Questions and Answers
Real questions from readers, answered by Bert, sorted by topic.
Administration Orders
Q: Tienie Cook asked: I lent a friend money, and our verbal agreement was that she would repay the money in monthly instalments of R4 500.
She only paid R1 000 per month, and her excuse was that a bank had placed her under Administration Order.
Without a written agreement, what are my chances of getting a judgment against her in the Small Claims Court?
A: Unfortunately, the Administration Order takes the matter out of the jurisdiction of the Small Claims Court.
The Administration Order appoints an “Administrator” to take control over your friend’s financial affairs.
Thus, you will have to lodge your claim with the Administrator, which gives you no choice but to accept the monthly payments as determined by the Administrator.
Had there not been an Administration Order to block you, your witness would have to be present in court with you, to testify on your behalf that he/she was present when the undertaking to pay off was made.
Without the witness, you would need written proof of the loan, such as an IOU with the defendant’s signature on it.
If the defendant denies the loan in court, and you have no proof of it, it will be her word against yours, and your case is likely to be “thrown out’’.
Car transactions
Q: I purchased a car about 3 months ago from private seller who told me the car had been resprayed.
It has since been brought to my attention that there is serious accident damage to the car – the car is in effect, 2 cars joined together.
I would not have bought the car if I had known this.
I paid R27 000 for the car but its value, if I sell honestly (I wouldn't sell it any other way), is closer to R15 000.
Can I claim the R12 000 difference through the Small Claims Court, on the basis that the seller must have known about the damage, but chose not to inform me?
A: Yes, you can, but you must make sure that you have good evidence – unless it’s very obvious that the car is two-in-one, or the seller has admitted it.
You should take an expert to court, to explain why it is apparent that the car is in fact 2 cars joined together, and what the diminished value is.
Complicated claims (and splitting of claims)
Q: Anthony wrote: A major auto company in Cape Town incorrectly diagnosed the cause of an engine misfire, and presented me with a diagnosis invoice for R1 179.90 plus a quotation to repair the engine (R252 000) and one to replace the engine (R141 000).
I took the car to respected motor engineers to repair the engine, using the reports as the basis for the work to be done.
The engineers discovered that the original diagnosis was incorrect, and that the fault was a burned exhaust valve.
I wish to claim from the auto company the R13 000 it cost me for the correct diagnoses, plus the cost of new parts, plus the engineering labour costs.
Would this amount to the “splitting of claims” ?
A: Yes, this does amount to the splitting of claims, which is not allowed, because all the claims arise from the same cause of action.
In any event, the Commissioner is likely to declare the claim too complicated for the small claims system.
The system requires the adjudication of any particular claim to last no more than 30 minutes, whereas this claim is likely to involve intricate expert evidence which, if contested, could take a few hours, if not longer.
Counter claims
Q: Rudi Styger asked: Can I now, already, file a counter claim for my travelling costs of 300 km plus the day’s leave I have to take to defend a malicious claim which I know will not succeed?
Otherwise, who will be paying my costs to attend these proceedings at 5pm, 150 km from my home . Here’s what happened:
I was the chairman of an association formed to collect arrear levies from residents at the complex where I live.
The association itself received and receipted all funds received, not me.
I am now being held liable for such funds and arrear levies as were received by the association, which has since been disbanded, and I am cited as defendant in the claim.
This is a malicious claim, without validity, which stands to be dismissed.
I need to know if I can now, already, put in a counter claim for my travelling costs for the 300km return trip to the Small Claims Court.
A: The Small Claims Act does not have a remedy for wasted expenses, arising from a weak or incorrect claim.
There is also no provision in the SCC Act for costs against a plaintiff, which would cover Rudi’s travelling expenses etc.
Rudi must file a plea setting out his defence, namely that the wrong person (himself) has been cited as defendant, and requesting the plaintiff to withdraw the case.
He should also file a conditional counterclaim for damages, namely his out of pocket expenses for attending court, the counterclaim being conditional on the court finding that the claim is indeed without foundation, for the reasons set out in the plea.
Although there will still not really be a legal basis for claiming the expenses in the counterclaim, the counter claim might just result in the claim being withdrawn.
Of course, if it is not withdrawn, Rudi will have to travel the 300 km anyway.
