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During the 1970s the rise of the consumer justice movement and the accompanying demand for more accessible institutions of justice prompted the emergence of small claims forums in Australasia and other parts of the Commonwealth. In the case of New Zealand, the Small Claims Tribunals Act was passed in 1976, and Small Claims Tribunals were introduced on pilot basis the following year. These Tribunals were in time established throughout New Zealand and were upgraded and renamed Disputes Tribunals in terms of the Disputes Tribunals Act 1988.[1]
In South Africa, the Small Claims Courts Act 1984 was passed as a result of the findings of the Hoexter Commission of Inquiry into the structure and functioning of the courts in South Africa. This Commission reported in 1982 that South Africa was in desperate need of a court designed to settle small civil claims in an informal and inexpensive manner.[2] In South Africa, as had occurred in New Zealand, the Small Claims Courts were introduced in selected centres on a pilot basis but soon proved their success and were extended throughout the country.[3]
This article will analyse and compare key aspects of the South African Small Claims Court and the New Zealand Disputes Tribunal. The article is based on my research in South Africa (including observation of the Small Claims Court in Durban) and in New Zealand, and on my experiences as a Referee of the Disputes Tribunal. The purpose of the article is to reflect upon the strengths and weaknesses of each system and to assess what possible improvements may be made.
The presiding officer in the South African Small Claims Court is called a Commissioner, and as such is equivalent to the Referee of the New Zealand Disputes Tribunal.[4] As in New Zealand, the qualities and expertise of the presiding officer are central to the operation of the small claims system. This is because the presiding officer performs his or her duties without the assistance of legal counsel, with a considerable amount of discretion and flexibility of procedure, and with limited subjection to review. The presiding officer's standards and approach substantially affect the quality of justice afforded to small claims litigants and the overall tenor and credibility of the small claims system.[5]
A Commissioner is required to be qualified to be admitted to practise as an advocate or as an attorney or to be appointed as a magistrate. Furthermore, a Commissioner must, for an uninterrupted period of at least five years, have practised as an advocate or attorney or occupied the post of magistrate; alternatively, he or she must for five years have been involved in the tuition of law and also practised as an advocate or attorney for such period as, in the opinion of the Minister of Justice, makes him or her suitable for appointment, or possess such other experience suitable for appointment.[6] In appointing Commissioners, the Minister of Justice may act on the advice of the Advisory Board established for each Court area.[7] In the Durban area, the roster comprises some 60 Commissioners, who are mainly White and Indian attorneys.[8]
The decision of the South African legislature to restrict Commissioners to those with legal qualifications and experience follows the approach of most small claims systems.[9] The South African restriction is in line with the requirement of Commissioners to administer justice “in accordance with the laws and customs” of South Africa.[10] My observation of Small Claims Court hearings in Durban revealed the advantages of the Commissioners’ knowledge of relevant law, familiarity with court procedures, experience of a range of human affairs and disputes, investigative techniques and the balancing of conflicting evidence, and ability to provide quick and authoritative decisions. The reservation sometimes expressed that lawyers presiding in small claims forums might compromise the “user-friendly” image of the forum was not borne out by my observations, and the Commissioners observed generally conducted the proceedings in a down-to-earth, common sense fashion.
The requirement of the South African Small Claims Courts Act that Commissioners have legal qualifications and experience contrasts with the New Zealand Disputes Tribunals Act which simply requires a person to be “capable, by reason of that person's personal attributes, knowledge, and experience, of performing the functions of a Referee”.[11] The broad wording of this section was consciously adopted to dispel any indication of a presumption in favour of the appointment of lawyers as Referees. While lawyers are not prevented from becoming Referees, in fact only one quarter have formal legal qualifications.[12]
There are particular reasons in New Zealand (unrelated to the South African small claims system) which support the retention of broad criteria for the appointment of New Zealand Referees, notably, their need to assess whether it is appropriate to assist the parties to negotiate an agreed settlement, and to give decisions according to substantial merits and justice notwithstanding the strict letter of the law.[13] Nevertheless, New Zealand Referees are required to have regard to the law and statutes presented to them in deciding disputes.[14] As New Zealand prepares to increase the jurisdiction of the Disputes Tribunal to levels considerably beyond those of the South African Small Claims Court, the legislature would do well to reflect upon the advantages which can flow from legal qualifications and experience particularly in hearing and deciding upon claims at the higher level of jurisdiction.[15]
The office of the South African Commissioner is a voluntary, unpaid position. Commissioners are normally appointed by the Minister of Justice, and there are no statutory requirements for advertisement or an appointment process.[16] The Commissioner, once appointed, holds office during the pleasure of the Minister of Justice, who may at any time withdraw the appointment if “in his opinion there is sufficient reason for doing so”.[17] Little or no training is provided for new Commissioners, who are presumably required to draw on their legal training and expertise in conducting Small Claims Court work. Commissioners respond to the call for appointment for a variety of reasons. Some declare their commitment to serving the community, some see their work as Commissioner as a way of developing their skills and gaining valuable experience, and some hope that the experience may assist their aspirations to be appointed to higher judicial office.
In New Zealand, the office of Referee is a paid position. Referees are appointed following advertisement and an appointments process defined by the Disputes Tribunals Act, and they hold a judicial warrant from the Governor-General for a period of three years.[18] Like District Court Judges, Referees may “at any time be removed from office by the Governor-General for disability, bankruptcy, neglect of duty, or misconduct, proved to the satisfaction of the Governor-General”.[19] On appointment, Referees are expected to observe Tribunal hearings and work with an experienced Referee as supervisor. Thereafter training sessions are periodically provided for all Referees, and for all of their training time Referees are paid. It must however be pointed out that the level of remuneration set for Referees has been unchanged since 1989 and has become a source of dissatisfaction amongst Referees; and the level of Referee support and training in law and other areas has not matched the promises which were made at the time of the passing of the Disputes Tribunals Act.[20]
While the unpaid nature of the South African system provides a considerable financial saving for the South African Department of Justice, there are significant disadvantages of this system. The South African Small Claims system is dependent on the goodwill and altruism of a dedicated group of Commissioners, some of whom have considerable experience while others have less. Sitting times have to be scheduled after hours so that the Commissioners can fulfil their Small Claims Court duties without interference with their legal practice. There are circumscribed limits to what can be expected of unpaid Commissioners, in terms of extra time for training, out of court preparatory work, and the number of sittings per evening. Even without these extras, Small Claims hearings late in the evening after a busy day’s practice can be a heavy burden: it is well known that the size of a person’s claim may bear little relation to the complexity of the issues and the emotional energy vested in them.[21] My observation of the Small Claims Court revealed a high overall level of expertise, but clearly training in the Small Claims Courts Act and its practices would be beneficial in producing more streamlined and consistent procedures.[22]
It is submitted that the New Zealand system, which views the position of Referee as a paid (albeit part-time) occupation, better reflects the importance of the small claims part of the justice system. The incentive of payment draws a wider pool of appointees, more can be expected of Referees by way of training and availability, and there can be greater accountability for performance. At the same time, the level of remuneration, support and training of Referees needs to be reassessed and improved. It is important that the small claims systems in South Africa and New Zealand not fall into the trap of economising on the time of professional judges by exploiting the goodwill of those willing to serve in this area.[23]
