Small Claims Courts Amendment Draft Bill

Call for comments opened 04 August 2014 Share this page:

Justice and Correctional Services

The Department of Justice and Constitutional Development invites you to submit written comments on the proposed draft Small Claims Courts Amendment Bill.

The Bill seeks to amend the Small Claims Courts Act, 1994, so as to:
▪ further regulate the jurisdiction of a small claims court.

Comments can be emailed to Mr JA de Lange at JDelange@justice@justice.gov.za by no later than Friday, 22 August 2014.

Enquiries can be directed to Mr JA de Lange on tel (021) 832 3111

Background Note
The following background information is hereby furnished in order to assist interested parties to comment on the proposed amendment of the Small Claims Courts Act, 1984 (Act No. 61 of 1984) (the Act).

Small claims courts were established by, and function in terms of, the principal Act. The main objective of the Act is to provide an inexpensive and accessible adjudication forum to individuals in respect of relatively small monetary claims that are not of a complex nature. The maximum amount of a claim in a small claims court is presently fixed at R15 000. Small claims courts are presided over by commissioners, appointed mostly from the ranks legal practitioners, who deliver this service free of charge. Legal representation is not allowed in a small claims court and a judgment of the court is final and cannot be appealed against.

In line with the concept of providing individual parties with an inexpensive and accessible forum for the adjudication of relatively minor disputes, the principal Act has from the outset provided (in section 2 14(2) ) that ―no action shall be instituted against the State in a (small claims) court. It is important to note that the principal Act does not prevent an aggrieved party from instituting an action against the State, it only prevents a party from bringing such action in a small claims court. The State, which comprises of all organs of state at the national, provincial and local government levels, clearly does not fit the description of ―individuals as contemplated above. The Institution of Legal Proceedings Against Certain Organs of State Act, 2002 (Act 40 of 2002), sets out the framework within which legal proceedings might be brought against the State.

Notwithstanding the exclusion of actions against the State in the small claims courts, there have lately been a number of attempts to institute actions against functionaries or employees of the State, in their personal capacity, in respect of their acts or omissions in the course of performing their official duties. (An example of such an action was where an official was involved in a motor vehicle accident whilst driving in the course of official duties.) Such attempts are not in line with the prohibition contained in section 14(2) of the principal Act.

The Bill firstly amends section 1 of the principal Act by inserting a definition of the expression "State". In terms of the definition, ―State would include-
(a) any national or provincial department;
(b) a municipality contemplated in section 151 of the Constitution;
(c) any functionary or institution exercising a power or performing a function in terms of the Constitution or a provincial constitution referred to in section 142 of the Constitution;
(d) any other institution listed in Schedule 1, 2, or 3 of the Public Finance Management Act, 1999 (Act No. 1 of 1999); and
(e) any municipal entity as defined in section 1 of the Local Government Municipal Systems Act, 2000 (Act No. 32 of 2000)

The Bill also amends section 14(2) by adding that an action may not be instituted in a small claims court against any functionary or employee of the State arising out of any act or omission by him or her in the exercise of his or her powers or the performance of his or her functions as such functionary or employee.