Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the KwaZulu-Natal Small Claims Court Workshop, held at the Garden Court Umhlanga, 1 October 2016
Members of the judiciary
Members of the various advisory boards,
Members of the legal profession
Ladies and gentlemen, friends
The most important aim of our Department is to ensure a transparent, responsive and accountable justice system.
We often talk of access to justice. Access to justice is a constitutional imperative.
It is a fundamental right that unlocks access to all the other rights enshrined in our Constitution. This right has the power to transform our society into a just and equitable one.
Access to justice is traditionally understood in terms of legal rights, processes and procedure, sometimes overshadowing the socio-economic elements, particularly that of poverty.
The link between justice and poverty is the inevitable impact on poor and marginalized communities, the majority of whom are women, who are deprived of choices, opportunities and access to basic resources.
We therefore continue to commit a substantial amount of our budget towards building additional courts and service delivery points to ensure that we reach out to rural and remote communities.
We are also correcting the old magisterial districts which are informed by racial and geo-political boundaries of the former self-governing states and the then RSA territory.
The two-legged programme seeks, on the one hand, to re-furbish the Branch Courts in the former Black areas and rural villages and confer upon them adequate jurisdiction and support services and resources to function as fully-fledged courts and, on the other hand, ensures the alignment of the magisterial districts with the municipal boundaries established under the new constitutional dispensation.
One of the ways we are trying to ensure that all people, especially the poorest of the poor, are in a position to approach our courts, is through the establishment of accessible courts in all corners of our country.
This includes, in particular, initiatives such as our Small Claims Courts.
Small Claims Courts are a powerful mechanism to provide access to justice, especially the poor. These Courts function on the basis of speed, simplicity and cost effectiveness, by providing a forum for the resolution of certain civil claims up to R15 000.00.
As you know, no legal representatives are allowed in these Courts. Small Claims Courts were created with the view to eliminate time-consuming adversarial procedures before and during the trial.
The service is rendered free of charge and all one needs to pay are the sheriffs’ fees. And if a person doesn’t know how to go about the process, the clerk of the court is there to assist.
We are pleased to be able to say that we now have 382 small claims courts across the country.
Our target is to have one per each of the respective magisterial districts in the country. This means that we have only 13 Small Claims Courts still to be established to be 100% compliant country-wide. This is remarkable progress.
We will now be focussing on more effective monitoring of the Small Claims Courts so as to improve their functioning as well as ensuring they are being adequately used.
There is actually nothing “small” about the Small Claims Court. To give you an idea of the impact of these courts, here in Kwazulu-Natal, in the month of August this year alone, some 524 new matters were registered. That’s in a single province in a single month. The value of the claims for the one month in this province, totals just over R3 million.
Countrywide, in August this year, 4019 new matters were registered in the Small Claims Court – with a total value of the claims for that one month being R21,6 million – that is in just one month alone.
As to cause of action, the highest percentage of new small claims court matters registered for a period of August 2016 is for money owed (46%) followed by damages to properties and services rendered (11%).
Of the small claims court matters closed in KZN in the month of August, there were 305 cases closed – claims totalling a monetary value of R1,85 million. Of the 305, some 77% of cases were finalised within the recommended 90 day period.
The highest percentage of postponement reasons were on Commissioners’ request with 61%, followed by postponement on Plaintiff’s request with 13%.
Somewhat concerning is that here in KZN there were 20 Small Claims Courts which were not capturing their data on the ICMS (Integrated Court Management System). This is something that we will take up with the Clerks of the Court, as it is important for the Department to have a proper sense of the case load in our Small Claims Courts.
Today’s training session really is to further empower our commissioners. The Commissioners are pivotal to a well-functioning Small Claims Court. Without commissioners and without advisory board members, there cannot be a Small Claims Court.
The Small Claims Courts usually sit after hours and commissioners assist on a voluntary basis, without any compensation. The sitting times of Small Claims Courts vary from area to area with the majority of the courts normally sitting in the evenings on week days.
In this regard, I want to add that I have, however, indicated that nothing prevents the local role players (such as the commissioners, magistrates, court managers and clerks) to take local circumstances into consideration and allocate court sessions during the day. If this is possible, this will make them more accessible in the rural towns where public transport after hours is scarce.
I am also pleased to announce that the new draft Small Claims Court Guidelines are available for public comment and consultation. There are two guides – one for Clerks and one for Commissioners - and the guidelines will be available on our website on Monday.
I have also asked the Regional Office to provide every one attending here today with electronic copies for your consideration and input, so you will be the very first to receive it.
We are confident that these guidelines will benefit Commissioners of the Small Claims Courts, court personnel and other professionals working with matters involving small claims.
The Commissioner's guide is in essence similar to the one for clerks but places more emphasis on the role of the Commissioner in the Small Claims Court and differs from the Clerk's guidelines in that it additionally deals with the Code of Conduct for Commissioners, the nature of the hearing and the evaluation of evidence.
The role of the Commissioner is central to our legal system and the rule of law. Intrinsic to this are the precepts that Commissioners, individually and collectively, must respect and honour their responsibilities as presiding officers and strive to enhance and maintain confidence in the legal system.
Commissioners, in executing their role as presiding officers, contribute to the enablement of vulnerable groups to access justice. Their role incorporates a social responsibility aspect in the sense that they are not compensated for their services. Commissioners offer their professional skills and valuable time for free in the interests of justice, democracy and the rule of law.
I want to urge all Commissioners and other role-players to examine the draft guidelines and provide us with your comments and suggestions in this regard.
We are pleased to advise that several aspects involving the Small Claims Courts now form part of the new Judicial Matters Amendment Bill which has been approved by Cabinet and will be tabled in Parliament. Some of the issues raised, which are now addressed in the Bill are as follows:
- The Small Claims Courts Act provides that the Minister of Justice may make rules regulating certain aspects of the small claims courts. In terms of section 25, rules regulating matters relating to small claims courts were published in 1985. These rules were amended in 1991.
The Small Claims Courts Act was enacted in 1984, before the enactment of the Rules Board for Courts of Law Act in 1985, which is probably why the Cabinet member responsible for the administration of justice was made the responsible functionary.
The new Bill now amends section 25 of the Small Claims Courts Act in order to provide that the Rules Board, may, subject to the approval of the Minister, make, amend or repeal rules in respect of small claims courts.
- The second issue pertains to sheriffs and the Small Claims Courts. According to the South African Board for Sheriffs, there are unclaimed funds in the trust accounts of sheriffs are estimated to be approximately R80 to R100 million. Although these funds belong to judgment debtors or creditors, they have not been claimed from the sheriffs concerned.
It has, however, been suggested that, as an interim arrangement, excess funds in the trust accounts of sheriffs should be placed under the control of the Board.
The new Bill thus seeks to amend the Sheriffs Act to provide that money in the Fidelity Fund for Sheriffs may also be utilised for the payment, in deserving cases, of the costs for the enforcement of judgments of small claims courts.
This amendment is intended to assist successful judgment creditors who are unable to afford such costs. While these litigants might ordinarily be successful in the small claims courts, their success is to no avail if they cannot enforce the judgments in their favour.
As you know, we are also working on a comprehensive review of the Small Claims Court Act – which is a 1984 Act and thus pre-dates the Constitution – and we hope to have a draft ready for consultation with stakeholders in the new year.
I want to wish you all a very fruitful training session. Thank you for offering your time and your skills to ensure that there is justice for all. Your dedication ensures the success of our Small Claims Courts.
I thank you.