Jurisdictional limits are an important feature of small claims institutions. They signal the judgment call made by legislatures as to the point where the accessible, informal and inexpensive small claims system must give way to the more formal court system. At this point it is deemed that the size and/or complexity of the claim requires the protections devised by the traditional court process. The jurisdictional limits of the small claims system are to be respected by both the litigants and the presiding officers. This is underlined by the South African Act which states that the consent of the parties does not give the Small Claims Court the power to hear any action which exceeds its jurisdiction.[24] Failure of the presiding officer to respect the system’s jurisdictional limits may have highly unfortunate consequences: in the South African and New Zealand systems excess of jurisdiction can be remedied only by the cumbersome and expensive process of review to the Supreme Court or High Court (respectively).[25]
South Africa follows the pattern of some small claims systems in allowing a fairly wide-ranging jurisdiction subject to a low monetary limit.[26] The upper financial limit has recently been increased to only R3000, which (taking into account the comparatively high inflation and low exchange rates in South Africa) is one of the lowest limits placed in Commonwealth countries.[27] This limit is not specified by the Act, and is left to the Minister of Justice to determine from time to time by notice in the Government Gazette.[28] The Small Claims Court has jurisdiction over causes of action within this limit, in claim or counterclaim, including a number specifically mentioned in the Act. Those specifically noted are actions for the delivery or transfer of movable or immovable property, for ejectment of occupiers of premises or land, and based on or arising out of liquid documents, mortgage bonds and credit agreements.[29] Certain matters are specifically excluded from the jurisdiction of the Court: these include the dissolution of marriage, the validity or interpretation of wills, the mental capacity of persons, defamation, malicious prosecution, wrongful imprisonment or arrest, seduction, and breach of promise to marry.[30] The Small Claims Courts Act is subject to other legislation, which means for example that employment matters are required to be determined by the Labour Court.[31]
My observation of the Durban Small Claims Court indicated that a high proportion of the claims heard relate to contractual issues, including claims for refunds for allegedly inadequate services rendered or goods bought, for loans, and for tenancy bonds and rental. Tort claims also featured, including those relating to damage to motor vehicles and personal injury.[32]
The New Zealand approach to jurisdiction has been to impose a modest upper financial limit and to confine the allowable causes of action to clearly-defined areas. This approach is entirely appropriate in the light of the provisions that Referees are not required to be legally trained, that in principle lawyers are not allowed to represent parties, and that there is only limited right of appeal. The Tribunal is allowed to hear claims up to $3000 and by consent of all parties $5000: these levels are significantly beyond the South African limit but still at the lower level of Commonwealth limits.[33] The financial limits are specified in the Disputes Tribunals Act, which means that any change requires legislative amendment approved by Parliament. The Act stipulates the classes of action that can be heard (contract, quasi-contract, tort relating to damage to property, and statutory causes of action), and specifically excludes a range of actions including claims for the recovery of land or interest in land.[34] The Disputes Tribunals Act is subject to an array of other statutes which restrict the jurisdiction of the Tribunal.
As in South Africa, most claims in New Zealand in fact relate to contractual issues such as services rendered and goods bought, and tort matters arising out of damage to motor vehicles.[35] However, the range of issues routinely dealt with in the Disputes Tribunal is much narrower than that dealt with in the Small Claims Court. A significant proportion of matters which are heard in the South African Small Claims Court are dealt with by New Zealand courts or by other specialist bodies in New Zealand (such as the Tenancy Tribunal and the Accident Compensation Corporation).
Comparison of the small claims jurisdiction in South Africa and New Zealand reveals the tension between providing an accessible system of justice for lower-level claims while not exposing the system to overload or undue strain. The common theme of both systems is that the small claims system is geared towards claims of a small amount, based on causes of action which involve essentially factual disputes that are not legally complex.[36] The South African Act underlines this point by providing that where the Court “is of the opinion that a case contains difficult or complex questions of law or of fact which cannot adequately or fairly or should not be decided by it, it shall stop proceedings and the plaintiff may institute a fresh action in another court”.[37] To like effect is the provision in the New Zealand Act which allows a Tribunal to transfer a matter to the District Court where it considers that the matter may more properly be determined there.[38]
It is submitted that the South African system, which is in the hands of legally-qualified Commissioners, could well handle a much higher financial level of claims, subject to extended hearing times. The caution of the South African authorities in setting upper financial limits provides a salutary lesson for the New Zealand authorities, as the New Zealand Tribunal is largely in the hands of Referees without legal qualifications or experience. At most, New Zealand might adopt the provision in the South African Small Claims legislation which allows for the Minister of Justice to adjust the upper financial limit from time to time to allow for inflation. Beyond this, the New Zealand authorities should not increase the Tribunal’s jurisdiction without a careful review of the Disputes Tribunals Act as a whole.
Both South Africa and New Zealand addressed the issue of making the small claims system as accessible as possible while at the same time not exposing the system to domination by debt-collectors. South Africa’s response was to open the system to all claims in contract, whether disputed or not, subject to the restriction that a claimant who carries on a business or profession is allowed to institute only one action at a time, and may commence a second action only when the first action has been completed.[39] New Zealand’s response was to require that claims in contract or quasi-contract for debts or liquidated sums normally be in dispute.[40]
Enquiries revealed that the South African system is not overloaded with debt-collecting claims. The South African system has the advantage that one-off debts owed to small businesses can be claimed without imposing the (at times artificial) requirement that they be disputed. There is evidence that the New Zealand system is open to the vagaries of local practice. Some Registrars and Referees effectively waive the requirement for a dispute in apparently deserving cases, while others impose the letter of the law with the result that in some cases debts are not pursued because of the prohibitive costs of the District Court.[41] In the light of these considerations it is submitted that the South African response to this difficult issue is to be preferred.
Tensions similar to those affecting jurisdiction are apparent in the law governing those who may appear in the small claims forum. On the one hand there is the view that the small claims system should provide a private forum, reserved for the lay parties who, unlike corporate bodies, lack the resources to pursue claims in the higher courts. On the other hand there is the view that the small claims forum should be a public body, open to all without restriction or distinction of status.
The South African Small Claims Courts Act provides that only a natural person may institute an action in the Court.[42] A natural person is an individual human being (including an individual who constitutes a partnership), and is distinct from a juristic person who is a legal entity such as a company, a corporation or statutory body.[43] However, a juristic person may become a party to an action in the Court as a defendant, except that no action may be instituted against the State.[44]
My observation of the Durban Small Claims Court bears out the statements made by the Court Clerk and Commissioners interviewed that the Court is now being used by a wide cross-section of the community, with a mix of gender and races. Most of the plaintiffs and certain of the respondents were Blacks, necessitating the services at times of a Zulu interpreter. Whites and Indians also featured as plaintiffs and defendants. The mode of speech and dress of the parties indicated that they came from a variety of educational and income groups. Most disputes were between individuals, but there were defendants representing corporate groups such as a furniture store and the local city council.
