What I perceive as several disturbing gaps in the Small Claims Court (SCC) requirements and procedures weigh against the fair dispensation of justice for both plaintiffs and defendants.
I can’t speak on the merits or otherwise of the thousands of cases that are heard in SCCs across South Africa each year. However, I can comment on two specific recent cases involving claims that were brought against landlords by tenants who sought relief on the basis of not receiving their full deposits at the end of their rental periods. Both claims were heard in the SCC sitting in Randburg, Johannesburg.
Let me state upfront that I’m fully supportive of the principle of SCCs in South Africa as a way of providing the public with access to unbiased court proceedings at little cost and with minimal delay. I bow my head to those members of the legal fraternity who give up their valuable time with no monetary reward to hear cases in such courts.
The first issue is the propensity to bring claims to court that have no apparent chance of success. You could argue that laypeople are unable to assess whether or not a claim has any validity before the matter is tested in court. I hear that argument.
But here’s my point: Litigants should be made aware that baseless and false claims could attract penalties of some sort. Such penalties would be decided by the Court Commissioner at the end of the hearing.
My example of a baseless and false claim relates to a hearing in late 2015 brought to the SCC by a tenant against the owners of an apartment in a complex situated on The Straight in Lonehill, Johannesburg. The litigant had rented the apartment for six months, moving into spotless accommodation and paying a deposit equivalent to one month’s rent.
At the end of the rental period he moved out but left the apartment in an horrendous state: Walls were soiled, floor tiles had not been swept or cleaned in six months and the disgustingly dirty kitchen was overrun with cockroaches.
In terms of the lease agreement the tenant was supposed to have left the apartment in the same condition he received it in when he moved in.
The owners brought in fumigators and cleaners to restore the apartment to its former condition and paid for the work using a portion of the tenant’s initial deposit. The tenant received the balance.
The tenant took the owners to the SCC after having the summons served on the owners by the Sheriff of the Court. The service cost was a little more than R200.
The owners had a signed lease agreement with legally binding conditions, and had dated and timed “before” and “after” photographs of the apartment. Needless to say, the tenant lost the case.
But here’s the rub: The owners were forced to defend the action because the Commissioner would have ruled against them had they not appeared in court in person. The litigant had no chance of winning the action and I can only assume he thought the owners would not defend the action.
After wasting everyone’s time and causing heaps of unnecessary work and anxiety, the litigant moved on untroubled. Is that acceptable?
Shouldn’t the Department of Justice consider introducing a short “tick the boxes” written questionnaire that has to be filled out by a litigant and handed in to the Clerk of the Small Claims Court along with the summons?
Litigants need to be made aware that before the matter is heard in court they have to answer pertinent questions regarding their cases. If their answers recorded on the official questionnaire do not meet the necessary requirements the case will be rejected before it gets to court.
In my particular case, the tenant brought the case in the Randburg Small Claims Court because the rented property is in Lonehill.
I was forced to travel from Cape Town to defend the action, brought some eight months after the end of the rental period. The tenant knew I had settled in the Cape and may have thought the case would go uncontested as a result.
In the event my wife Wendy and I made the trip to Johannesburg specifically to defend the matter. The tenant was found to be in breach of various clauses in the rental agreement since I had written evidence to support my defence. He was unable to verify his claims either with written evidence or orally by calling witnesses.
The court ruled that I had to refund a further R600 in rental paid upfront for a 12-month period – a final figure, requiring intricate calculation by the Commissioner, as a result of the litigant not paying consumable costs over a period of months against the initial upfront deposit. I also had to pay about R50 in interest on the outstanding R600 and the cost of the summons. The litigant had claimed more than R10,000.
In my case, the interests of justice were served.
Here’s my second point. I had to travel to Johannesburg at my own expense to defend the action. Unlike Britain, South Africa does not rule on travel costs in SCCs. Does the issue of travel costs warrant a review in this country?
In my view, the fact that the plaintiff did not have to concern himself with my travel costs may have swayed him to pursue his case against me without comeback. And judging by his lack of preparedness in court, he did not bother to test his case in any way whatsoever.
SCC clerks do not have fax, email or Skype facilities. SCCs provide easy and cheap access to try cases. But when is cheap just not enough?
Words: Blake Wilkins