07/03/2015
Questions & Answers
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.
Jurisdiction:
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.
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.
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, but the Plaintiff will have to persuade the Commissioner that the Defendant was deliberately “ ducking and diving”, and that this necessitated the tracing agent.
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
Q: Rob Malan asked: I have a claim against a company, but mistakenly issued summons against the CEO as First Defendant, and the company as the Second Defendant.
Is it necessary to start afresh, with a new summons against the company alone?
A: The website’s lawyers said: It is not necessary to withdraw the entire action and start afresh.
Mr Malan should, however, withdraw his claim against the CEO
Although there are no specific provisions in the Small Claims Act Act and Rules, setting out the process, Mr Malan should send a written notice to both defendants, stating that he will not proceed against the first defendant at the hearing.
However in the event that the summons has not yet been served, Mr Malan can simply amend the summons himself by deleting the reference to the first defendant, and have the clerk initial the amendment in terms of Rule 11. The amended summons could then be served on the second defendant only.
