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March 01, 2019

Small Claims Court - jurisdiction increased to R20,000 from 1 April 2019

Institute your own claim!

1.       Who may institute a claim?
    • Anyone except juristic persons such as companies, corporation or association.
    • A person under the age of 18 must be assisted by his/her parent or legal guardian.

2.       Against whom may a claim be instituted?
    • Except for the state, against anyone, including companies, corporations, municipalities or other entities within the area of jurisdiction of the court.

3.       What amount can be claimed?
    • An amount not exceeding R20000.
    • If your claim exceeds R 20000 in value, you can institute a claim for a lesser amount in order to pursue your case in the small claims court.

4.       What matters are excluded from the jurisdiction of the court?
    • Claims exceeding R 20000 in value.
    • Claims against the State.
    • Claims based on the cession or the transfer of rights.
    • Claims for the damages in respect of defamation, malicious prosecution, wrongful imprisonment, wrongful arrest, seduction and breach of promise to marry.
    • Claims for the dissolution of a marriage.
    • Claims concerning the validity of a will.
    • Claims concerning the status of a person in respect of his mental capacity.
    • Claims in which specific performance is sought without an alternative claim for payment of damages, except in the case of a claim for rendering an account or transferring movable or immovable property not exceeding R20000 in value.

5.       Are you compelled to institute your case in the small claims court?
-                      No, you may choose whether you want to institute it in the small claims court or any other competent court.

6.       Legal representation and assistance in the preparation of your claim.
    • Representation by an attorney or advocate is not allowed. You may, however, at your own cost obtains prior advice from an attorney.
    • Legal assistants and clerks of the Small Claims courts will assist you free of charge.

7.       Interpreters
    • Any of the official languages of South Africa may be used in the court.
    • Arrangements for an interpreter must be made with the clerk of the court beforehand if evidence is to be given in language with which one of the parties is not sufficiently conversant.

8.       How to institute a claim
    • Contact the opposing party (the person against whom you are instituting legal proceedings) in person, by telephone or in writing, and request him her or it to satisfy your claim.
    • If the opposing party does not comply with your request, address a written demand to him (setting out the amount of the claim) affording him a minimum of 14 days from the date of receipt of your written demand to satisfy your claim.
    • Deliver the demand by hand or by registered post to the opposing party (the person against whom you are instituting a claim).
    • After a lapse of a period of 14 days, report in person to the clerk of the court with your proof that the demand was delivered to the opposing party.

9.       What to take along to the clerk of the court?
    • Your written demand and the proof (e.g. post-office registered slip) that it was delivered.
    • Any contract, document or other proof upon which your claim is based or that has regard thereto.
    • The full name and address (home and business addresses, if available) and telephone number of the opposing party.

10.    What are the duties of the clerk of the court?
    • He and the legal assistant will examine your document and assist you in drawing up a simple summons.
    • He will inform you of a date and time for the hearing of the case.
    • He will issue the summons and hand it to you.

11.    What do you do with the summons?
    • You can serve the summons on the opposing party in person. (try to obtain an acknowledgement of receipt), OR
    • You can hand the summons, together with the sheriff’s service fees, to the sheriff in whose district the opposing party resides for service on the opposing party.

12.    What do you do then? 
    • Where the sheriff has served the summons, before the date for the hearing of your matter, get the return of service (his written proof that he has served the summons).
    • Keep the contract, document or other proof upon which your claim is based at hand.
    • Inform your witnesses of the date and time the case will be heard and arrange for them to be present in court at the appointed date and time.

13.    Possible steps by the opposing party after receipt of the summons.
    • He may pay you the amount of your claim.
    • He may deliver a written statement, containing the nature of his defense and particulars of the grounds and which it is based, to the clerk of the court and send thereof to the applicant.
    • He may institute a counterclaim by delivering a written statement contains particulars as those required for a summons to the clerk of the court.
    • If a plea or a counterclaim is instituted, the court proceeding must still be attended.

14.    What do you do if the opposing party has satisfied your claim in the meantime?
    • Supply him with a written receipt.
    • Inform the desk of the court immediately that your claim has been satisfied and that you will no longer proceed with the case.

15.    What do you do on the appointed date and time of the hearing?
    • You must appear in court in person.
    • Ensure that you have with you all the documents upon which your claim is based.
    • Ensure that all your witnesses are present.
    • Ensure that you have the written proof that the summons was served on the opposing party.
·                     If you served the summons personally, the clerk of the court will assist you in preparing an affidavit to that effect, to hand up to the Small Claims Court Commissioner.

16.    The hearing
·                     The court procedures are informal and simple.
·                     No advocate or attorney may appear on your behalf.
·                     The commissioner of the court will request you to state your case as concisely as possible.
·                     Answer the questions of the commissioner and submit your exhibits.
·                     No cross- examination between the parties is allowed. With the commissioner’s permission you may, however, put a few questions to the opposing party.
·                     Listen attentively to the opposing party’s explanations and once he has finished talking, bring to the attention of the commissioner any facts which in your opinion he has not presented correctly.
·                     After the commissioner has heard you, your opposing party and any witnesses that may be present, the court can pass judgment. (The commissioner may also indicate that he will notify you of his judgment in writing at a later stage.)

17.    Steps following judgment
·                     In case judgment is given against you, the judgement of the court is final, unless some ground for review exists.
·                     Settle any order for costs that the may make against you.
·                     The only possible costs can be those that the opposing party may have had in respect of fees for the sheriff.
·                     Abide by the decision of court.

18.    If judgement is given in your favour.
·                     Your opposing party will immediately pay you the amount of the judgement, if he has the money available. Give him a receipt for the amount immediately.
·                     In case your opposing party cannot comply with the judgement forthwith, the Court will investigate his financial position and his ability to settle his judgement debt and costs and make an order for payment in monthly installments.

