By: Donald Dinnie, Director, Norton Rose Fulbright.
As the defendant immediately you receive the summons with the court date, notify your witnesses and ask them to confirm their availability.
If you think a witness is key to your case and not available on the court date, contact your opponent immediately and see if you can agree a postponement with them to a date convenient to both parties and all their witnesses. If your opponent refuses to agree to that arrangement and you can establish to the court that the witness is material to your case, take along to court on the trial day, copies of your correspondence, in that regard, in whatever format, to show the commissioner that despite your best efforts, your opponent would not agree another date. This will assist you in securing a postponement.
Do not just fail to arrive at court. You must be in court at the appointed date and time for the trial otherwise you risk default judgment against you or dismissal of your claim.
If you cannot have a witness attend court, obtain an affidavit (that is a statement sworn to under oath to God or a secular affirmation) which you can present to the court. It would be useful if the affidavit tells the court why the witness is unable to attend at court and then deals with the particular issues on which they are able to give evidence.
The witness giving testimony (by way of affidavit or in person in court should give evidence only in respect of facts of which they have personal and direct knowledge). The formal rules of evidence do not apply. Commissioners can accept hearsay evidence, that is evidence that is reliant on the truth of someone who is not present at court to give evidence. The Commissioner will take into account that such evidence is not always particularly persuasive or necessarily reliable. So, it does not usually assist to have a witness who says person A told them that they saw X, Y and Z happened.
You may need expert witnesses to give evidence about the nature and quantum of damages. For example, a panel beater for a motor car or an electrician or a builder. They may not be willing to attend court without being paid for their attendance. You cannot recover those costs from the other parties. An alternative would be to obtain an affidavit from that witness.
Presenting your evidence in the small claims court
Proceedings in the small claims court are usually conducted in English and Afrikaans but you and your witnesses are entitled to give evidence in a language in which you are comfortable and certainly in any one of the official languages of the country. As soon as you know the court date and if you are giving evidence in a language other than English, contact the clerk of the court to ensure that on the day of the trial there will be an interpreter available for the language of your choice. You do not pay for the services of the interpreter as the States provides the interpreter.
If your language is not an official language or an official language not commonly spoken in the town where the court sits, for example, French, it is unlikely that there will be an appropriate interpreter at the Court without prior arrangement. To avoid a postponement, contact the clerk of the court and make an arrangement for the attendance of the relevant interpreter as far in advance of your court date as possible. The interpreter should not have any relationship with any of the parties or witnesses.
The Commissioner (who acts like a Judge) should be addressed as “commissioner”. They are not “Your Ladyship”, “Your Worship”, “Your Honour” or “Your Holiness”. “Commissioner” is the title whether the commissioner is male or female. But do not worry too much about how you address the commissioner. Commissioners are used to being called all sort of names but, of course, not rude ones! At all times be respectful to the commissioner, your opponent and to your and their witnesses.
There is no particular dress code for the court but do dress to show to the Commissioner that you take both the court and your case seriously. You need not, for example, as a male wear a jacket and tie. However, arriving to defend yourself in a t-shirt, shorts and slops may suggest that you do not take the process seriously. At the same time dress comfortably. You do not want to sit in court distracted by new and scratchy clothes or shoes that are giving you blisters. In winter months be warmly dressed as it can be quite chilly in the court room.
Your dress and conduct should at all times maintain the dignity of the court. Do not swear or use any inappropriate or offence language or gestures.
You may be a little nervous when you first stand up to address the court. Being properly prepared with the comfort of having practised your presentation together with having the relevant documentation and witnesses present in court will assist in making your butterflies a mild flutter, rather than a frantic pounding, of wings.
My thanks to my fellow commissioners, Elizabeth Cardona and Tony Chappel for their constructive comments.
Donald is a long standing commissioner of the small claims court in Johannesburg. He is also a director at Norton Rose Fulbright South Africa Inc.
For more information go to : http://www.justice.gov.za/scc/scc.htm