The New Zealand Act allows access by parties irrespective of whether they are private persons or corporations,[45] and proceedings may be brought by or against the Crown in the same manner as other proceedings.[46] Access by corporate bodies is subject to the elaborate provisions governing insurance companies, which are designed to ensure that both insured and insurer are entitled to attend and be heard subject to provisions that their respective interests be respected.[47]
Like the South African Small Claims Court, the Disputes Tribunal draws people from a variety of quarters, and the proceedings are not dominated by big business or Crown agencies.[48] However, there is evidence that the Tribunal (like other small claims systems) attracts a disproportionate share of males, Europeans and those of the better-educated, middle-income bracket.[49] The findings of a 1986 Review of the Tribunals found that “women, the young and the elderly, those in low socio-economic groups, and MŠori and Pacific Islanders are under-represented amongst those who are aware of small claims tribunals”.[50] This is of particular concern because such groups include those most vulnerable in terms of consumer issues, and those least likely to be able to afford legal services or have the skill to negotiate on their own behalf. There is also evidence that in disputes involving the supply of goods or services by a trader to a consumer, commonly the trader appears as the applicant and the consumer as the respondent.[51]
It is submitted that the New Zealand approach which allows access to applicants that are corporations better reflects the underlying philosophy of the small claims system as the provider of access to justice for all. However, there is an ongoing challenge in both South Africa and New Zealand to attract those most in need of the inexpensive justice that the system offers, through advertising and making the system as accessible as possible. Particularly in New Zealand, groups under-represented in the small claims system need to be targeted with educational programmes which increase awareness of the system.
In South Africa, each party to a Small Claims Court action must appear in person before the Court, and may not be represented by any person during the proceedings. The exception is juristic defendants who may be represented by a director or other officer.[52] There is no statutory provision for supporters to be present to assist the parties.
In New Zealand, no person is entitled to be represented at a hearing unless it appears to the Referee to be proper in all the circumstances to allow this and the Referee approves the representative.[53] Express provision is made for representation of minors, corporate bodies and persons under disability.[54] The Referee may not appoint or approve as a representative any person who is or has been enrolled as a barrister and solicitor, or who, in the opinion of the Tribunal, is or has been regularly engaged in advocacy work before other tribunals.[55] The Disputes Tribunals Act also allows any person nominated by a party to the proceedings to be present at the hearing and to assist the party in the presentation of the case if it appears to the Referee to be proper in all the circumstances to permit this. Such a support person is not entitled to be heard.[56]
It is submitted that both the South African and New Zealand legislatures have made a correct assessment that personal appearance by the parties is the preferred option in the small claims system. Representation, particularly legal representation, increases costs and can import formality, technicality and delay into the proceedings. However, should there be a significant extension of jurisdiction (as is proposed for the New Zealand system), provision might be made (as in Australia) to allow legal representatives where all parties agree and/or the presiding officer is satisfied that the unrepresented party will not be unfairly disadvantaged by the opposing lawyer’s presence.[57]
It is also submitted that the New Zealand provision for supporters is a valuable aspect of the New Zealand system, and one which could play a useful role in South Africa. Supporters, be they family members or friends, can be of assistance in situations of power imbalance, where a party lacks skills or confidence and requires assistance with presenting evidence and emotional support. Furthermore, certain cultural groups traditionally emphasise interdependence and link identity with the wider family and tribal unit, and the provision for supporters may help to make the small claims forum a less individualistic and more accommodating one.[58]
In South Africa, the proceedings of the Small Claims Court must, in principle, take place in open court.[59] The documents of the Court are available for inspection by the public under the supervision of the Clerk of the Court upon payment of the prescribed fees.[60] These provisions are in line with the notion that the administration of justice should be open to public scrutiny.[61] In line with this principle, the practice that I observed was that all the parties, due to appear in cases set down before a particular Commissioner on a particular evening, sit in the Court and observe proceedings until their case is called. The South African rule is subject to the right of the Court, in the interest of the administration of justice or of good order or of public morals or at the request of the parties to the proceedings for reasons considered sufficient by the Court, to order that the proceedings be held behind closed doors or that specified persons not be present at the proceedings.[62]
In New Zealand the principle is that “all proceedings before a Tribunal shall be held in private”.[63] Privacy is seen to make for a more accessible Tribunal, encourages free, open and frank exchange, allows the parties to take part in negotiation more readily, and gives the parties a safe environment in which to sort the matter out without loss of face.[64] It is also pointed out that the Tribunal does not set precedents.[65] In line with this principle, the practice observed in the Tribunal is to have each dispute assigned a separate time (usually at one hour intervals), and only parties and relevant people attend each hearing. However, a Referee may allow the presence of persons who have a “genuine and proper interest either in those proceedings or in the proceedings of Tribunals generally”.[66] This provision was inserted because of the belief that the Tribunals would elicit some interest in a general way from interested persons and organisations, and to allow parties to have a relative or friend present.[67] The provision also allows for the presence of trainee Referees who wish to observe and learn from experienced Referees, and those who are doing research on the Tribunals.[68] Such persons are not allowed to participate in the proceedings in any way, and their continued presence is in the discretion of the presiding Referee.[69]
It is submitted that the New Zealand approach, with its built-in safeguards, is to be preferred. The reality is that small claims hearings, being concerned with private disputes usually without public relevance, are almost invariably of interest only to the presiding officer, the parties and those directly involved in the particular dispute, and it is not common for members of the public to wish to attend. The attendance of parties at hearings unconnected with their own can be a waste of time, can provide distractions, and detracts from the informal, safe and open forum conducive to discussion and resolution of disputed matters.
The central objective of the small claims system is to allow access to speedy and low-cost justice. This requires observance of the principles of natural justice, so that justice may be done and seen to be done. At the same time, because the system directly involves lay people unskilled in legal procedures, it is essential that the proceedings of the small claims system be as flexible and accommodating as possible.
In South Africa, proceedings are usually instituted in the Court of the area where the defendant resides, carries on business or is employed, or where the cause of action arose.[70] On hand to assist the parties is a clerk of the Small Claims Court, who in many cases compiles or prepares the necessary documentation under instruction from the parties. The clerk may, when faced with issues of legal complexity, call upon the services of a legal assistant assigned to the local Court.[71] The plaintiff is required to have written a letter of demand to the defendant allowing the latter at least 14 days from the date of receipt to satisfy the plaintiff’s claim, and to have delivered this to the defendant by hand or by registered post. On failure by the defendant to satisfy the claim, the plaintiff must lodge the letter of demand and complete a standard summons prescribed by the Court.[72] If the clerk is satisfied that the summons complies with the requirements, a date and time is set for the hearing. This is set for 5.00 pm on Mondays to Thursdays, at Department of Justice premises designated for the Small Claims Court.[73] The summons is then handed to the plaintiff who must personally serve it on the defendant or deliver it to the sheriff of the court for service subject to the payment of the required fee.[74] The defendant may at any time before the hearing lodge with the clerk of the Court a written statement setting out the nature of the defence and particulars of the grounds on which it is based.[75]
In New Zealand, proceedings are commenced by lodging a claim in the prescribed form with the appropriate Tribunal. This is normally the Tribunal nearest to the place where the applicant resides, although the Referee may transfer the claim to another Tribunal if satisfied that the claim can more conveniently or fairly be heard there.[76] The Registrar of the local Tribunal has the duty to ensure that assistance is reasonably available from the court staff to any person who seeks it in completing the forms required by the Act. This assistance applies, not only to the lodging of claims, but also to applications for rehearings, appeals and enforcement of Tribunal orders.[77] The applicant is required to lodge, with the claim, the prescribed fee.[78] Since 1989, the fee has been $10 for claims below $1000 and $20 for claims above this amount.[79] Once a claim is received in the Tribunal, the Registrar (through the court staff) fixes a time and place of hearing and gives notice of these details to the parties to the proceedings.[80] Tribunal hearings are conducted in Department for Courts premises, usually at the local District Court in specially designated hearing rooms or in Judges’ retiring rooms. Hearings are normally held during standard office hours in the week, although night sittings have been held on a pilot basis in certain centres. Notice of hearing (as with any notice or order relating to the Tribunal) may be given either by personal delivery or by postal delivery, subject to the right of the Referee or the Registrar to direct that notice be served by other means.[81] Service is effected by a bailiff, who is a District Court official responsible for serving all summonses and orders and for executing all warrants issued out of the Court.[82]
Comparison of the two systems reveals attractive features of both. The South African requirement for a written demand or reminder provides a last opportunity for an out of court settlement (with the added incentive of being under the shadow of the small claims system) and may prevent certain claims reaching the Court. The New Zealand preference for the applicant’s forum is a departure from the procedure in the District Court, but it reflects the philosophy of the Tribunal as being to enhance access to justice for those with modest claims.[83] Both systems provide state assistance to the lay litigants, but South Africa takes this a step further by providing access to a legal adviser. The cost of commencing proceedings in both systems is low: it is potentially free for South African plaintiffs who serve the summons themselves, but the New Zealand system offers a more uniform and streamlined service with a low filing fee. Both systems attach the small claims system to the formal justice process, which adds credibility to the system and emphasises that the small claims system is meant to provide an impartial forum beyond the influence of either consumer bodies or seller associations.[84] The South African hearings in the evenings and the New Zealand hearings in the day obviously benefit different needs of the public. Finally, the South African provision for defendants to provide an outline of their defence can be of great help to the presiding officer in discovering the issues in dispute and so enhancing the dispatch of claims.
