The Minister of Justice has under and by virtue of the powers vested in him by section 25(1) of the Small Claims Courts Act, 1984 (Act 61 of 1984), made the rules contained in the Annexure hereto regulating matters in respect of Small Claims Courts, with effect from 1 October 1985.
Description Rule No.
Actions by and against partners, a person carrying on business in a name or style other 27 than his own name, syndicate or association.
'the Act' means the Small Claims Courts Act, 1984 (Act 61 of 1984).
(a) The Minister may establish a board as contemplated in section 25(1) (d) of the Act for a district or area and may appoint as many members to such board as he deems fit.
A member of such a board shall hold office during the Minister's pleasure.
The Minister shall appoint the chairman and vice-chairman of the said board.
If the chairman and vice-chairman are not available, a chairman shall be appointed by the members present.
The Minister may at any time dissolve the board.
any other matter which may be necessary for the proper functioning of the court.
The summons filed in a case shall be numbered by the clerk of the court with a consecutive number for the year and recorded in a register.
Every document afterwards served or delivered in such case shall be marked with such number by the party delivering it and shall not be received by the clerk of the court until so marked.
All process delivered to the clerk of the court to be filed of record and any process of the court shall be filed of record under the number of the respective action.
Copies of such records may be made by any person in the presence of the clerk of the court.
It shall be the duty of the clerk of the court to sign (manually or by facsimile of his signature), date and issue all such process of the court as may be sued out by any person entitled thereto.
Any act or notice to be performed or signed by the clerk of the court in terms of these Rules may be performed or signed by a legal assistant or a commissioner except that no commissioner shall write out a statement or process for any party.
Subject to the provisions of section 29(2) of the Act, all process of the court shall be served or executed through the sheriff. The sheriff shall be, under an obligation to render a service only if the party who desires the service has remunerated him beforehand for the said service.
Service or execution of process of the court shall, after payment of the remuneration, be effected without any avoidable delay, and the sheriff shall, in any case where resistance to the due service or execution of the process of the court has been met with or is reasonably expected, have power to call upon any member of the Force as defined in section 1 of the Police Act, 1958 (Act 7 of 1958), to render him aid.
in writing notify the party who sued out the process that he has been unable to effect service or execution, and of the reason for such inability, and return the said process to such party, and shall keep a record of any process so returned.
Although a sheriff shall be under an obligation to render a service only if he has been remunerated for the said service beforehand, he shall nevertheless, after service or attempted service of any process, specify the total amount of his charges on the original and all copies thereof and the amount of each of his charges separately on the return of service.
The legal assistant shall render to any person who has so requested him advice in regard to any action which falls within the jurisdiction of the court.
If he is so requested, the legal assistant shall render assistance with the drafting of the process of court.
Any act to be performed by the legal assistant in terms of these Rules may be performed by the clerk of the court.
'I,(full name), do hereby swear/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 the language I may be called upon to interpret into either of the official languages and vice versa .'.
Such oath or affirmation shall be taken or made and administered in the manner prescribed for the taking or making and administration of an oath or affirmation.
'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.'.
'I solemnly affirm that the evidence that I shall give, shall be the truth, the whole truth and nothing but the truth.'.
The validity of an oath duly taken by a witness shall not be affected if such witness does not on any of the grounds referred to in subsection (1) (b) decline to take the oath.
The letter of demand referred to in section 29(1) of the Act shall at least contain particulars of the facts upon which the claim is based and the amount.
The plaintiff shall 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.
The summons shall be served on the defendant not less than 10 days before the date of trial.
The summons shall be signed by the clerk of the court and shall bear the date of issue by him.
The summons shall conform or be as close as possible to Form 1 of Annexure 1.
The summons shall be signed by the plaintiff.
The full address of the plaintiff shall be given in the summons.
38, 39, 40 and 43 of the Act.
The particulars of claim shall show the nature and amount of the claim or claims, as the case may be.
The particulars shall also show any abandonment of part of the claim under section 18 of the Act and any set-off under section 19 of the Act.
Where the summons contains more than one claim, the particulars of each claim and the relief sought in respect of each claim shall be stated separately.
show the first name, surname, sex and the residence or place of business of the plaintiff.
Subject to the provisions of this rule, a summons may before service be amended by the plaintiff as he thinks fit.
Any alteration or amendment of a summons before service and whether before or after issue, shall, before the summons is served, be initialled by the clerk of the court on the original summons, and until so initialled such alterations and amendments shall have no effect.
The plaintiff shall make as many copies of the summons as there are persons to be served.
On demand, the original of the summons, shall be exhibited to the person upon or against whom the summons is served.
Where the person to be served keeps his residence or place of business closed and thus prevents the plaintiff from serving the summons, the plaintiff shall be authorised to call upon the sheriff to serve the summons.
The plaintiff shall deliver the original summons and the return of service to the clerk of the court as soon as possible.
A party requiring service of any process to be made by the sheriff shall deliver to him the original of such process, together with as many copies thereof as there are persons to be served.
