Small Claims Court Cape Town Legal Process
Step 1: Contact the 3rd party / opposition / defendant
There may be an obvious awkward vibe. The feeling of inconvenience, or feeling like your damaged property will never be the same again is not a friendly topic.
Step One is to simply seek an early agreement. If you reading this there is a greater chance you seeking to get the opposing party into a small claims court because they are not willing to find a solution with you.
Step 2: Write a letter of demand
This is where the ball gets rolling. The letter basically says “I mean business”.
Ultimately when an opposing party (defendant) is guilty and has taken you to step 2. It usually means your Letter of Demand is just a time wasting legal ploy.
Tip: Download this form online
(you do not have to visit the court to get this form; you only need to deliver it back to the court after completion)
One must this procedure follow to get the Defendant to court. So make sure you deliver it (with a witness) ASAP to create a due date.
NB: Give the defendant 14 working days (21 regular days) to respond before reaching step 3.
Step 3: Go to the clerk of the court
Visit preferably 10am the morning. Give yourself several hours to ensure you get step 3 completed.
At this point you taking with all evidence and proof that you followed Step 1 and Step 2.
If the Defendant refused to sign or acknowledge the LOD (letter of Demand) then you will have to write a sworn Affidavits explaining the circumstances and get it approved by the police station.
Basically don’t leave room for the defendant to claim that she/he never received any documentation.
Step 4: A summons is sent to the opposing party
Step 4 and 5 go hand in hand. You now handing the defendant (guilty part) document that lets them know the small claims court date.
Step 5: Delivery of the summons
Have the defendant sign the summons in person (not recommended for general safety reasons).
Or send the Clerk of the court to hand deliver the summons.
This costs you around R250 which you not promised to get back.
By step 5 you should realize how much injustice this process can accumulate.
Step 6: The Small Claims Court hearing
Having got this far is frustrating and may fill you with doubt.
NB: as innocent as you are; pretend the judge is a complete witch, unprepared and very biased.
Not just a judge but potentially personally judgmental.
Remember the judge is most probably meeting everyone for the 1st time and may be trying to make out whom is the truth teller and whom just makes up stories. This is purely a human judgement, so as the innocent party, the judge may take a more condescending tone to you (at random).
Think this through. You have to speak slow, clearly and precise.
The judge deals with hundreds of cases a year; there is no promised time for digging deep into the evidence you bring along.
– Try not to go off topic; stick to the main facts of the reason you are in court.
– Elaborate in fine detail only when absolutely necessary.
– Think of every possible reason the judge may have to delay judgement prior to attending court!
– Try and have some sort of evidence at-hand to justify anything the judge or defendant can through at you
Step 7: After judgment has been given
Read the fine print. The judge may make a personal decision. A decision that could have been different had you had another judge or just even if you had your ducks in a row.
Do not assume that if you are obviously innocent that the judge will see it that way.
and for this reason: until a judgement has been handed in your deserved favor; do not show the defendant any mercy!
Imagine losing a court case because you became friendly with the defendant and the judge felt sorry because he/she has a small baby present in court (these are actual events I went through).
If you win a case and you are promised payment installments. Then make sure you are 100% aware of the stipulations.
– Ask questions upfront to the judge.
The fine print states that if the Defendant / loser of the case does not honor the judges decision; then the full amount / punishment will be applicable with immediate effect.
For more information around a more general legal walkthrough; visit Small Claims Court Western Cape Legal Process
Legal Tips for all drivers:
– Try and drive with a Dash Cam. Delete the unused footage after each day. It could pay off in the long run.
– Ensure your Insurance excess is not an astronomical amount.
– Carry your license, the police will fine you for not carrying it.
– Ensure your vehicle is roadworthy.
– Avoid dark, empty roads whereby having an accident of any sort would be too dangerous to stop.
Example: You are driving 2am the morning on Schaapkraal Road heading to Ottery.
This road winds for several kilometers and you could find yourself driving behind/infront of another car for 10-20 minutes. They could purposefully try and knock you to get you to stop.
I need not explain what may happen thereafter. Just use your common sense and survival skills.
Safety 1st, regardless of your situation. This is potentially where a dash-cam may legally help you if you had to escape the scene.
Tips after an accident:
– Ensure to take photo’s of the accident. Include various angles so that the damages and location of the incident is visible: this will help re-create the accident when it comes to investigation.
– Try and avoid being in a rush after an accident.
Avoid getting angry at all costs: It will destroy any chance of a quick solution.
Make time to go to state your case at the police station (of that area code), preferably with the defendant by your side.
– Remember swapping details is useless if the persons number doesn’t exist and you were to shy to snap a few photo’s.
