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, South Beach, Durban, 23 February 2019
The Regional Head of the DoJCD, Mrs Moodley
Ladies and gentlemen, friends
Thank you for the kind invitation to this workshop.
As you know, the Small Claims Courts are an area of responsibility delegated to me by the Minister and I am extremely pleased with what we – the Department, the Advisory Bodies and especially the Commissioners - have achieved over the past few years to further roll-out and strengthen these courts.
The aim of Small Claims Courts is to improve access to justice and make civil justice inexpensive and accessible to those who cannot afford litigation in the ordinary civil courts.
We set out to with the aim of establishing a functioning Small Claims Court in each and every magisterial district in South Africa. We have done this, and in some areas there are even more than one Small Claims Court per magisterial district, as well as additional places of sitting.
This is indeed a major step forward in improving access to justice for all in our country.
We often talk about the functioning and the operational aspects of these courts. We look at the statistics of cases and which advisory bodies are active and which are inactive.
But we don’t always get to hear from the people inside the court, the court users, those who turn to Small Claims Court to have their matters resolved and we don’t always hear the stories behind the matters that end up in these courts.
Last month, in the Western Cape, this story about a Small Claims Court appeared in the local media. It’s about a young couple from Bonteheuwel, on the Cape Flats, who are taking their caterer to the Small Claims Court.
Mr and Mrs Galant told the newspaper that the finger snacks served at their wedding were so bad that they were too embarrassed to serve it. They paid the caterer for a wedding cake and platters, which were to contain “miniature rotis, KFC wings, meat, kebabs, sticky ribs, chicken and beef pastries.”
But, says the couple, upon arrival at the venue they further discovered that half of the food never arrived.
The bride said:
“I had to face 100 guests telling them there’s no food. I had no wedding cake. I have taken her to the small claims court and when we wanted to hand her the court papers, her boyfriend hid her in the room.”
What this shows us, is that the users of our Small Claims Courts are real people, with real legal problems.
It’s not just a platter full of snacks and a wedding cake, its months’ of savings that have been lost.
We might call it a Small Claims Court, but one can see how for a couple such as Mr and Mrs Galant, this is no small matter indeed.
Most importantly, the users of our Small Claims Courts are just as entitled to have their legal disputes resolved as those who have their matters heard in the High Court or in the SCA or the Constitutional Court.
This is what being equal before the law means in practice.
For many people, the Small Claims Court is their only option. It’s often the only way for them to get redress and recourse.
And it’s for them that we have to ensure that our Small Claims Courts work, and work well.
Many people find the court process extremely daunting – even more so when they have to appear without a legal representative.
Therefore it’s important to remember that the Small Claims Court is not just about hearing matters, but really listening to people, being compassionate and helping them to resolve their legal disputes in the best possible way.
We all know that the majority of our people had no access to justice in the past.
Today, even though we now have a progressive Constitution and a vibrant democracy, we must do whatever we can to ensure access to justice for all.
It is also important to that we take stock of what we have achieved and how far we have come.
As you know, Small Claims Courts were first introduced in 1985.
The first seven Small Claims Courts were proclaimed in September 1985 and they were in Bloemfontein, Durban, Pietermaritzburg, Pretoria, Port Elizabeth, Rustenburg and Springs.
In 1994, at the dawn of our democracy, the Small Claims Courts were still mostly in white and urban areas.
Since then, our Department has focused on establishing Small Claims Courts in areas that previously had no access to justice services.
Currently we have 414 Small Claims Courts and I’ve just signed the memorandum for Kestell in the Free State, which will then take it to 415 countrywide, as soon as the government notice is published by the government printer.
This current administration of government commenced in May 2014 and from May 2014 till now a total of 121 new Small Claims Courts were established.
We currently have just over 1950 Commissioners presiding in our Small Claims Courts countrywide, of which 236 are Legal Aid employees and 72 are Magistrates.
Here in KwaZulu-Natal, we have 55 magisterial districts, with 57 Small Claims Courts and 5 additional places of sitting.
KwaZulu-Natal currently has 332 advisory Board members and 351 Commissioners (including 10 magistrates who are serving as commissioners.) I am also pleased to advise that there are no inactive advisory boards in KZN.
Why are our Small Claims Courts so successful?
I believe that the most positive aspect of these courts is that it levels the playing the field. If there is one court where the parties are truly equal before the law, it is the small claims court.
It doesn’t matter if one party to a dispute is unable to afford a lawyer, because the parties represent themselves.
