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Presenting your evidence in the small claims court Part 3

Published

2019

Fri

25

Oct

 

If you are the plaintiff, make sure you bring along a copy of your letter of demand, and proof of registered posting, or an affidavit by you where you personally delivered the letter of demand to your opponent. Also bring a copy of the summons as issued with the court date and proof of proper service of the summons by the sheriff on the defendant by way of a Sheriff’s Return of Service of the summons by the Sheriff or your affidavit confirming personal service on the defendant.  If, as a defendant, you have delivered a plea, which is a statement of defence, or other papers, bring along a copy with the proof of delivery of the plea to your opponent.

 

The same applies to any form of written contract where that is in dispute, and, if the matter relates, for example, to a lease and there is a written lease.   If one of the issues is whether payments were made or received, bring along certified copies of the relevant bank statements for the applicable period to demonstrate that, for example, no relevant payment was received in your bank account for the appropriate period or to show, for example, that a payment was made into the opponent’s bank account.  Bring along invoices, receipts and proof of payment where that is an issue. 

 

It is useful to be able to present a few alternative quotations for repairs to vehicles or other assets in relation to which you claim damages.

 

If you have an audio or video recording of any evidence bring that to court and ensure that you have a device to play the recording.  Make sure that any recordings are audible and if possible bring along a transcript of the material aspects of that evidence.  If you have physical evidence, for example, damaged clothes, if you are claiming against a laundry, bring those to court rather than photographs of the damage.  Obviously, in the case of  damage to a car or a house, evidence by way of appropriate photographs and video recordings is appropriate.  The person who took those photographs or video recordings should give evidence in court or by way of affidavit as to when they took the photographs or video recording.

 

Bear in mind that as the Plaintiff you bear the burden of proof to establish your case on a balance of probabilities.  Ordinarily the rule is that the party who makes the allegation should prove it.   You must establish your evidence that the Defendant has done something which makes them liable to you for damages.

 

Think about what elements of the dispute are not in contention.  You do not have to spend a lot of time on that in presenting your case.

 

Think about what is in dispute and how you will deal with that in evidence.  What objective evidence, such as bank accounts, invoices, receipts and written contracts are there to present to the court to substantiate your version or to gainsay a version that may be presented by your opponent?  What evidence will your opponent present to challenge your case? 

 

When practising the presentation of your case for a friend or family member ask them to play “Devil’s Advocate” and to ask questions and challenge your case.  This is the one time where they can play out their lawyer tv series fantasies and cross-examine you to ensure that you have thought of everything you need to present to the court.

 

If you have witnesses who will assist your case, ask them to agree to attend court on the designated day. There is no  mechanism for compelling their attendance so you will need to ask a favour of the witness.  If you are the plaintiff when you attend at the clerk of the court to issue the summons you can probably choose the court date so choose a date when you and your witnesses are available.   

 

Donald Dinnie

Donald is a long standing commissioner of the small claims court in Johannesburg.  He is also a director at Norton Rose Fulbright South Africa Inc. 

 
Source: Donald Dinnie Director Norton Rose Fulbright South Africa Inc
 
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