– Look around for any witnesses. This may be difficult if the accident takes place under bad lighting or in an isolated area. Use what you can to your advantage!
– Do what you need to; ask questions later. As mentioned: takes pictures, exchange info, visit the police, contact your insurance. Record all possible reasons as to why the accident was/was not your mistake.
Do not wait; it will work against your favor.
Spend 5 hours making sure you do your part; and you may avoid a 3 – 24 month headache.
(in that time period you could be involved in another accident)
If you manage to get a witness things can get tricky. Do not bank on the witness to be involved.
Also do not bank on the witness, “witnessing” the accident in the same light as you may.
Sometimes the witness may lose interest if they feel they have nothing to gain by attending a court case.
The feedback I had received from the court is as follows:
The witness is not obliged to attend to to assist in any way. You may make a personal agreement (incentive based) for the witness to attend and testify. Alternatively you may get the witness to write and sign an Affidavits which you can submit on their behalf. The judge reserves the right to use an Affidavits as evidence.
When can I take an individual to a Small Claims court?
When there is a legal matter between two parties that cannot be settled in person.
Example – Motor insurance 3rd party claims
If the defendant knocks into your vehicle and they do not have insurance.
Then taking the matter to court and suing for vehicle damages or insurance excess costs may be your best bet.
– If you do go this route; make sure you bring with the approved quotation, email correspondents and any proof of your damages.
Do not simply expect the judge to see the situation in the same light as you.
Evidence must sometimes be tangible to get the judge to make a final judgement.
Can I sue a 3rd Party driver on behalf of my Vehicle Insurance?
Yes. Your current motor insurance provider manages thousands of customers. Their goal is to keep customers happy but also to gain damage control in bad situations.
Example: if Party A belongs to ABC Insurance and makes a claim that someone has crashed into him.
Party B has no insurance and refuses to pay for damages.
Party A‘s insurance will pursue the matter, they may threaten with court related documentation.
Legally though & oddly enough Insurance companies give themselves 24 – 36 months to pursue and then cut their loses.
In this time Party A (person paying for insurance) would have to pay for Excess and potentially have their premiums automatically raised. There is absolutely no promise that you can get back your Insurance Excess.
Especially if you insurance handles the legal procedure.
Its best you take over, annoy the defendant by following the legal procedure as swiftly as possible.
Show them you seek instant justice. They may just comply and pay up.
What is the maximum amount I can Sue for?
between R10,000 – R15,000 (the law around this changes every year).
What could possibly go wrong? Plaintiff vs Defendant
– Defendant Counter sue
(defendant may twist the story so it looks as if you (the plaintiff) is just-as guilty. Ensure you one step ahead)
– your case will be lost in the system, unless you follow up (ensure you follow the correct process as fast as possible. The court only helps you initiate a court case. If you slow or don’t show; your case will be dismissed eventually.
Is the entire Small Claims Court Legal Process fair?
Not at all. Various factors will influence your personal case.
Its you (the plaintiff) that needs to ensure that you whistle blow, remind and enforce the law where need-be.
Not all judges and police when make decisions for the pure sake of justice.
Sometimes they too want to just want to complete their day of work and end up going through your case in an automated fashion.
Alternatively the judge may take a liking to the persona of the defendant. Perhaps the defendant brings along a 5 week old baby and her innocent looking husband.
This may not sway the final judgment but can dramatically influence the packaging/medium in which the judgement is delivered.
– Defendant may get 24 months to pay installments.
– Defendant may get a grace period before making the first payment.
– Defendant may not incur interest on the judgment amount.
– Defendant may not be liable for any legal fees the plaintiff was forced to pay.
– Defendant may be excused for related acts which could of increased the plaintiffs deserved return in damages.
(factors such as time wasting, lying, manipulating, avoiding contact)
All due respect to every judge out there; we are human.
Judgement is not made over a PC program, its made by the human mind after consulting rules and regulations.
Sometimes bending the fragile rules is necessary.
Remember you may be reading this as the Defendant and may in-fact be the innocent party. Perhaps you plan to counter-sue to the plaintiff.
– Even if you do win; you may receive your payments in installments (without added interest).
The injustice is: you probably had to loan money to pay for your damages and you would have paid interest on that. Also its common knowledge to know that if you pay off debt over long periods; you supposed to pay interest for the luxury of an advance in money.
This article is purely advice on how to treat a vehicle collision or a legal matter. if you unlucky enough to be involved in one.
Do not take my advice as fact. I, myself may experience a completely different journey on my 2nd legal encounter. Speaking from a 6 month personal experience; though the process may be slightly different for you.