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Ask Georgie: The law is in your hands

By GEORGINA CROUTH Time of article published Feb 15, 2016

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Durban - Freelancing is seldom a lucrative career move, and certainly not for the meek. Besides finding enough work to sustain you, getting paid can be a waiting game, which is why you need quite a substantial financial “cushion” to see you through those inevitable lean months.

Some companies are fantastic when it comes to payment, others seem to relish the torture of the wait.

One of my first freelance writing jobs was for a food sector trade publication. I did what was required, submitted the copy before deadline and sent my invoice. Months later, after my patience had run out and the tone of e-mails had soured because of their obstinate non-payment (a staff member quietly admitted not paying was the publisher’s modus operandi), a veteran journalist from the Southern African Freelancers’ Association advised: take them to the Small Claims Court. For the “little guy” who doesn’t have money to go legal, it’s your best bet to “get your own back”.

My claim was about R8 000 – well below the court’s current R15 000 threshold.

I did as he advised and received payment within a month. Having waited six months for my money, it wasn’t about the money any longer: it was the principle.

But lawyers become rich on matters of principle, which is why the Small Claims Court saves people like me who feel aggrieved about relatively trifling amounts. After all, a simple lawyer’s letter costs more than R1 500, and often that’s not where it ends.

Vanita (surname withheld) e-mailed me recently about a casting agency that was dragging its heels in paying her.

“I have been an extra (background actor) with a casting agency for many years and have done a fair amount of work for them. The previous owner always ensured we got paid as soon as the money was paid by the production house. Things have changed since the new owner took over.

“I was chosen to do a corporate shoot for a company which I did on August 19, 2015, and I was told by the booker at the casting agency that I would be paid latest after three months. However, this has not happened, despite numerous calls to the owner/finance controller, who was never available.

“I left numerous messages for him, including three e-mails in the past two months. He has never called back or responded to queries about the payment. One of the staff members confirmed payment had been received from the production house, but only he could authorise release of the money to me. To date he has not done this, and it is quite frustrating to continue calling and never getting hold of him. I know of two other people who are battling to be paid for work done for this casting agency. Is there any recourse for me?”

There is, I told her: take them to the Small Claims Court.

The process is relatively simple: you represent yourself, instead of hiring a lawyer, so besides potentially having to take time off to go to court, it’s not going to cost you much.

The court also has clerks and legal assistants on hand who are able to offer free advice, but if you prefer, you could consult a lawyer beforehand. They can’t, however, fight for you in the Small Claims Court.

Before you approach the court, you need to contact the company or person against whom you are claiming via a letter, e-mail, or even phone call, and insist on payment.

If they don’t satisfy your claim, write a letter of demand, setting out the facts and the amount for which you’re claiming. It’s important to note that you need a physical address and contactable phone number in order to make a claim – either a residential or work address. Send this by registered post or via courier – it is best to have the letter of demand hand-delivered because they need to sign for it and you need to be able to prove that they have, in fact, received it.

Once that has been delivered, give them 10 working days in which to respond. If after that they’re still stone-walling you or making empty promises, it’s time to go to court.

Take your documents to court and ask the clerk to issue a summons. They will provide you with a court date.

Next, either deliver the summons yourself or ask the Sheriff of the Court to do so. Sheriff’s fees vary, but it’s usually between R100 and R200. By this stage, whoever owes you money will either decide to pay up to avoid the inconvenience of having to go to court, or fight the matter in court.

If they decide to go to court, both of you must appear in court. And even if the defendant is in another city, they need to appear in the court where you lodged your claim.

Bring all your documentation along, as well as witnesses if you have any, and be prepared to testify to the commissioner.

The commissioner’s judgment is final and if it’s ruled in favour of the plaintiff, the defendant must either pay up immediately or make a payment arrangement that is agreeable.

It’s a relatively pain-free exercise and if you want your money and comeuppance, the Small Claims Court is your best option.

Wise up

WHO MAY claim: Anyone over the age of 18 may claim, except for companies, associations or close corporations – what is known as juristic persons. If you’re under 18, your parents or guardians need to assist you.

Against whom? You can claim against individuals, companies, close corporations and associations but not against the state, municipalities or city council.

What amount can you claim for? The threshold is R15 000, but you can reduce the claim so it falls into the court’s jurisdiction. However, you cannot split claims. For example, if someone owes you R20 000, you cannot split the amount into two R10 000 claims.

What is outside the court’s jurisdiction? Claims against the state, damages, defamation, wrongful arrest, breach of promise to marry, seduction and divorce-related matters, the cession or the transfer of rights, will contestations and mental incapacity.

What to take to the clerk? Proof that the written demand was delivered, any relevant contract, document or other proof upon which your claim is based, the full name and address (home and business addresses, if available) and telephone number of the opposing party.

Expecting a fight? The opposing party may deliver a written statement (plea) to the clerk of the court and send a copy to the applicant. The defendant could issue a counter-claim to the clerk of the court. If that happens, you’ll need to go to court. If they comply, you’ll have to issue a written receipt and inform the clerk of the court that you are no longer proceeding with the case.


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