Finally, Rudi should also file a letter addressed to the Commissioner (judge), explaining that it is very inconvenient and costly for him to come to court to defend an action that clearly has no merits,
The letter should ask the Commissioner to direct preliminary enquiries to the Plaintiff and, if the Commissioner decides that the claim is in fact valid – unlikely - the letter should also ask the Commissioner to postpone it to a date on which Rudi will attend.
Although very doubtful in the circumstances, there is a risk that the Commissioner may decline a postponement, proceed with the claim and order a default judgment against Rudi in his absence.
If this happens, Rudi can still apply for rescission (setting aside) of the default judgment. The rescission will, no doubt be granted, and Rudi will then have an opportunity to present his defence to the claim, namely that he was mistakenly cited as the defendant.
Documents and Witnesses
Q: I sent a letter of demand for (a) short repayment of rental deposit, (b) denial of use of carport which use was part of the rent, and (c) gross negligence in the matter of a burglary at my rented premises. Please advise how important witnesses would be in terms of the first two issues, as I have documents and photographs. Can I use sworn affidavits if witnesses are reluctant to appear or have difficulty doing so.
I also have photographs of the carport filled with building material - the owners have been renovating for the past year and have used the carport for this purpose against my protest. Is this good evidence?
A: The issues, as I understand your email, are (1) short-payment in refund of deposit, (2) denial of use of carport and (3) negligence concerning a burglary at the premises.
As for (1), you will need to produce your bank statement, reflecting the short-payment.
As for (2), a witnesses would be helpful to support your claim, and
As for (3), photographs should suffice for the burglary damage.
Affidavits may be used, but there might be problems if the Commissioner wants to question the people who signed them.
If the Commissioner insists on the presence of the person making the Affidavit, you can always ask for a postponement to ensure his/her attendance.
Illegal Evictions - the PIE Act
Q: My husband and myself were evicted from our home without valid reason, and we moved under protest to another home. Can we claim the cost of moving from the property owner?
A: The Prevention of Illegal Evictions Act, also known as the PIE Act, compels a property owner to obtain an eviction order via proceedings in the Magistrate’s Court, before the property owner may evict tenants who refuse to vacate.
The purpose of the PIE Act is to protect lawful tenants from physical eviction.
In practice, the tenants are served with a notification that the property owner is to apply for their eviction, and this gives the tenants an opportunity to attend the proceedings in order to oppose the application.
If the tenants have valid reasons, the eviction order is likely to be refused.
In your case, because you complied with the request to vacate, the PIE Act does not apply.
Had you refused to leave, the landlord would have been compelled to institute eviction proceedings, which you could have opposed on the basis that you had not breached the lease agreement, and had a lawful right to occupy the house.
What has in fact transpired is that the landlord, having purported to cancel without valid reason, in fact repudiated the lease agreement.
By vacating the premises, you accepted the repudiation, thereby terminating the lease agreement.
Due to the landlord’s unlawful repudiation, you may claim contractual damages, namely the cost of relocating plus the refund of your damages deposit, provided your claim does not exceed the small claims maximum.
Jurisdiction 1
Q: Alisdaire Walt asked: I have a small one-man vehicle repair workshop in Queenstown. I did some work for a contractor, who lives in Jeffreys Bay. Can I summons him to the Queenstown Small Claims Court?
A: You have to take your claim to (a) the court where the Defendant lives or (b) where the entire cause of action arose.
Because jurisdiction can be a very complex issue, the Golden Rule is (a) above.
However, if the repair agreement was concluded in Queenstown, the repair work done in Queenstown, and payment was to be made in Queenstown, then the entire cause of action arose in Queenstown, and Alasdair can sue his client in the Queenstown Small Claims Court.
Jurisdiction 2
Q: if the defendant is in pta and i am in pe,the agency i want to sue is in pta and i have rented the flat there, can i do this via e mail?
A: This question is very garbled, and difficult to understand.
I do not understand, for example, what you mean by “can I do this via email?” I do not understand what is meant by “this”, but I gather that you mean can you send the Letter of Demand by email.
First and foremost, you need to ensure that the agent is the correct person to take to the Small Claims Court.
Bearing in mind that the agent merely acts on behalf of his client, the property owner, and if you take the agent to court he/she may well thwart your claim with the defence that he/she is incorrectly cited as the defendant.
The agent may not refund your deposit without authorisation from his client (the property owner).
It is thus essential to establish who and where the property owner is, and to focus your claim on him/her.
