Presenting your evidence in the small claims court Part 4
As the defendant immediately you receive the summons with the court date, notify your witnesses and ask them to confirm their availability. If you think a witness is key to your case and not available on the court date, contact your opponent immediately and see if you can agree a postponement with them to a date convenient to both parties and all their witnesses. If your opponent refuses to agree to that arrangement and you can establish to the court that the witness is material to your case, take along to court on the trial day, copies of your correspondence, in that regard, in whatever format, to show the commissioner that despite your best efforts, your opponent would not agree another date. This will assist you in securing a postponement.
Do not just fail to arrive at court. You must be in court at the appointed date and time for the trial otherwise you risk default judgment against you or dismissal of your claim.
If you cannot have a witness attend court, obtain an affidavit (that is a statement sworn to under oath to God or a secular affirmation) which you can present to the court. It would be useful if the affidavit tells the court why the witness is unable to attend at court and then deals with the particular issues on which they are able to give evidence.
The witness giving testimony (by way of affidavit or in person in court should give evidence only in respect of facts of which they have personal and direct knowledge). The formal rules of evidence do not apply. Commissioners can accept hearsay evidence, that is evidence that is reliant on the truth of someone who is not present at court to give evidence. The Commissioner will take into account that such evidence is not always particularly persuasive or necessarily reliable. So, it does not usually assist to have a witness who says person A told them that they saw X, Y and Z happened.
You may need expert witnesses to give evidence about the nature and quantum of damages. For example, a panel beater for a motor car or an electrician or a builder. They may not be willing to attend court without being paid for their attendance. You cannot recover those costs from the other parties. An alternative would be to obtain an affidavit from that witness.
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.
Donald Dinnie Director Norton Rose Fulbright South Africa Inc
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