The Facts
A landlord recently contacted Paizes Attorneys and requested whether we could assist him in suing for lost rental from previous tenants.
His previous tenants had left under the cover of darkness and had owed him the last months rental. No notice was given by the tenant to the landlord and they just left. Initially, the landlord did not take a deposit from the tenants and now regretted the decision.
The amount due and owing to the landlord by the tenants was R6500. The parties to the lease agreement was the landlord and the tenant, who are both individuals.
The landlord required Paizes Attorneys to send a letter of demand to the tenants immediately and thereafter to sue the tenants if there was no monies forthcoming after sending the letter of demand.
Our advice
As the landlord and the tenant are both individuals and the amount is under R20,000, the landlord’s claim would fall under the jurisdiction of the Small Claims court. (As of 1 April 2019, the threshold for Small Claims court is R20,000)
The procedure in the Small Claims court is very simple and easy. The landlord would attend the Small Claims court himself, which is usually situated at the local Magistrates court in the area where the landlord resides.
Making contact with the tenant
The landlord requires to contact the tenant, either in writing or telephonically, to find out if the tenant will be paying the monies due and owing to him. A time limit must be given by the landlord to the tenant on when the outstanding amount is to be paid if the tenant agrees that he will be paying it. If the tenant clearly indicates that he will not be paying it, the landlord should move forward with the matter and approach the Small Claims court.
If the tenant does not pay back the money due and owing within the agreed time limit, then the landlord requires to send a letter of demand to the tenant. This is known as a Section 29 Letter of Demand and is available from the Small Claims Court. The tenant should be given 14 days to pay the landlord the monies that is due to him.
It is advisable during initial contact with the tenant, that the landlord determine where the tenant is now residing (often referred to as domicilium citandi et executandi), so that the landlord will be able to serve the necessary letter of demand and pleadings on him. To be aggressive in the initial contact with the tenant may also lead to the tenant not providing the landlord with any information.
The letter of demand must either be served on the tenant personally or it can be posted via registered post. Proof thereof must be retained.
Approaching the Small Claims Court
If the tenant does not respond to the letter of demand within the 14 days then the landlord requires to attend on the clerk of the Small Claims court who will assist in filling out the necessary form. This is known as a complaint form. Once completed and handed to the Clerk of the Small Claims Clerk, they will issue a summons (J141E) and the process will continue to the next step.
The summons will inform all parties when the next court date will be. The summons will then be required to be served by the landlord on the tenant personally and the tenant requires to sign that they received the summons from the landlord. There must be proof that the summons was served on the tenant. It is advisable that you request the Sheriff to serve the summons.
Usually the next court date will be the hearing date. The tenant may arrive on this date and verbally explain in person to the commissioner the reasons he is unable to pay, or the tenant may defend the matter and file a plea or counterclaim. Even if the tenant serves and files a plea or counterclaim, the landlord must still be present at the next court hearing.
On the hearing date, the commissioner will hear all concerned parties and any witnesses to determine the judgment. If the tenant does not arrive for the hearing, the commissioner will decide on whether you will be given judgement by default.
The commissioner is usually an attorney or advocate who voluntarily has given up his or her time to assist in the Small Claims court. They are well versed in the mediation process of the Small Claims court and their decision will be based on clear and concise facts.
See the flowchart summarizing the process here.
Important Notes
- This table shows the various thresholds and respective courts when claiming.
Threshold Court Jurisdiction < R20,000 Small Claims Court R20,000 - R200,000 Magistrates Court R200,000 - R400,000 Regional Court > R400,000 High Court - If the plaintiff is a company or close corporation then the matter requires to be launched in the Magistrates Court.
- No attorney or advocate may appear in the Small Claims court and it is a process which is done exclusively by the client themselves.
- It is important to note that a government department, like a municipality or the local government or authority, cannot be sued out of the Small Claims court. They are exclusively excluded from the jurisdiction of the Small Claims court.
- The above scenario does not take into account any property damages or other residual claims the Landlord may wish to pursue.
- Paizes Attorneys are Magistrate, Regional and High Court litigation attorneys. We are able to assist whether the matter is simple or extremely complex. We have extensive experience in commercial litigation.
Please contact us for further information regarding any of your litigation requirements.