Consumer Watch

Wendy Knowler fights for your rights...

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January 9 2012 at 11:34

Did you know if you’re locked in a dispute with a company, you can seek justice with the Small Claims Court in your area?

That is if the money you claim you’re owed is not more than R12 000.

It’s not a totally free process, it must be said.

It’s designed to offer the “man in the street” access to justice that’s as cheap as possible, but while there are no legal fees to pay, you do have to pay a small amount for the service|of the compulsory letter of demand and summons on the company you claim owes you money.

If the company fails to respond, a so-called “default” judgment is subsequently granted in your favour, but if the company then fails to pay up in accordance with the judgment, things get a bit more complicated and expensive. You have to apply to a magistrate’s court to execute the judgment.

If the outfit in question is a bit dodgy – as certain players in the appliance repair and home improvement industries regularly prove to be – that can prove to be a further waste of time and money, as they know how to frustrate the process by making themselves hard to trace and/or ensuring that they have no assets in their name.

But that’s unlikely to happen in the case of large companies, as Roland Suhr, vice-chairman of the Durban Small Claims Court’s advisory board, pointed out to me recently.

He’d responded to a Consumer Watch column in which I’d erroneously stated that the Small Claims Courts’ monetary jurisdiction was R11 000, when in fact it has been R12 000 for more than a year.

“In my experience there are surprisingly few cases in the Small Claims Court, in Durban at least, against large corporations,” said Suhr.

But the few that do come before the court tended to turn out well for the consumer.

“Most of them (the companies) seem to take the line that the negative publicity and poor customer relations resulting from such cases are not worthwhile and make arrangements (to pay), except where they are convinced that the claim is|spurious.”

This reminded me of a case I’d taken up about six months ago.

In June I received an e-mail from Stephen Pain of Riversdale in the Cape, detailing his experience of taking on MultiChoice in the Small Claims Court back in 2008.

His story began in March 2007, when he wrote to MultiChoice cancelling his contract.

The company continued to debit his Nedbank account nevertheless, until he closed the account. Naturally, he wanted that money back.

“In July 2008 I began Small Claims Court action for some R6 000 and in November of that year, I obtained judgment when MultiChoice failed to attend court,” he said.

The judgment stated that MultiChoice must pay him R6 129.92, plus interest of 15.5 percent a year from September 2008.

On September 1 of that year, Pain says he faxed MultiChoice’s company secretary a copy of the judgment and a request that the money be paid to him.

“But MultiChoice continued to ignore every single communication, so my next step was|to send the Sheriff in to their head office in Randburg to seize movable assets,” Pain said.

“To achieve this, the Small Claims Court case has to be transferred to the magistrate’s court for the warrant of execution to be issued to the Sheriff.

“I moved to a remote farm with very limited communications a couple of years ago, so asked attorneys to sort out the warrant.

“Two different attorneys in Riversdale have got nowhere with it and a Cape Town firm has provided some advice but still there is no warrant, no sheriff and no refund.”

Pain sent me a copy of the judgment and his 2008 fax to MultiChoice back in 2008, and I took up the case with MultiChoice in June.

The company said it had no record of Pain’s claim, and wrote to him to request a copy of the summons and proof of its delivery to MultiChoice, proof of the delivery of the default judgment issued against MultiChoice and proof of the fax he’d sent in September 2009.

“Without this documentation, we cannot determine what happened, when and why,” the company’s legal counsel told Pain.

A ping-pong exchange of e-mails continued between Pain and MultiChoice for some time, with neither party keeping me informed, and I confess to being remiss in not following up.

Not until I got Suhr’s e-mail about the Small Claims Court being a good means for consumers to get their own back from large companies.

So, did Pain ever get his money out of MultiChoice?

This was the company’s official response to my query: “In August 2011, MultiChoice contacted the customer to indicate its intention to comply with the judgment and further requested banking details to transfer the amount owing.

“The customer declined a transfer of funds into his account and requested a cash payment. A MultiChoice representative explained that is not the policy of the company to make cash payments.

“On September 2, 2011, MultiChoice posted a cheque – by registered post at Mr Pain’s request – for the amount of R9 008.53, which was for principal amount claimed and interest owed from September 2008 to date of payment and costs.

“This cheque was subsequently returned due to non-collection and a new cheque was issued on 21 October 2011… The customer did receive the cheque.”

Pain confirmed receiving the money but said it was a few hundred rand short, and MultiChoice refused to explain its figures.

“Also there was absolutely no sign of an explanation about the initial ‘theft’ of my money, and certainly no apology for their failure to deal with it,” |he said.

“All in all, this has probably been the most negative consumer experience I have ever had.

“Thanks for your assistance.”

So he got his money in the end, but what an ordeal.

I have had reports from several other consumers who have taken their disputes with a large company to the Small Claims Court and subsequently received payment – without having to wait three years.

If you’d had such an experience, please tell me about it.

HOW DOES IT WORK?

 

First of all, no business of any kind can sue as a plaintiff in the Small Claims Court.

And you can’t institute a claim against a municipality or local government entity in a Small Claims Court.

And here’s some key advice from Roland Suhr, vice-chairman of Durban’s Small Claims Court’s advisory board: if a company threatens you with court action over an amount less than|R12 000, and you are of the view it is not a legitimate demand, you can pay the amount under |protest “and then sue the company in the Small Claims Court for repayment”.

In this way, Suhr says, “if the consumer is wrong – the concept of the open-and-shut case is dangerous – he or she is not burdened with the extra costs that accompany a magistrate’s court action. Of course, the right to appeal is forfeited, but it’s probably a small price to pay as an appeal involving such amounts is hardly a realistic proposition.”

There are 237 Small Claims Courts around the country.

For a full list and a step-by-step guide to how to institute a claim, and how the process works, go to www.justice.gov.za/scc/scc.htm 

 

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