk of the court must keep a register of matters sent to the Registrar of the High Court for review.

(13) The clerk of the court must, within 5 days after receiving the decision made by the Judge on the review, notify the parties and the commissioner of the decision.

(14) (a) Any notice or notification to be given by the clerk of the court to the parties and the commissioner may be done—

(i) in writing, by electronic mail or any other electronic means; or

(ii) orally, by telephone or cellular phone.

(b) Proof of notice or notification given to the parties and the commissioner shall be as follows:

(i) If notice or notification was given in writing, either an electronic mail delivery receipt or data message; or

(ii) if notice or notification was given orally, an endorsement on the file by the clerk of the court recording the date, time, telephone or cellular number, name of person contacted, the message communicated, and whether the message was relayed to the person directly or through voicemail.

(15) No payment as contemplated in Part I of Annexure 2 shall be required by a commissioner in respect of a copy of any document requested by him or her in terms of this rule.

(1) Nothing in these rules shall affect proceedings which are pending at the date of commencement of these rules and such proceedings shall be continued and concluded in every respect as if these rules had not been promulgated.

(2) Proceedings shall, for the purpose of this rule, be deemed to be pending, if at the date of commencement of these rules, summons had been issued and shall be deemed to be concluded when judgment is given.

These rules shall be called the Rules Regulating Matters in Respect of the Small Claims Court and shall commence on a date to be fixed by the Minister.