In South Africa, control of the proceedings lies in the hands of the Commissioner, who has a large measure of discretion in the conduct of the hearing. The Commissioner may at any time before judgment amend any summons or other document unless any other party may be prejudiced thereby.[85] The Commissioner may ascertain any relevant fact in such manner as he or she thinks fit, the rules of the law of evidence do not govern the Court’s proceedings, and evidence may be given orally or in writing. The Commissioner proceeds inquisitorially to ascertain the relevant facts, and parties are not allowed to question or cross-examine any other party or witness unless the Commissioner so permits.[86] The Commissioner has the power to decide that sufficient evidence has been adduced on which a decision can be arrived at, and to order that no further evidence shall be adduced.[87] Formality is given to the proceedings by the requirement that all evidence has to be given under oath.[88] Any one of the twelve official languages may be used in the proceedings, and where necessary a competent interpreter may be called in by the Court.[89] Where a person wilfully insults, interrupts or otherwise misbehaves at a hearing, that person may be sentenced summarily by the Commissioner or upon summons to a fine or imprisonment.[90]
My overriding impression of the Small Claims Court in Durban was that of a common sense Court in which the Commissioner was the dominant figure.[91] The plaintiffs, defendants and their witnesses were seated on the Court benches at 5.00 pm, and rose on the entry of the Commissioner who was announced by an usher and then took his seat at a raised dais. The most experienced of the Commissioners commenced proceedings by reading through the names of the parties to each of the seven cases set down before him. Those cases where neither party appeared were struck off the roll, then the Commissioner dealt with the cases where the defendant did not appear, and finally the Commissioner proceeded to the cases where both the plaintiff and defendant appeared.[92] All the Commissioners observed were active in summarising the evidence of the parties, crystallising the essence of the disputes, interrogating parties and their witnesses, explaining procedures, and occasionally warning parties about inappropriate behaviour.[93] Most cases ended with the oral decision of the Commissioner, but some adjournments were allowed for further evidence, and in one case the Commissioner reserved his decision for a week to address the evidence and the law.
In New Zealand, subject to the Disputes Tribunals Act and to the Rules made under the Act, a Referee may adopt such procedure as he or she “thinks best suited to the ends of justice”, and “no proceedings of a Tribunal, or order or other document of a Tribunal shall be set aside or quashed for want of form”.[94] The Referee may “receive and take into account any relevant evidence or information, whether or not that evidence or information would normally be admissible in a Court of law”.[95] The Referee may, on his or her own initiative, seek and receive such other evidence and make such other investigations as he or she thinks fit.[96] Thus, unlike traditional courts of law, the Tribunal has an investigatory or inquisitorial role.[97] The Act requires that all evidence and information received or ascertained on the Referee’s initiative must be disclosed to every party, and every party must be given an opportunity to comment on it.[98] Evidence given does not have to be (and is not normally) on oath, although the Referee may at any stage of the proceedings require that evidence or any part of it be given on oath.[99] As MŠori is an official language,[100] the right to an interpreter of MŠori is automatic; and in the case of other languages the discretion rests with the Referee, who should appoint an interpreter whenever this is conducive to the achieving of natural justice. Where persons act in contempt of the Tribunal, the Referee may order the exclusion of such a party and may as a last resort report to the local Registrar with a view to contempt proceedings being instituted.[101]
The actual operation of the Tribunals in New Zealand depends very much on the attitudes and aptitudes of the Referee, who actively works with the parties to resolve the dispute in question without the aid of lawyers. Because Referees in New Zealand come from a wide variety of backgrounds, there is a range of styles ranging from the mediatory to the judicial. Generally, however, by comparison with the Small Claims Court, the Disputes Tribunal operates in a less formal or legal manner. The Referee usually sits at the same level as the parties (who are called applicant and respondent), parties are usually not sworn, and almost invariably court officials are not present. Because each hearing is reserved only for the particular parties, there is (in comparison with the South African system) a more intimate atmosphere, conducive to a more relaxed and frank interchange.
The balance between formality and informality in a small claims justice system is a delicate one. The traditional justice system offers protections that need to be balanced along with the need for accessibility to lay participants. The decision of the South African system, in line with certain jurisdictions overseas, is essentially for an extension downwards of the court system, subject to modifications.[102] The option chosen by the New Zealand legislature is to create a body different from the traditional court, although the New Zealand option is not as radical as that chosen by some jurisdictions.[103] Subject to the quality and training of the Referees, it is submitted that the New Zealand system offers the potential to marry the competing demands of the small claims system in the most effective way.
The broad objective of small claims systems is to settle small civil claims in an effective manner. Within this objective, legislatures in various jurisdictions have seen the potential for a range of dispute techniques and outcomes. The functions and orders of the presiding officer in a particular small claims system provide key indicators of the overall philosophy of the system in question.