As to jurisdiction, you will have to go to the court where the PROPERTY OWNER lives (Pretoria?)
As to email-delivery of the small claims LOD, the Small Claims Act makes no provision for sending the LOD by email – it has to be hand-delivered or sent by registered mail.
However – and this is a BIG however – if you have already sent the LOD by email, and you have proof that the Defendant has in fact received it, such as a reply or SMS from him, that will suffice, so long as you are able to produce the Defendant’s response in court.
Letter of Demand - must be in the name of the claimant
Q: Nola Koekemoer asked: Can the Letter of Demand (LOD) be from my husband and myself?
A: Without any further information, that might result in a different answer, the answer is that the LOD must be from whoever is the plaintiff.
Letter of Demand - sent by email
Q: I have received an LOD via email – the claimant did not hand-deliver it or mail it by registered post to us. Is this legal? What do I do if a summons arrives?
A: The Small Claims Court Act, promulgated way back in 1984, stipulates that the LOD has to be either hand-delivered or sent by registered mail.
However, because you have actually received it, it does not matter that it was not sent by registered mail, or not hand-delivered.
It would be the height of pointlessness to argue in court that the LOD is invalid because it was sent by email and not as stipulated by the Act.
If a summons arrives, you must attend the hearing.
NGOs
Q: I am the finance manager for an NGO, which has been in existence for 37 years, looking after 85 profoundly mentally and physically challenged residents.
We charge parents 13% of gross income as our fee, with a minimum of R975.71 and a maximum of R7500.00.
One of our parents is R12 535 in arrears and refuses to increase her payment, in order to pay off her arrears. Are we entitled to take her to Small Claims Court?
A: Yes, provided the NGO is not a registered company or a CC, as companies, CCs, incorporated partnerships and Trusts do not have access to the small claims system as claimants.
The claim must be in the name of the NGO itself, and not the financial manager or anyone else in the NGO’s employ.
Procedure
Q: Eric Mukhola bought a used car for R9 500, intending to use it as a meter-taxi.
However, in order to register the vehicle in his name, he needed the vehicle’s de-registration paper, a document that should have been given to him as part of the transaction, but was not.
The dealer said he had bought the vehicle without any papers, and that Eric had to approach the original owner himself, for the document.
Eric did so, only to be told by the original owner that she had indeed sold the vehicle to the dealer with the papers.
Understandably, Eric wanted the transaction cancelled, and his money refunded, but how to go about it?
A: Eric had a valid claim in the Small Claims Court, but his Letter of Demand (LOD), instead of merely demanding the refund, had to demand that the de-registration papers be handed to him within 14 days, failing which summons would be issued for the refund of his R9 500.
The wording of the LOD would make the dealer realise that Eric was no “push over”, and that he “meant business”.
Procedure: Wrong person cited as defendant
Rob Malan had a claim against a company, but mistakenly issued summons against the company’s CEO as the 1st Defendant, and cited the company itself as the 2nd defendant.
Is it necessary for him to withdraw the entire claim, and to start afresh, with a new summons issued against the company alone?
Answer:
It is not necessary to withdraw the entire action and start afresh.
1. If the summons has not yet been served on the Defendants, Mr Malan can simply amend the summons himself by deleting the reference to the first defendant, and have the clerk of the Small Claims Court initial the amendment in terms of Rule 11.
The amended summons may then be served on the second defendant only.
2. If the summons has been served, on both defendants, Mr Malan must withdraw his claim against the CEO.
There are no specific provisions in the Small Claims Act and Rules setting out the process,
However, it would be appropriate for Mr Malan to send a written notice to both defendants, stating that he will not proceed against the first defendant at the hearing.
Refugees
Q: Will it be a hindrance to my case if the person from whom I wish to claim is a refugee?
A: Thanks for an easy question! The short answer is no, provided you have a physical address at which the summons can be hand-delivered, either by yourself, someone on your behalf or the Sheriff.
Just bear in mind that the refugee, unless he has a thriving business, is unlikely to have any money, which might cause problems later when you try to enforce your judgment .
Representation in court
Q: Must a Small Claims case be handled personally, or can I represent someone else, and if so, under what conditions.
A: Both parties (plaintiff and defendant) have to attend the proceedings, and present their cases personally.
No representation is allowed.
