How Do You Recover A Bad Debt?

If a debtor owes you money and doesn’t pay how do you go about recovering the amount due?

If calling for payment hasn’t helped and a final demand was ignored, you would hand the matter over. The first decision to be taken by a practitioner who is instructed to sue for payment is whether or not a cause of action exists. Once the practitioner is satisfied that you appear to have a valid claim, the next step is to determine in which court the claim should be instituted (namely in a High Court or a Magistrates’ court, or whether you can sue in a small claims court) and in the court of which area the litigation should be conducted.

If you are an individual and your claim is less than R15000 you should proceed out of the Small Claims Court. Read more about this ‘If your claim exceeds R15000 or are a juristic person (CC or company) you must sue out of a High Court or a Magistrates court’. It will be necessary to look at the amount of the claim to determine in which court proceedings should be instituted.

There is no upper monetary limit on claims which may be instituted in a High Court. Nor is there any lower limit, which means that claims which are small enough to be instituted in a Magistrates’ court (or even in a small claims court) may instead be instituted in a High Court. However, the institution of claims in High Courts which should instead have been launched in a lower court will usually result in costs on the Magistrates’ court scale only being awarded to the plaintiff even if he is successful in the High Court.

As a general rule, where the amount of the claim is R100 000 or less, proceedings may be instituted in a Magistrates’ court. This court will have jurisdiction to hear matters where the amount in dispute exceeds R100 000 where the Defendant has consented in writing to the court hearing such a claim. The same applies to claims less than R300 000, where you can proceed out of the Regional Court.

Each High Court, Magistrates’ and Regional court and small claims court exercises jurisdiction over a limited geographical area:

In the case of an individual, where the person resides, carries on business or is employed or where the cause of action arose)

In the case of a juristic person, where it has its registered address, chosen domicile address or where it carries on business.

There will be many instances in which the courts (whether it is a High Court, a Magistrates’, Regional court or a small claims court) of more than one area will have jurisdiction. In such cases, the plaintiff may choose whichever forum is the most convenient.

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