eBusiness Weekly
Arthur Marara
This is a continuation of the article “Small Claims Court”
Parallel jurisdiction
Section 33 of the Small Claims Court Act give other competent courts the power to determine matters within the jurisdiction of the Small Claims Court Section 17 of the Small Claims Court Act which enables the Small Claims Court to stop proceedings if the case contains difficult or complex questions of law or fact.
Where such proceedings have been stopped, then any party concerned may commence fresh proceedings in another competent court. The Defendant may not plead res judicata and/or lis alibi pendens.
Locus standi
In the past, only natural persons could institute proceedings and juristic persons or companies could only appear as defendants. Legal practitioners as well did not have right of audience in the small claims court.
Now Legal practitioners have the right of audience due to Section 69(4) of the Constitution, which gives everyone the right to be represented by a legal practitioner before any court. The establishment of the Judicial Laws Amendment (Ease of Settling Commercial and Other Disputes) Act, 2017 section 11 provides that natural or juristic persons may institute proceedings in a small claims court assisted by a legal practitioner of their choice.
Commencement procedure
To commence an action, a Plaintiff be it a juristic or natural persons shall deliver a letter of demand to the Defendant. The prescribed form of the letter of demand can be obtained from the clerk of court.
Section 12 of the Judicial Laws Amendment (Ease of Settling Commercial and Other Disputes) Act stipulates that the Defendant must be given 7 days within which to respond to the letter of demand.
In the case that the Defendant does not respond to the letter of demand, Section 22 (2) of the Small Claims Court Act, gives the Plaintiff the right to then issue a summons to the Defendant to settle in terms of the claim set out in the letter of demand.
Summons may be served by the Plaintiff or the Messenger of Court but service must be personal as stipulated by Section 22 (5) of the Small Claims Court Act. Upon receiving the summons, the Defendant has three options they can take
a. As per Section 23 of the Small Claims Court Act, the defendant may, at any time before the date fixed for the hearing of an action in a small claims court, satisfy or offer to satisfy the plaintiff’s claim in whole or in part.
b. Section 22 (6) (a) of the Small Claims Court Act provides that a Defendant may, if he wishes, lodge with the clerk of the small claims court two copies of a written statement setting out any defence he has to the claim or if they have a counter claim
c. And if the Defendant has a counter claim, Section 22 (6) (a) of the Small Claims Court Act, states that he can, lodge with the clerk of the court two copies of a notice setting out his counter claim.
Judgement
Forms in which judgment can be passed by the small claims court are prescribed under section 24 of the Small Claims Court Act.
The court may make an order as to costs which may include the prescribed fee for the issue of the summons and the fees and expenses of the messenger, give judgment for the plaintiff for the whole or so much of his claim as has been proved, give judgment for the defendant in respect of his defence or for the whole or so much of his counter claim as has been proved or dismiss the action if the presiding officer is of the opinion that the claim of neither party has been established in whole or in part.
Enforcement of judgments
The enforcement of judgement in the Small Claims Court is prescribed for in section 28 to 29 of the Small Claims Court Act. The court may issue a garnishee order or a writ of execution against the Defendant’s movables. The monetary jurisdiction disqualifies immovables.
Judgments of the Small Claims Court shall be final and no appeal shall lie from it. However, any party may bring the proceedings on review before the High Court on any grounds on which the High Court may review proceedings of judicial tribunals on.
Conclusion
The small claims court provides an affordable and ease means of settling commercial disputes. Issuance of summons fees for small claims cases are much lower than those of other courts. Standing at US$ 2 in terms of the Small Claims Court (General) (Amendment) Rules, SI 44 of 2023 and the fees and expenses of the messenger.
The small claims court is designed to provide litigation simplicity. Small claims cases are designed to be easy to navigate for people who are not lawyers. This is because the rules of evidence and procedure are less complex. Sections 19 (1) provides that the Small Claims Court Act shall not be bound by the strict rules of evidence.
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a practising attorney, bestselling author, human capital trainer, business speaker, thought leader, law lecturer, consultant, coach, legal proctor (UZ). He has vast experience in employment law and has worked with several corporates, and organisations. He is also a notary public and conveyancer. He is passionate about promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]