Splitting of claims
Q: Anthony wrote: A major auto company in Cape Town incorrectly diagnosed the cause of an engine misfire, and presented me with a diagnosis invoice for R1 179.90 plus a quotation to repair the engine (R252 000) and one to replace the engine (R141 000).
I took the car to respected motor engineers to repair the engine, using the reports as the basis for the work to be done.
The engineers discovered that the original diagnosis was incorrect, and that the fault was a burned exhaust valve.
I wish to claim from the auto company the R13 000 it cost me for the correct diagnoses, plus the cost of new parts, plus the engineering labour costs.
Would this amount to the “splitting of claims” ?
A: Yes, this does amount to the splitting of claims, which is not allowed, because all the claims arise from the same cause of action.
In any event, the Commissioner is likely to declare the claim too complicated for the small claims system.
The system requires the adjudication of any particular claim to last no more than 30 minutes, whereas this claim is likely to involve intricate expert evidence which, if contested, could take a few hours, if not longer.
Summons – delivery of summons at Defendant’s place of work
Q: May a summons be served on the defendant at his place of work?
A: yes
Tracing Agents
Q: Can the cost of tracing agents to locate the whereabouts of a Defendant, who has disappeared, be included in the expenses incurred by the Plaintiff?
A: No, the only costs allowed are the Sheriff’s fees, for delivery of the summons.
However, the Plaintiff can claim the tracing fees as damages, in addition to the claim itself, provided the claim in its entirety does not exceed the small claims maximum (R30 000 from 1 August 2026; R15 000 when Bert answered this).
If tracing fees are added to the claim, the Plaintiff will have to persuade the Commissioner that the Defendant was deliberately “ ducking and diving”, and that this necessitated the use of a tracing agent.
Travelling expenses
Q: Rudi Styger asked: Can I now, already, file a counter claim for my travelling costs of 300 km plus the day’s leave I have to take to defend a malicious claim which I know will not succeed?
Otherwise, who will be paying my costs to attend these proceedings at 5pm, 150 km from my home . Here’s what happened:
I was the chairman of an association formed to collect arrear levies from residents at the complex where I live.
The association itself received and receipted all funds received, not me.
I am now being held liable for such funds and arrear levies as were received by the association, which has since been disbanded, and I am cited as defendant in the claim.
This is a malicious claim, without validity, which stands to be dismissed.
I need to know if I can now, already, put in a counter claim for my travelling costs for the 300km return trip to the Small Claims Court.
A: The Small Claims Act does not have a remedy for wasted expenses, arising from a weak or incorrect claim.
There is also no provision in the SCC Act for costs against a plaintiff, which would cover Rudi’s travelling expenses etc.
Rudi must file a plea setting out his defence, namely that the wrong person (himself) has been cited as defendant, and requesting the plaintiff to withdraw the case.
He should also file a conditional counterclaim for damages, namely his out of pocket expenses for attending court, the counterclaim being conditional on the court finding that the claim is indeed without foundation, for the reasons set out in the plea.
Although there will still not really be a legal basis for claiming the expenses in the counterclaim, the counter claim might just result in the claim being withdrawn.
Of course, if it is not withdrawn, Rudi will have to travel the 300 km anyway.
Finally, Rudi should also file a letter addressed to the Commissioner (judge), explaining that it is very inconvenient and costly for him to come to court to defend an action that clearly has no merits,
The letter should ask the Commissioner to direct preliminary enquiries to the Plaintiff and, if the Commissioner decides that the claim is in fact valid – unlikely - the letter should also ask the Commissioner to postpone it to a date on which Rudi will attend.
Although very doubtful in the circumstances, there is a risk that the Commissioner may decline a postponement, proceed with the claim and order a default judgment against Rudi in his absence.
If this happens, Rudi can still apply for rescission (setting aside) of the default judgment. The rescission will, no doubt be granted, and Rudi will then have an opportunity to present his defence to the claim, namely that he was mistakenly cited as the defendant.
Validity of claim - 1
Q: I would like to claim a deposit back and rental paid for 1 month for premises that I do not deem liveable.
My partner and I moved into a townhouse that was in a great condition.
Several weeks later, after severe flooding, the carpets had to be lifted, leaving all of the floors exposed to concrete, nails and mould.
We moved out, to allow for repairs.
Several weeks passed with no work being done at all,
The managing agent said I will be refunded the rent for the period that we have had to find other accommodation, but he was unable to say when the new carpets and repairs would be done.