The sheriff shall, on demand by the person upon or against whom process is served, exhibit to him the original of the process except where service has been effected by post, in which case the original may be inspected where it is filed of record.
Where the person to be served keeps his 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.
Where the sheriff is unable after 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 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.
If it comes to the sheriff's knowledge that the person on whom service must be made has a new residential address, the sheriff shall serve the process on the person at his new address.
Where the relief claimed in any action is limited to an order for ejectment from certain premises or land or a judgment for the rent thereof 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 question.
Where the court is satisfied that service cannot be effected in any manner hereinbefore prescribed and that the action is within its jurisdiction, it may make an order allowing service to be effected by the person and in the manner specified in such order.
Where service of process may be effected by registered post such service shall, unless otherwise provided, be effected by the sheriff placing a copy of such process in an envelope and addressing and posting it by prepaid registered letter to the address of the party to be served and making application at the time of registration for an acknowledgment by the addressee of the receipt thereof as provided in regulation 44(5) of the regulations published under Government Notice R550 of 14 April 1960.
A receipt form completed as provided in regulation 44(8) of the said regulations shall be a sufficient acknowledgment of receipt for the purposes hereof.
by registered post: Provided that where such service has been effected in the manner prescribed by paragraphs (b) , (c) or (e) , the sheriff shall 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, body corporate or institution affected by the process, and where such service has been effected in the manner prescribed by paragraphs (b) , (c) or (f) , the court may, if there is reason to doubt whether the process served has come to the actual knowledge of the person to be served, and in the absence of satisfactory evidence, treat such service as invalid.
in the case of a syndicate, unincorporated company, club, society or church, when service may be effected 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 hereinbefore prescribed.
If no such acknowledgment be received the sheriff shall state the fact in his return of service of the process.
'This letter must not be readdressed. If delivery is not effected before 19, this letter must be delivered to the sheriff of the small claims court at......................................'.
A statement in terms of section 29(3) of the Act shall be signed by the defendant.
For the purposes of this rule 'defendant' includes any person upon whom a summons has been served and who alleges that he is not the defendant cited in the summons and enters appearance to defend on that ground.
A claim in reconvention shall be made by stating in the written statement of defence such particulars of the claim in reconvention as are required in terms of rule 10 in respect of a claim.
It the defendant's consent to judgment is for less than the amount claimed in the summons, he 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.
lodge with the clerk of the court the copy of the summons served on him with the form of consent endorsed thereon duly signed by him.
A party who desires to lodge a statement of defence or another document in regard to the action, may before delivery amend the statement of defence or other document as he deems fit.
The process for the execution of any judgment, for the surrender of property whether movable or immovable, or for ejectment shall be by warrant issued and signed by the clerk of the court and addressed to the sheriff.
Such process may be sued out by any person in whose favour any such judgment shall have been given if such judgment is not then satisfied, stayed or suspended.
Such process may at any time, on payment of the fees incurred, be withdrawn or suspended by notice to the sheriff by the party who has sued out such process. A request in writing made from time to time by such party to defer execution of such process for a definite period not being longer than one month shall not be deemed to be a suspension.
Any alterations in such process shall be initialled by the clerk of the court before it is issued by him.
The clerk of the court shall at the request of the party entitled thereto reissue process referred to in subrule (1) without the court having sanctioned the reissue.
Any such process shall be invalid if a wrong person is named therein as a party, but no such process shall be invalid merely by reason of the misspelling of any name therein, or of any error in respect of date.
Where any warrant has been lost or mislaid, the clerk of the court may upon the written application of any interested party issue a second or further warrant on such conditions as he may determine.
'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 ................................... (described nature of warrant) instead of which it is issued or reissued.'.
' Cancelled . Fresh warrant (describe nature of warrant) issued by the clerk of the court dated '.
Such endorsement shall be signed and dated by the clerk of the court.
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.
The withdrawal of an action or a decree of absolution from the instance shall not be a defence to any subsequent action.
It shall not be necessary for any person to file a power of attorney to act on behalf of a legal entity, but the authority of any person acting for such a party may be challenged by the other party during the proceedings after he has noticed that such person is so acting and thereupon such person may not without the leave of the court so act further until he has satisfied the court during the proceedings that he has authority so to act.
If a party dies or becomes incompetent to continue an action the action shall thereby be stayed until such time as an executor, trustee, guardian or other competent person has been appointed in his place or until such incompetence shall cease to exist.
Where an executor, trustee, guardian or other competent person has been so appointed, the court may, on verbal application, order that he be substituted in the place of the party who has so died or become incompetent.
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.
Where any provision of these Rules or any request made in pursuance of any such provision has not been fully complied with the court may on application order compliance therewith within a stated time.
Where any order so made is not fully complied with within the time so stated, the court may forthwith give judgment in the action against the party so in default.
No process shall be invalid by reason of any obvious error in spelling or in figures or of date.