The function of the Commissioner, as the presiding officer of a Court, is essentially an adjudicative or judicial one. The Commissioner is required to “administer justice ..., as the circumstances of a particular case may require, in accordance with the law and customs of the Republic of South Africa”.[104] After the hearing, he or she is empowered to grant judgment for the plaintiff or for the defendant, in respect of the claim or of the defence or counterclaim (respectively), “in so far as [that party] has proved it”.[105] If the Commissioner is of the opinion that the evidence does not enable him or her to give judgment for either party, he or she may grant “absolution from the instance”.[106] The Commissioner may also grant such judgment as to costs “as may be just”.[107]
My observation of the Small Claims Court clearly indicated that the hearings were conducted with a view to the matter being concluded by a decision of the Commissioner. The Commissioners gathered the evidence, and, where the evidence was not available, afforded the parties reasonable opportunity to obtain this. Certain Commissioners admirably foreshadowed the factors which weighed with them and gave the parties opportunity to comment on these factors prior to the final decision. At the same time, the Commissioners worked with the parties to achieve a fully-informed and shared understanding of the dispute and its outcome. The Commissioners were heard to summarise the stories and capture the feelings of the parties, clarify the issues, and reality test the claims made and positions adopted by the parties.[108]
The New Zealand Referee has, in comparison with the South African Commissioner, a more complex set of functions to fulfil. The Referee is required to assess “whether, in all the circumstances, it is appropriate to assist the parties to negotiate an agreed settlement”.[109] However, where it appears to the Referee that it is not appropriate to assist the parties to negotiate an agreed settlement, or the parties are unable to reach an agreed settlement approved by the Referee, or the Referee does not approve an agreed settlement reached by the parties, the Referee makes a decision. The Referee determines the dispute according to the substantial merits and justice of the case, and in doing so must have regard to the law but is not bound to give effect to strict legal rights or obligations or to legal forms or technicalities.[110]
The precise extent to which the mediatory and adjudicative functions of the Referee are called into play in any dispute depends on the training and background of the Referee, the attitude of the parties to reaching an agreement, and the nature and merits of the dispute.[111] Generally, Referees give the parties time to tell their stories in their own way, summarise the parties’ presentations, draw out the issues, and where appropriate explore options for settlement. A minority of disputes end with an agreed settlement, and the remainder are decided in accordance with the evidence presented, the merits and justice as they emerge, and (to a greater or lesser degree) the relevant law.[112]
It has been observed that “in practice, the line blurs between adjudication and mediation”.[113] This is particularly so where the person charged with assisting the parties to negotiate has the power to decide the matter. Nevertheless, it is submitted that it is useful for the New Zealand Act to signal that negotiation of agreed settlements is a desirable option in the small claims system. Should a similar provision be inserted in the South African Act, it would support and extend the kind of productive work that is already being done in the Small Claims Court.[114] The success of the mediation process lies not simply in the number of agreements produced, but in levels of understanding reached, greater acceptance of the outcomes, and the empowering and educative effect on the parties. The hope is that the lessons gained by the lay litigants from their experiences in the small claims system will be of benefit to them and society as a whole.
The usual order made by a Commissioner is the payment of money, and this is paid by the judgment debtor direct to the judgment creditor.[115] The Commissioner may also order the rendering of an account or the delivery or transfer of any movable or immovable property, but apart from these two cases has no jurisdiction over claims for specific performance without an alternative claim for payment of damages.[116] The Commissioner may not issue a decree of perpetual silence or issue an interdict (that is, require or restrain the doing of an act or course of conduct).[117] It is usual for the Commissioner to award costs in favour of the successful party, but these may only include court fees, fees for the issue of the summons, and fees and travelling expenses of the sheriff of the Court.[118]
In the New Zealand Tribunal, the most common order is for the payment of money by one party to another.[119] The Referee may order one party to deliver specific property to another; order that a party is not liable for a claim founded on contract or quasi-contract; order that an agreement between the parties be varied or set aside where it is found to be harsh, unconscionable, or induced by fraud, misrepresentation or mistake; and/or vary or set aside any writing purporting to express the agreement between the parties which does not accord with their true agreement.[120] The Referee may also direct the performance of a work order, which is an order to make good a defect in any property, or a deficiency in the performance of services, by doing such work or attending to such matters as may be specified in the order.[121] The reality that such work might not be performed prompts the provision in the Act that work orders must always be coupled with an alternative order to pay a sum of money.[122] Outside of the work order, the Act does not empower the Referee to issue an injunction (the equivalent of an interdict). However, the Act’s provisions as to the types of orders made by the Tribunal do not restrict the making by the Tribunal of any order that it is authorised to make by any other enactment.[123] As in many overseas jurisdictions, the general principle is that costs are not awarded against parties to proceedings before a Tribunal, and indeed costs are usually not a feature of Tribunal orders.[124]
The limitations on the types of orders in the small claims systems of both jurisdictions indicate that the system is essentially designed for one-off factual situations, and that disputes of a more legally complex or ongoing nature (such as status or family matters) better belong in the court system. In the normal course of events, both systems appear to work well, although the slightly greater flexibility of the New Zealand system, including orders for non-liability, is an advantage. The restriction on costs in the New Zealand system is in line with the view that the Tribunal is meant to be as accessible as possible to lay people, to the extent that they should be able to approach the Tribunal without incurring major legal and other expenses.[125] However it is difficult to see the flaw in the South African approach, that costs directly related to the proceedings are normally awarded to a party in whose favour the merits of the case are proved to lie.
In South Africa, where the Commissioner grants judgment for the payment of a sum of money, he or she must enquire from the judgment debtor whether the judgment can be complied with without delay. If the judgment debtor indicates that this cannot be done, the Commissioner may in chambers conduct an inquiry into the financial position of that person and the ability to pay the judgment debt and costs. After such an inquiry the Commissioner may order the judgment debtor to pay the judgment debt and costs in specified instalments, or suspend the order either wholly or in part on such conditions as to security or otherwise.[126] Orders for payment of money must be paid within 10 days, unless otherwise ordered.[127] Such orders must be paid by the judgment debtor direct to the judgment creditor.[128] Failing payment the judgment creditor may proceed as if the judgment was granted in the Magistrate’s Court.[129]
In New Zealand, any order made by the Referee may be unconditional, or may be subject to such conditions (for example, as to the time for or mode of compliance) as the Referee thinks fit to impose.[130] The general practice is that orders should be complied with within 28 days of the order, as this is the period within which parties may apply for a rehearing or may appeal.[131] However, where, as commonly happens, parties who are liable are unable to satisfy an order within 28 days, and the successful party is prepared to agree to a longer period or to instalment payments, the Referee may incorporate such conditions in the order.[132] There is no provision regarding where payment of orders is to be made, with the result that some Referees always require payment to be made into court whereas others normally expect that payments be made direct from one party to another.[133] Orders or approved settlements requiring a person to pay money or deliver specific property to another are deemed to be orders of the District Court of which the Tribunal is a division, and are enforced accordingly.[134]
The South African provision requiring Commissioners to enquire as to the means of judgment debtors to pay money orders is a helpful and realistic one. This is in view of the vagaries of the enforcement process and the greater likelihood that, if there is an agreement as to a realistic time-frame, payment will actually be made without the parties having to take enforcement measures.[135] The South African provision requiring direct payment to the judgment creditor produces a quicker, easier and simpler method of payment, which saves court staff time, and which gives the parties more control of the process. However, this provision could be subject to the overriding discretion of the judicial officer, particularly in cases where the creditor requests payment into Court so as to avoid any further disputes about whether or not the money has been paid and to minimise further contact between hostile parties. The automatic final sanction of the Court process which buttresses both the South African and New Zealand systems is important for the effectiveness and credibility of the small claims process in both countries.
One of the objectives of the small claims system is to provide swift and effective justice. Thus, both the South African and the New Zealand systems provide that orders of the presiding officer are final.[136] However, both systems recognise that there may be situations in which the proceedings of the system need to be reviewed either by the presiding officer or by a higher Court, with a view to preventing miscarriages of justice.