I then issued the owner and managing agent with a letter, giving them one week to repair the house to the condition that I signed a lease for, failing which they will be held in breach of contract and I will move out.
They failed to respond and I moved out and requested my deposit back and the refund of the rental.
The owner has since refused to pay me a cent, claiming that the house was in perfectly good condition to live in - even with the exposed nails and concrete.
Have I got a valid claim for the Small Claims court?
A: Yes, you can take the matter to the Small Claims Court.
In principle, a tenant has a claim for refund of a rental and deposit, in circumstances where the tenant cancelled the rental contract validly.
You will have to prove in court that the cancellation was valid, and validity will depend entirely on the terms and condition of the lease agreement.
If there is a condition stating that you will not be entitled to any refund, in any circumstances, you are unfortunately bound by such clause and not be entitled to the refund.
You will have to produce the lease agreement in court, and the terms and conditions will be crucial to the success or failure of your claim.
Validity of Claim - 2
Q: Tertius asked: My cellphone service provider gave me an erroneous bill for more than R6 000.
I immediately lodged a dispute and they promised to have it sorted out asap, but it was only resolved three months later.
During the dispute resolution period my cellular service was suspended numerous times, adding up to almost three weeks in total.
I work with the help of my cellphone and it costs me money when I cannot use it.
I want to enter a claim for R4 000 in damages against them, do I have a case?
A: You may have a claim in principle, but in court you will have to prove your loss of income with precision, which might present problems.
You also have a duty to “mitigate” your loss, which amounts to “damage control” or taking measures to minimise your damages as best you can.
Thus, in court, you will have to explain why you could not have used another cell phone, or a landline, for your business.
Validity of Claim - 3
Q: Carol wrote: I needed to replace the wooden windows of my apartment with aluminium ones, as the wooden ones were in a terrible state of decay.
The Body Corporate decided that all the wooden windows in the complex should be replaced with aluminium.
The BC contracted a company to install the aluminium windows, and provided a 50% discount to those of us willing to replace our wooden windows, whether by the contracted company or any other company.
I chose to have my windows done by a different contractor.
At the time, I also had air conditioning installed, as well as a temporary awning for shade – the latter two at my own expense.
The BC then withdrew my discount, alleging that my installation of the air conditioning and awning, even at my own expense, was a breach of the BC Code of Conduct.
My discount amounts to R7 000. Have I got a valid claim for it?
A: If the resolution applied to people using different contractors as well, you have valid claim.
Witnesses and documents
Q: I sent a letter of demand for (a) short repayment of rental deposit, (b) denial of use of carport which use was part of the rent, and (c) gross negligence in the matter of a burglary at my rented premises. Please advise how important witnesses would be in terms of the first two issues, as I have documents and photographs. Can I use sworn affidavits if witnesses are reluctant to appear or have difficulty doing so.
I also have photographs of the carport filled with building material - the owners have been renovating for the past year and have used the carport for this purpose against my protest. Is this good evidence?
A: The issues, as I understand your email, are (1) short-payment in refund of deposit, (2) denial of use of carport and (3) negligence concerning a burglary at the premises.
As for (1), you will need to produce your bank statement, reflecting the short-payment.
As for (2), a witnesses would be helpful to support your claim, and
As for (3), photographs should suffice for the burglary damage.
Affidavits may be used, but there might be problems if the Commissioner wants to question the people who signed them.
If the Commissioner insists on the presence of the person making the Affidavit, you can always ask for a postponement to ensure his/her attendance.
Wrong Defendant
Rob Malan had a claim against a company, but mistakenly issued summons against the company’s CEO as the 1st Defendant, and cited the company itself as the 2nd defendant.
Is it necessary for him to withdraw the entire claim, and to start afresh, with a new summons issued against the company alone?
Answer:
It is not necessary to withdraw the entire action and start afresh.
1. If the summons has not yet been served on the Defendants, Mr Malan can simply amend the summons himself by deleting the reference to the first defendant, and have the clerk of the Small Claims Court initial the amendment in terms of Rule 11.
The amended summons may then be served on the second defendant only.
2. If the summons has been served, on both defendants, Mr Malan must withdraw his claim against the CEO.
There are no specific provisions in the Small Claims Act and Rules setting out the process,
However, it would be appropriate for Mr Malan to send a written notice to both defendants, stating that he will not proceed against the first defendant at the hearing.