If any party has in fact been misled by any such error in any process served upon him, the court may on verbal application grant him such 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 persons it shall, unless the contrary is stated, have effect against such persons severally as well as jointly.
The fees and travelling expenses to be taken by a sheriff shall be those prescribed in Part II of Annexure 2.
Any person carrying on business in a name or style other than his own name or two or more persons who are co-partners may be sued in such name or style or in the name of the partnership.
The provisions of this rule shall also mutatis mutandis apply to an unincorporated company, syndicate or association.
Description Form No.
Summons commencing 1 action.
Warrant for delivery of 2 goods.
Warrant of 4 ejectment.
Issued by Case No..
1 You are hereby summoned to appear personally before this court on the day of19...... at ................h...... to admit or deny your liability for the undermentioned claim.
If you deny liability, you may at any time before the trial deliver to the clerk of the court at.
(address) a written statement setting out the nature of your defence and the particulars upon which it is based and a copy of the statement must then be delivered to the plaintiff.
(i) for arrears of rent due in respect of the defendant's tenancy of.
Notice of * abandonment of part of claim/deduction of admitted debt.
Take notice that the plaintiff hereby * abandons the undermentioned part of the claim/deducts the admitted debt set up by him in this summons.
day of, 19.
4 (a) Take notice that if you fail to appear in Court on the trial date after a summons has been served on you, judgment may be obtained against you by the plaintiff unless you have previously admitted liability to the plaintiff.
Money payable in terms of a judgment or order of court shall be paid directly to the judgment creditor.
If you admit the claim and wish to consent to judgment or wish to undertake to pay the claim in instalments or otherwise, you may approach the plaintiff.
RULES REGULATING MATTERS IN RESPECT OF SMALL CLAIMS COURTS Page 16 of 21 5 Take notice that you and all other persons are hereby interdicted from removing or causing or suffering to be removed any of the furniture or effects in or on the premises described in the particulars of claim endorsed hereon which are subject to the plaintiffs hypothec for rent until an order relative thereto shall have been made by the court.
and if he has let it be known that he is not in a position to comply with the judgment, the court may in chambers institute an investigation into the judgment debtor's financial position and his ability to pay the judgment debt and costs.
7 The sheriff's fees areR.
I admit that I am liable to the plaintiff as alleged in this summons (or to the amount of R and costs to date) and I accordingly consent to judgment.
In the Small Claims Court for the Area of.
Case No. 19.
And return to this court what you have done by virtue hereof.
Dated thisday of, 19.....
Case No. of 19.
Whereas in this action the said plaintiff on the.
Dated thisday of, 19......
for every photocopy of an A4 size page or part thereof: R0,50.
within a distance of 20 kilometres but further than 12 kilometres from the courthouse of the magisterial district within which the summons shall be served: R15,00.
within a distance of 20 kilometres but further than 12 kilometres from the courthouse of the magisterial district within which the summons shall be served: R12,00.
within a distance of 20 kilometres but further than 12 kilometres from the courthouse of the magisterial district within which the warrant shall be executed: R20,00.
Where the warrant is one for ejectment, a further fee of R5,00 shall be paid after the execution thereof for each person over and above the person named or referred to in the warrant of ejectment in fact ejected from separate premises: Provided that where service on any person other than the judgment debtor is necessary in order to complete the execution, the fees mentioned in item 1 (a) may be charged for each such service.
within a distance of 20 kilometres but further than 12 kilometres from the courthouse of the magisterial district within which the warrant shall be executed: R16,00.
3 If it is necessary for the sheriff to travel further than 20 kilometres from the court-house of the magisterial district within which a process must be served or executed, a travelling allowance of 70c per kilometre for each kilometre or part thereof travelled further than the aforesaid distance to and from the place of service or execution shall be allowed in addition to the fees mentioned in item 1 (a) (iii), 1 (b) (iii), 2 (a) (iii) or 2 (b) (iii), as the case may be.
4 (a) In respect of the discharge of any official duties other than those mentioned in items 1 and 2, a travelling allowance of 70c per kilometre for each kilometre or part thereof shall be payable to the sheriff for the forward and return journey, which shall be calculated from the court-house of the magisterial district within which the official duty is to be performed.
A travelling allowance shall include all the expenses incurred in travelling, including train fares.
where service of the same process has to be effected on more than one person by a sheriff within the area served by him, only one charge for travelling shall be made.
5 For the ejectment of a defendant from the premises mentioned in the warrant of ejectment: R5 for the first 30 minutes and thereafter R15 per hour or part thereof.
6 In addition to the fees prescribed, the sheriff shall be entitled to charge the amount paid by him for telephone calls.
7 For the writing of a necessary letter to an interested party in the matter: R2.
8 For the copying of the necessary documents relevant to a process handled by the sheriff: 50c per A4 size copy.
the mandator requests, before an attempted service or execution of the process, that it be returned to him: an amount of R2,50.
10 In addition to the fees prescribed in this Annexure, the sheriff shall be entitled to the amount he actually disbursed for postage.