The South African Commissioner may, upon application by any person affected thereby, rescind or vary any judgment granted in the Court. First, this may occur where judgment was granted in the absence of the person against whom that judgment was granted, provided the application is made within six weeks after the applicant first had knowledge of the judgment. Secondly, this may occur where the judgment was void, obtained by fraud, or as a result of a mistake common to the parties, provided the application is made not later than one year after the applicant first had knowledge of any errors.[137]
The New Zealand Referee may, upon application within 28 days of an order or settlement, order the rehearing of a claim, to be had upon such terms as he or she thinks fit.[138] In the case of a party who was absent at the hearing, he or she may apply on the ground that there was sufficient cause for the failure to present his or her case.[139] In the case of an approved settlement, a rehearing may be ordered only where after the hearing a party to the settlement discovers facts directly relevant to the dispute that could not, with reasonable diligence, have been obtained before the hearing and that, if known at the time, would have had a bearing on whether that party agreed to the settlement.[140]
Both systems rightly vest a considerable measure of discretion in the hands of the presiding officer as to whether the original outcome should be set aside and a rehearing granted. Although rehearings can be used as a stalling tactic by those disgruntled with the outcome of a hearing, they are an important safeguard against potentially unfair results, particularly where parties have through no fault of their own been unable to attend the initial hearing.
In South Africa, no appeal lies from a judgment or order of the Small Claims Court.[141] However, proceedings may be taken on review to the Supreme Court on the grounds of absence of jurisdiction, interest in the cause, bias, malice or corruption on the part of the Commissioner, and gross irregularity with regard to the proceedings.[142]
In New Zealand, a party to the Tribunal proceedings may without expense appeal on the grounds that the proceedings were conducted by the Referee in a manner that was unfair to the appellant and prejudicially affected the result of the proceedings.[143] The right of appeal was provided to allay suspicions of the informality of the Tribunal’s procedures and “any fears that the summary trial of disputes could lead to the arbitrary and capricious exercise of the wide discretionary powers that must necessarily be imposed on a Referee”.[144] A supplementary procedure for disputants dissatisfied with proceedings in the Tribunal is to apply to the High Court for review of the proceedings under the Judicature Amendment Act 1972. Like appeal under the Disputes Tribunals Act, judicial review is concerned not with the merits of the dispute but with the process by which the decision was reached.[145] The right to apply for judicial review exists in addition to the right of appeal, unless the exercise of the appeal has removed the breach of natural justice.[146] Judicial review also lies where the Tribunal has acted outside its jurisdiction.[147]
The number of reviews and (in the case of New Zealand) appeals, in proportion to the number of claims heard, is small, and the great majority are unsuccessful.[148] However, like the rare appeals from the New Zealand Court of Appeal to the Privy Council, the right of appeal or review has a significance beyond the cases in which it is exercised. This right encourages a sense of accountability, particularly about procedures and the reasons for decisions. The New Zealand system offers the advantage of an inexpensive right of appeal for litigants who allege procedural unfairness. It is especially appropriate that the New Zealand system should provide this accessible and inexpensive appeal procedure to supplement the right of review to the High Court. This is in view of the fact that the New Zealand Referees are not normally legally trained, and exercise a higher level of jurisdiction than that exercised by the South African Commissioners.
Comparison of the South African Small Claims Court and the New Zealand Disputes Tribunal has revealed a number of common characteristics. At the same time, each system has highlighted strengths and weaknesses not shared by the other.
Improvements that could be made to the South African system in the light of the New Zealand experience are:
* payment and training of presiding officers;
* openness of the forum to all parties including corporate plaintiffs;
* provision for supporters;
* private hearings;
* hearings normally heard in the applicant’s forum;
* provision for day hearings;
* provision for the presiding officer to assist the parties to negotiate agreed settlements;
* provision for orders which declare non-liability to pay;
* provision for appeals to the next level in the court hierarchy on the ground of procedural unfairness.
Improvements that could be made to the New Zealand system in the light of the South African experience are:
* legal qualifications and legal experience to have greater weight in the appointment of the presiding officer;
* a cautious approach to the financial limits of jurisdiction, which takes into account the system as a whole, yet which allows for incremental change without the need for legislative amendment;
* provision for recovery of debts subject to controls on the number of actions brought at any one time;
* the statutory requirement of a preceding letter of demand from the plaintiff and provision for the defendant’s response to be lodged prior to the hearing;
* access to a legal assistant assigned to the local Court;
* provision for evening sittings;
* provision for costs directly related to the proceedings to be recoverable by the successful party;
* statutory provision for the presiding officer to enquire into the judgment debtor’s ability to pay;
* statutory provision for direct payment to the judgment creditor.
It is my submission that the South African and New Zealand systems stand to gain from the insights and experiences of each other. Improvement of the two systems will further enhance the valuable role which they play in providing access to justice for those with small civil claims.
[*] Professor of Law, University of Waikato, Referee, Disputes Tribunals of New Zealand. I thank the University of Waikato for the opportunity afforded to me to visit South Africa to study the Small Claims Court. I thank Mr Cyril Mncwabe, Clerk of the Small Claims Court Durban, for the valuable assistance that he gave me; and Mr Ian Gough, Legal Assistant of the Small Claims Court Durban, and Messrs S Manikam and L Mehta, Commissioners of the Small Claims Court Durban, for the helpful insights they provided.
[1] Spiller, P The Disputes Tribunals of New Zealand (1997) 3-5.
[2] Bredenkamp, I M The Small Claims Court (1986) Introduction.
[3] The pilot projects began on 1 October 1985 in Durban and six other centres, and by late 1990 84 Small Claims Courts had been established (Gough, I “The Small Claims Court: A Court with a Human Face?” (unpublished LLM thesis, University of Natal, Durban, 1992) 14). The power of the Minister of Justice to establish Small Claims Courts is provided in s 2 of the Small Claims Courts Act 1984.
[4] Small Claims Courts Act 1984, s 8.
[5] See Spiller, supra note 1, at 11.
[6] Small Claims Courts Act 1984, s 9(2).
[7] Section 25(1)(d) and Rule 2(3)(a).
[8] There has recently been a concerted attempt to persuade Black lawyers to become Commissioners: interview, Mr Cyril Mncwabe, 15 July 1997.
[9] See eg the Queensland Small Claims Tribunals Act 1973, the Victorian Small Claims Tribunals Act 1973, the Western Australian Small Claims Tribunals Act 1974, and Spiller, supra note 1, at 12.
[10] Small Claims Courts Act 1984, s 9(6).
[11] Disputes Tribunals Act 1988, s 7(2)(a).
[12] CRESA, Disputes Tribunal Research Project (1997) 15.
[13] Disputes Tribunals Act 1988, s 18(1) & (6).
[14] Sections 18(6) and 51(1). 93% of Referees believe that legal knowledge is essential for them to carry out their role (CRESA, supra note 12, 34).
[15] The current proposal favoured by the Minister of Justice is to increase the Tribunal’s jurisdiction to $7500 and $12000 by consent. Note, increasingly Referees are acquiring legal qualifications: 26% have law degrees and 16% of Referees have partially completed law degrees (CRESA, supra note 12, 15).
[16] Small Claims Courts Act 1984, s 9(1)(a): there is special provision for the appointment of Commissioners by Magistrates, to hear particular claims (s 9(1A)).
[17] Small Claims Courts Act 1984, s 9(3) & (5).
[18] Disputes Tribunals Act 1988, ss 7(1) and 8. See also Spiller, supra note 1, at 17.
[19] Disputes Tribunals Act 1988, s 7(4).
[20] Spiller, supra note 1, at 19-21 and 102-103; and CRESA, supra note 12, 30.