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.
And our Small Claims Courts must also keep up with the times and must develop so as best to serve the needs of society.
This brings one to the issue of monetary jurisdiction.
The monetary jurisdiction of the Small Claims Courts has been increased over the years. In 1985 it was R1 000 (the original designation); in 1995 it was R3 000; in 2004 it was R7 000.
Then in 2010 it was increased to R12 000 and in 2014 we increased it again to R15 000.
Taking the average of the increases over the years into account, this amounts to approximately R1 000 per year.
Should this average be used, the jurisdiction can now be increased to R20 000.
Since the last increase was implemented during 2014, general wages have increased and there were also changes to the cost of living index.
Any increase in the monetary jurisdiction of the Small Claims Courts will have benefits for the public, as this will enable more people to bring their civil cases to be heard.
An increased tendency for plaintiffs to abandon parts of their claims, in order to bring their claims within the jurisdiction of the Small Claims Courts, has been noticed.
We are of the view that an increase will further enhance poorer communities’ access to justice.
Various role players were consulted with regard to the possible increase of the monetary jurisdiction of the Small Claims Courts and there has been overwhelming support for such a proposed increase.
Many claimants have claims of up to R20 000, but cannot afford the services of legal representatives and many claimants do not want to abandon a part of their claim. It must also be borne in mind that Legal Aid SA has very limited resources to assist with civil litigation in magistrates’ courts.
The monetary jurisdiction was also discussed at a recent Small Claims Courts workshop. All the participants were of the view that it must be increased to at least R20 000 and the Law Society of South Africa’s specialist Small Claims Court Committee has considered an increase and also recommends an increase to R20 000.
I am therefore pleased to advise that the increased monetary jurisdiction of R20 000 will be effective as from 1 April this year.
We are confident that the proposed increase is in the interest of access to civil justice and will further assist our people to have their legal matters resolved.
Further good news is that the Guidelines for Commissioners and Guidelines for Clerks have been finalised and will also be effective as from 1 April, to coincide with the new jurisdictional amount.
Some of you may recall that a service provider was appointed in 2014 to carry out a review of the Guidelines.
A Steering Committee was established and a workshop was held in 2014 where the drafts were discussed. However, during 2015 the contract of the service provider was terminated.
Following the termination of the contract of the service provider, new drafts were compiled and circulated for comment in 2016. Interested parties were given two months’ to provide inputs – however inputs received after the deadline were also taken consideration.
The drafts were reworked according to the inputs and comments received and further legal opinions were requested on certain issues. The reworked drafts were, once again, made available for a final round of comments in September 2017.
Further comments were received on the reworked drafts and in March 2018 the Law Society of South Africa requested the DoJCD to reopen the period for comments and to allow for further submissions, which we did.
We had a very successful workshop of the draft Guidelines at the end of last year and I want to thank everyone – in particular our two facilitators, Adv Suhr and Mr Henro du Plessis - who have significantly contributed to this process.
The aim of the Guidelines is to try and assist with some of the issues that we know Commissioners and Clerks battle with on a daily basis, such as how the consumer protection legislation and National Credit Act impact on the work of the Small Claims Courts.
We are also seeing a marked increase in the number of SCC decisions that are being taken on review and therefore due diligence and providing proper reasons are important considerations.
It is also important to highlight that the Guidelines cannot go wider than, or beyond, the Act as the Act currently stands, nor can it amend the Act.
There are a number of issues that were identified when the DoJCD called for comments on the Guidelines, but are in essence matters that require legislative amendments and/or amendments to be undertaken by the Rules Board, or are matters that are operational in nature.
These issues have all been noted and are being attended to by the relevant role-players.
As you know, the Act is a pre-constitutional one and therefore a review of the Act is envisaged and is on the agenda for the new incoming administration.
Ladies and gentlemen,
Our Commissioners are the backbone of our Small Claims Courts. They enable these courts to ensure justice for people who would otherwise have had no legal recourse nor redress. Without our Commissioners and Advisory Board Members, there is no Small Claims Court.
I became a Deputy Minister mid-2013 and I’ve had the pleasure of worked closely with many of you here today.
Therefore, as we are coming to the end of this administration – there are just about 10 weeks left - I want to thank each and every one of you for your support and your dedication to our Small Claims Courts.
I want to assure you that your work makes a difference.
Small Claims Courts make a difference.
We have made significant progress in bringing us closer to the words of the late former President Nelson Mandela… “Let there be justice for all.”