Small Claims Court: suing for up to R30 000 without a lawyer

Can you use it?

• You must be a natural person. Section 7(1) is explicit: only a natural person may institute an action. A company, close corporation, trust or association may only be the defendant. Sole proprietors are natural persons and can sue in their own names, which is how most small business claims get in.
• The claim must be R30 000 or less. If it is worth more you may abandon the excess and claim R30 000, but you may not split one debt into two claims.
• Not against the State or a municipality. Those claims go elsewhere.
• Not for these: divorce, the validity or interpretation of a will, mental capacity, specific performance without an alternative damages claim, perpetual silence, interdicts, or damages for defamation, malicious prosecution, wrongful arrest or imprisonment, seduction or breach of promise to marry.
• Good for: unpaid invoices, a loan to a friend, a deposit not refunded, work paid for and not done, goods that were never delivered, damage to property.

How it works, step by step

1. Send a letter of demand. Section 29(1)(a) requires a written demand delivered by hand or registered post giving at least 14 days from receipt. Since April 2023 it must be on Form 4, which the Department of Justice publishes as form J993. Keep the registered post slip or get an affidavit of hand delivery, because the clerk will ask for proof.
2. Wait out the 14 days. If they pay, done. If they ignore you, go to the clerk of the Small Claims Court for the area where the defendant lives, works or carries on business.
3. The clerk issues the summons. Once satisfied you are a natural person, the clerk sets the hearing date and issues the summons. The clerk will help you fill it in at no charge.
4. Serve it. You may serve it personally or use the sheriff. The sheriff’s fee is the one real cost, and it is recoverable.
5. Prepare your file. There are no pleadings beyond the summons, so everything rides on your documents: the contract or invoice, proof of payment, messages, photographs, and the letter of demand with its proof of delivery. Take three sets, and take them in date order.
6. Go to the hearing. Small claims courts generally sit after normal court hours, often from four in the afternoon. The commissioner runs it: you tell your story, the other side tells theirs, and the commissioner asks the questions. There is no cross-examination by the parties.
7. Get paid. Money is paid directly to you. If it is not paid within ten days, section 41 lets the judgment be enforced in the magistrate’s court as if it had been granted there: you give the clerk an affidavit and the judgment is transmitted for execution. Section 39 also lets the court investigate the debtor’s finances and order instalments.

What it costs, and what you cannot recover

Section 37 limits recoverable costs to the court fees, the prescribed amount for issuing the summons and the sheriff’s fees and travelling expenses. There are no attorney’s fees because there are no attorneys, and the commissioners hear matters without payment. Over fifteen hundred practising lawyers and academics sit as commissioners across the country.

You cannot recover your time, your travel, or interest beyond what the claim already carries. That is the trade for a court that costs almost nothing to use.

What actually goes wrong

• Suing in the company’s name. The most common refusal. If the invoice is in a (Pty) Ltd’s name, that company cannot be the plaintiff here. Consider the magistrate’s court instead.
• A demand that gives less than 14 days, or one that cannot be proved to have been received.
• The wrong court. Jurisdiction follows where the defendant lives, works or trades, not where you are.
• Arriving with a story instead of documents. The commissioner decides on what is in front of them, and a signed quote beats a confident recollection.
• Expecting an appeal. There is none. Review to the High Court is limited to no jurisdiction, bias or corruption, or gross irregularity.
• Winning and stopping there. A judgment is not money. If they do not pay within ten days you must take the enforcement step yourself.

Frequently asked questions