[21] Spiller, supra note 1, at 11. In one case observed in Durban, the seemingly straightforward claim for return of a tenancy bond and refund of rental masked a highly emotional interaction in which the landlord was accused of abuse by his daughter, who had in turn elicited the aid of the tenant.
[22] Gough, supra note 3, at 374, argues that there needs to be greater financial involvement on the part of the State in the running of the Courts. He also argues that Commissioners require training, courses and lectures, particularly as the Small Claims procedure is different from that in which the Commissioners have been trained, and because the Act vests much discretion in the hands of the Commissioner but with few guidelines (at 295).
[23] Dawson, J P A History of Lay Judges (1960) 293.
[24] Small Claims Courts Act 1984, s 22. Except for the express provision as to consent to a higher financial limit, the position is the same in New Zealand (Spiller, supra note 1, at 28).
[25] Small Claims Courts Act 1984, s 46(a), and Spiller, supra note 1, at 132.
[26] Cf the Fijian Small Claims Tribunals Decree 1991.
[27] The current exchange rate of the South African Rand would translate R3000 into approximately £400, A$860 and C$890. In England the jurisdictional limit is £3000, in Queensland, Victoria and ACT it is A$5000, and in Ontario it is C$6000 (Spiller, supra note 1, at 36).
[28] Small Claims Courts Act 1984, s 15.
[29] Ibid.
[30] Small Claims Courts Act 1984, s 16.
[31] Interview, Mr Manikam, Commissioner Small Claims Court, 15 July 1997.
[32] Interviews with Small Claims Courts Commissioners, Durban. In the Durban Small Claims Court, which is one of the oldest and busiest in South Africa, an average of over 1600 claims have been lodged each year over the past five years.
[33] These levels would translate approximately to R9000 and R15000.
[34] Disputes Tribunals Act 1988, s 11.
[35] Spiller, supra note 1, at 29 and 32; and CRESA, supra note 12, 50.
[36] Ibid, 25. Note, both systems allow for abandonment of part of a claim to bring it within jurisdiction. The South African Act helpfully makes clear that if a claim which has been partly abandoned “is granted in part only, the abandonment shall be deemed first to apply to that part of the claim ... which was not granted” (ie the claimant is not to be penalised by the artificial jurisdictional limit).
[37] Small Claims Courts Act 1984, s 23.
[38] Disputes Tribunals Act 1988, s 36(2). South African legal authority provides helpful guidance on the situation where a claim is within jurisdiction but a counterclaim exceeds jurisdiction. The South African approach is that where the counterclaim is interconnected with the claim and depends upon a determination of the same issues, the matter should not be pursued in the Small Claims Court (Strauss, SAS You in the Small Claims Court (2 ed, 1990) 39, and Swart v Sher 1987 (2) SA 454). It is submitted that the same approach should be adopted in New Zealand.
[39] Small Claims Courts Act 1984, s 29(1)(b). There is also the restriction, discussed below, that juristic persons (corporate bodies) may not institute claims in the Small Claims Court.
[40] Disputes Tribunals Act 1988, s 11(1)(a).
[41] Spiller, supra note 1, at 31. A slight majority of Referees believe that the Tribunals’ jurisdiction should be extended to include matters of debt (CRESA, supra note 12, 34).
[42] Small Claims Courts Act 1984, s 7(1). Similarly, the Queensland Small Claims Tribunal limits claims that arise out of a contract between a consumer and a trader to a consumer that is not a corporation.
[43] Strauss, supra note 37, at 9-10.
[44] Small Claims Courts Act 1984, ss 7(1) and 14(1).
[45] This is also the approach of the ACT Small Claims Act 1974 and the Tasmanian Magistrates Court (Small Claims Division) Act 1989.
[46] Disputes Tribunals Act 1988, s 3, and Crown Proceedings Act 1950, s 12.
[47] Spiller, supra note 1, at 31.
[48] CRESA, supra note 12, 49.
[49] Spiller, supra note 1, at 44-45, and CRESA, supra note 12, 77-78. See also Ramsay, “The NSW Consumer Claims Tribunals” (1987) 12(4) Legal Service Bulletin 145, 146, and Yin and Cranston, “Small Claims Tribunals in Australia” in Whelan, C J Small Claims Courts (1990) 66.
[50] Oxley, P Small Claims Tribunal Evaluation. Volume 1: Discussion Paper (Wellington, Policy and Research Division, Department of Justice, 1986) 11.
[51] Ibid, 27. See Moulton, “The Persecution and Intimidation of the Low-Income Litigant as Performed by the Small Claims Court in California” (1969) 21 Stanford Law Review 1657, 1660; Weller, Ruhnka and Martin, “American Small Claims Courts” in Whelan, supra note 49, at 22; and Ramsay, “Small Claims Courts in Canada” in Whelan, ibid, 37.
[52] Section 14(2) & (4).
[53] Disputes Tribunals Act 1988, s 38(2).
[54] Sections 27 and 38.
[55] Section 38(7). However the presence of lawyers is allowed where the lawyer in question is a party to the dispute or is the majority shareholder of a company involved in the dispute.
[56] Section 38(5)-(6).
[57] See the Queensland Small Claims Tribunals Act 1973, the Victorian Small Claims Tribunals Act 1973, the New South Wales Consumer Claims Tribunals Act 1987, the Western Australian Small Claims Tribunals Act 1974, the South Australian Local and District Criminal Courts Act 1926, Part VIIA, and the Tasmanian Magistrates Court (Small Claims Division) Act 1989. In Canada, all jurisdictions except Quebec permit lawyers to represent clients before the Small Claims Courts.
[58] Spiller, supra note 1, at 59-60, and National Working Party on Mediation, Guidelines for Family Mediation (1996) 24.
[59] Small Claims Courts Act 1984, s 4(1).
[60] Section 6(2).
[61] To similar effect is the Fijian Small Claims Tribunal Decree 1991, s 25, and the ACT Small Claims Act 1974, s 18(1).
[62] Small Claims Courts Act 1984, s 4(2). See also s 4(3).
[63] Disputes Tribunals Act 1988, s 39(1).
[64] Spiller, supra note 1, at 13.
[65] Ibid, and Secretary for Justice to Minister of Justice, 11 May 1979.
[66] Disputes Tribunals Act 1988, s 39(3). Cf the Western Australian Small Claims Tribunals Act 1974, s 33(1)(a), and the New South Wales Consumer Claims Tribunals Act 1987, s 22(2).
[67] R Montagu, for Secretary for Justice, to Minister of Justice, 6 May 1976.
[68] Spiller, supra note 1, at 11.
[69] Disputes Tribunals Act 1988, s 39(3).
[70] See the Small Claims Courts Act 1984, s 14, for further details of this provision. Jurisdiction of a particular Court may be obtained where a defendant takes no objection to the jurisdiction.
[71] Section 11(1) & (3).
[72] Section 29(1).
[73] The Durban Small Claims Court commenced sittings at the University of Natal, Durban, but was later moved to premises in the city centre to make it easier for Commissioners to attend.
[74] Small Claims Courts Act 1984, s 29(2). This is currently in the R40-R50 range, depending on the distance to be travelled (as indicated below, costs may be recovered by the successful plaintiff).
[75] Section 29(3).
[76] Disputes Tribunals Act 1988, s 24.
[77] Section 55.
[78] Section 24(1).
[79] Rule 5(1).