19.    If the judgement debtor fails to comply with the judgement or order of the court.
·                     If the judgement debtor fails to comply with the judgement of the Small Claims court and you want to enforce the judgement, the matter is transferred to the magistrate’s courts and the execution procedure, as prescribed by the Magistrate’s Courts Act, 1944 (Act 32 of 1994), is followed.
·                     It is advisable to make use of legal representation with this procedure.

Newly Single? How to Financially Get Over Your Ex

This article was originally published at HiCharlie.com

Some of the content is American based but is still very useful in a South African context.

Breakups are painful and confusing. All of a sudden, your life is completely different, and you now need to deal with everything on your own — including financial matters. Even though your heart is bruised, and mind is dazed, you need to take charge of your money and financially get over your ex. This is especially true if they handled the household budget or were the main breadwinner.

To avoid adding money misery to your heartache, follow these 10 tips:

Adjust Quickly
It’s natural to wallow in the pain, binging on ice cream and Netflix. However, you need to acknowledge your new reality as soon as possible. If you don’t, you could find yourself in a financial world of hurt. Once you’ve come to grips, you can make a plan.

Determine Your Living Situation
If you and your ex live together, you need to decide who stays in the house or apartment. If unmarried with the mortgage or lease in only one of your names, the decision is easy. But, if it’s a joint venture, you’ll need to partner on a solution.

For owned property, the fairest route may be to sell and split the proceeds. (Or, one of you could buy out the other.). If you are navigating a divorce, the terms of the divorce will decide what happens to the home.
For rented property, you’ll need to involve your landlord. They can make official changes to the lease so that you or your ex is no longer legally responsible for paying rent. If neither of you can afford the apartment on your own, you may need to sublet, re-let, or break the lease.

Regardless of whether you’re staying or going, you need to consider the financial impact. If your ex is leaving, you’ll lose their income. If you’re leaving, you’ll lose their income and need to come up with the cash to move.

Take Stock of Possessions & Debt
A moment ago, everything was shared. Now, it’s a definite case of yours and theirs. Regardless of marital status, anything owned before the relationship typically stays with you. If you’re not married, you and your ex should divvy up items acquired together or choose to sell them and share the profits. Joint bank accounts should be split fairly and then closed. Further, if you incurred debt together, you should divide responsibility for the balances and close those accounts (preventing your ex from racking up more debt you’d be liable for). Typically, unless there is a dispute, legal intervention is not required.
If you’re getting divorced, your state laws will determine how assets and debts are divided (prenuptial agreements will have an impact as well). In most states, the court will distribute assets and liabilities fairly (not necessarily equally). In the nine community property states, everything obtained during the marriage is split 50-50. Be sure to understand the terms of your divorce or custody arrangement, if applicable, so that you can take advantage of everything that you’re entitled to.

Tip: Don’t forget to change the name on the utility accounts! You don’t want to be responsible for paying for electricity, heat, water, or internet after you move out.

Open Up Your Own Accounts
To move forward, you need to completely separate your finances from your ex. After closing your jointly held asset and debt accounts, open up any new ones that you need. Make sure that anything tied to money is in your name only.

Make (and Stick to) a Budget
You’re now in charge of running your own household and need to set a new budget to reflect that. Add up all of your expenses, including debt payments. Then, add up all of your income sources, factoring in alimony/child support, if applicable.

If your income falls short of your expenses, you need to make quick adjustments to your spending/find ways to increase cash flow. And, even though it’s tempting, try to avoid post-breakup retail therapy, which could cause you more grief and regret.

Tip: If you’re new to budgeting (or are a little rusty), try using a worksheet like this. There are also countless online tools and calculators like these that can help. Remember, Charlie can help you track your debt and spending so that you can stick to your newly created budget.

Update Legal Documents
Unless otherwise required by the terms of your divorce, now’s the time to take your ex out of your will and off of your list of beneficiaries. Be sure to update these documents and name new beneficiaries.

Understand Tax Implications
If you’re divorcing, consider speaking with an accountant to see how your tax liability will change. Generally, single people pay higher taxes. If your income tax withholding is set as “married,” you may want to adjust it by filling out a new w4 form with your employer(s).

Revisit Your Retirement Plan
Since you’re now flying solo, you should re-evaluate your retirement plans. Of course, a lot can change between now and your golden years, but you should ballpark how much money you’ll need if you’re just covering yourself. If you’re divorcing, retirement plan assets accumulated while married are subject to division as part of the proceedings. This monetary gain (or loss) will impact how much more you need to save. Finally, if you’re going to be financially strapped for awhile, consider if it makes sense to suspend contributions to your retirement plan until you’re back on your feet.

Keep Tabs on Your Credit
Your credit situation will change as you close some accounts and open others. Keep a close eye on your credit report to make sure all activity reported is accurate. If you haven’t already, remove your ex as an authorized user on any accounts that you’re keeping.

Tip: If you think your ex may purposefully use your cards, consider changing your credit card account numbers or freezing your credit.

Get Help
If you’re feeling lost and overwhelmed, ask for help. This is a difficult time and there are resources to make this transition easier. Your family and friends can offer support, encouragement, and distraction from the current drama. Community services can connect you with food, housing assistance, career development resources, and more if you’re feeling pinched. Finally, professionals can help with the legal, mental health, and financial planning aspects of this challenging chapter.
This article is for general guidance only. Since every situation is different and laws vary widely from state to state, you’re encouraged to seek the advice of a qualified professional before acting.

Final Thoughts
Ending a relationship is one of the most difficult parts of the human experience. In a way, your world is ending. But, in a way, it’s just beginning, too. If you follow the tips in this article and lean on your support system, you’ll be well on your way to owning (and loving) your new single, empowered life.