By Barbara Whittle
The Law Society of South Africa (LSSA) is concerned at the shortage of commissioners in the small claims courts around the country. Attorneys are, therefore, urged to make themselves available to serve on a pro bono basis as small claims court commissioners.
The ‘Small claims courts: Guidelines for commissioners’ produced by the Department of Justice and Constitutional Development indicate that, currently, the small claims system in South Africa is dependent on the goodwill and dedication of commissioners. Sitting times of the courts are scheduled after hours so that commissioners can fulfil their small claims court duties without interference with their legal practices.
The guidelines note that the function of commissioners is essentially adjudicative or judicial in nature in that they adjudicate over small civil disputes between plaintiffs and defendants. After the hearing, the commissioner is empowered to grant judgment for either party in respect of the claim, the defence or the counter-claim, insofar as the case has been proved.
The commissioner’s decision is based solely on the evidence presented by the parties during the trial and in accordance with the law. If the commissioner is of the opinion that the evidence does not enable him to give judgment for either party, he may grant absolution from the instance. The commissioner may also grant such judgment as to costs as may be just. The commissioner performs his duties without the assistance of attorneys or advocates, with a considerable amount of discretion and flexibility in the procedure. The commissioner’s decision is final and subject to review only.
The guidelines state that, to be appointed a commissioner, a practitioner should have legal qualifications and an uninterrupted period of at least five years of practical experience or involvement in the tuition of law. Commissioners are appointed on a voluntary basis and are not remunerated.
Compiled by Barbara Whittle, communication manager, Law Society of South Africa, barbara@lssa.org.za
This article was first published in De Rebus in 2013 (April) DR 13.