[80] Disputes Tribunals Act 1988, s 25(1).
[81] Rules 10 and 12.
[82] District Courts Act 1947, s 17(1)(c).
[83] Secretary for Justice to Chairman, Justice and Law Reform Select Committee, 12 April 1988. See District Courts Rules 1992, r 113(1)(a).
[84] By contrast, the New Zealand private member’s Small Claims Tribunals Bill of 1975, which was largely a replica of the New South Wales Consumer Claims Tribunals Act 1974, proposed an administrative tribunal independent of the judicial system.
[85] Small Claims Courts Act 1984, s 33(1).
[86] Section 26(1)-(3).
[87] Section 27(2).
[88] Section 28.
[89] Constitution of South Africa Act 1996, s 6; and Small Claims Courts Act 1984, s 5(2).
[90] Small Claims Courts Act 1984, s 48: the Commissioner’s sentence must be reviewed by a Supreme Court Judge.
[91] There was some confusion amongst parties as to how to address the Commissioner, with epithets such as “sir”, “your worship” and “your honour” being used.
[92] The Small Claims Courts Act 1984, s 35, contains helpful provisions regarding judgment by default. Where the defendant fails to appear, the Court “may, upon application by the plaintiff, grant judgment for the plaintiff in so far as he has proved the defendant’s liability, and the amount of the claim to the satisfaction of the Court”; and where the plaintiff fails to appear, “the Court may, on application by the defendant, dismiss the plaintiff’s claim, provided that the plaintiff may again institute an action for that claim with the consent of the Court”. For similar but less explicit provisions in the Disputes Tribunals Act, see s 42(1).
[93] In one case the Commissioner adjourned for an inspection in loco, as the motor vehicle accident had taken place in the street below.
[94] Sections 44 and 54.
[95] Section 40(4).
[96] Section 40(2).
[97] R Montagu, for Secretary for Justice, to the Statutes Revision Committee, 29 March 1976, and Jamieson Castles Gould v Lacey (1986) 3 DCR 353, 355.
[98] Section 40(3).
[99] Section 40(1).
[100] MŠori Language Act 1987, s 3: this Act lists the Disputes Tribunal as one of the Tribunals before which MŠori may be spoken.
[101] Disputes Tribunals Act 1988, s 56.
[102] See Ramsay, “Small Claims Courts in Canada” in Whelan, supra note 49, at 26-27; Whelan, “Small Claims in England and Wales”, in Whelan, ibid, 100, 104; Greer, “Small Claims in Northern Ireland”, in Whelan, ibid, 138; Ervine, “Designing a New Scheme for Scotland” (1986) New Law Journal 615; and the ACT Small Claims Act 1974, the Northern Territory Small Claims Act 1974, the South Australian Local and District Criminal Courts Act 1926, Part VIIA, and the Tasmanian Magistrates Court (Small Claims Division) Act 1989.
[103] Supra note 83.
[104] Small Claims Courts Act 1984, s 9(6).
[105] Section 34(a)-(b).
[106] Section 34(c).
[107] Section 34(d).
[108] In one dispute, where each side gave a different version of a conversation which was witnessed by a third party who was not at the hearing, the Commissioner, before adjourning the hearing for the third party to be summonsed, asked the parties to think about the fact that at the adjourned hearing one of them would lose face.
[109] Disputes Tribunals Act 1988, s 18(1)-(2).
[110] Section 18(5)-(6).
[111] See Spiller, supra note 1, at 92-93, 98-99. Most Tribunal users “expected, and wanted, their disputes to be resolved through adjudication” (CRESA, supra note 12, 75).
[112] Research in New Zealand and overseas has indicated that between one-third and one-quarter of disputes end with an agreed settlement (ibid, 98). A recent analysis of Tribunal outcomes revealed that “the vast majority of disputes that get to hearing resulted in referees making decisions” (less than a fifth of disputes concluded with an agreement) (CRESA, supra note 12, 60 and 75).
[113] Folger and Baruch Bush, “Ideology, Orientations to Conflict, and Mediation Discourse” in Folger, J P and Jones, T S (eds) New Directions in Mediation (1994) 4.
[114] Gough, supra note 3, at 374, argued that alternative methods of dispute resolution especially mediation need to be encouraged in the Small Claims Court.
[115] Small Claims Courts Act 1984, s 38.
[116] Section 16(d).
[117] Section 16(e) & (g).
[118] Section 37.
[119] Disputes Tribunals Act 1988, s 19(1)(a).
[120] Section 19(1)(b)-(f).
[121] Sections 2 and 19(1)(d).
[122] Section 19(1) and (3).
[123] Section 19(8).
[124] Section 43(1). See Clark, “Small Claims Courts and Tribunals in Australia: Development and Emerging Issues” [1991] UTasLawRw 7; (1991) 10 University of Tasmania Law Review 201, 210), the South Australian Local and District Criminal Courts Act, 1926-75, s 152d, the Western Australian Small Claims Tribunals Act 1974, s 35, and Ramsay, “Small Claims Courts in Canada” in Whelan, supra note 49, at 27.
[125] Costs are also seen to add to formality and technicality, and encourage the participation of lawyers. For the exceptions to this principle, see the Disputes Tribunals Act 1988, s 43(2)-(4).
[126] Small Claims Courts Act 1984, s 39.
[127] Section 41(1).
[128] Section 38.
[129] Section 41(1).
[130] Disputes Tribunals Act 1988, s 19(2).
[131] Spiller, supra note 1, at 33.
[132] Department of Justice, Minute Sheet, 5 November 1993.
[133] A survey of Tribunal outcomes for a selected period in 1997 revealed that nearly two-thirds of orders were paid directly to the parties (CRESA, supra note 12, 60).
[134] Disputes Tribunals Act 1988, s 45(1) and 47(1).
[135] The 1994 New Zealand Ministry of Consumer Affairs Review strongly recommended that Referees ask parties about their means at the end of the hearing and order instalment payments where appropriate (Review of the Operation of Disputes Tribunals from a Consumer Perspective (Wellington, Ministry of Consumer Affairs, 1994) 111).
[136] Small Claims Courts Act 1984, s 45, and Disputes Tribunals Act 1988, s 23.
[137] Small Claims Courts Act 1984, s 36(a)-(b). The Commissioner may also correct patent errors in any judgment (s 36(c)).
[138] Disputes Tribunals Act 1988, s 49(1).
[139] Section 42(2).
[140] Section 49(2)(c).
[141] Small Claims Courts Act 1984, s 45.
[142] Section 46.
[143] Disputes Tribunals Act 1988, s 50(1) (this also applies to an inquiry conducted by an Investigator appointed by the Referee).
[144] R Montagu to Chief Parliamentary Counsel, “Small Claims Tribunals Bill: Commentary”, 8 May 1975, and (1975) 401 New Zealand Parliamentary Debates 4828.
[145] Bradley v Taylor, unreported, High Court Christchurch, CP 240/93, 18 April 1994.
[146] Bellis v Green [1991] NZHC 1471; (1991) 5 PRNZ 21, 26.
[147] NZI Insurance New Zealand Ltd v Auckland District Court [1993] NZHC 1800; [1993] 3 NZLR 453.
[148] Interview, I Gough, 15 July 1997 and Spiller, supra note 1, at 137. Similarly, in Australia, appellate courts have seldom allowed appeals (Clark, supra note 124, at 208).
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