It is fairly well established that dispute resolution, using conventional litigation processes, can be very expensive for small businesses and those in low-income groups. Seeing a case, even a simple one, through to completion, can be costly, and time consuming.
As a result, this process tends to lock out a significant proportion of the population i.e. the most socially vulnerable and disadvantaged groups.
In most countries that have implemented small claims processes, the procedure has been shown to expedite resolution and helped improve access to justice for minor disputes of relatively low value, and provided an opportunity for the more socially disadvantaged to come directly before the court and be heard. It also provides businesses and traders with much-needed quick resolutions. The small claims procedure does this by setting aside legal formalities and using more simplified procedures. These ‘People’s Courts’, as they are commonly known, can be found in South Africa, Zambia, Australia, Canada, the United States, the United Kingdom, Israel, Singapore, among other jurisdictions. Efforts are also underway to introduce the same process in Ghana and Uganda.
Consultations over the past two years with stakeholders in Lesotho have indicated positive support for establishing a Small Claims Procedure in the country with a view to expediting the disposal of this category of claims (M10, 000 and below), and minimizing the expense of prosecuting such claims.
The Small Claims Procedure has therefore been introduced in Lesotho with support from the Civil Legal Reform Project, which falls under the Millennium Challenge Compact that has been entered into by the Government of Lesotho and the Millennium Challenge Corporation. The Small Claims Procedure will be implemented in the Subordinate Courts, initially Tuesday-Thursday afternoons, under the umbrella of the court titled ‘Mokhorong oa Khotla’. With time, and with the benefit of lessons learned, the procedure will be rolled out throughout the country.
The new small claims procedural dispensation offers all sectors of our society a multiplicity of benefits:
1. It seeks to synthesize the grassroots system of justice with the modern justice systems. This is done through the amalgamation of the Basotho customary laws and the dictates of the commercial forces in modern Lesotho.
2. By providing an inexpensive and expeditiously administered form of justice, it gives all litigants, regardless of their economic or social status, better access to justice which is a basic fundamental human right, and the basis of the rule of law.
3. The court fees paid by the parties in the small claims procedure are calculated as half the amount of the fees payable under the ordinary court process. For reasons of financial hardship, these fees can be waived all together.
4. It provides a predominantly substantive and comprehensible justice that effectively excludes legal technical language.
5. While the rules of civil procedure and evidence still apply, they have been simplified and therefore present the litigants with the opportunity to present their cases in person, and not through legal representation. They therefore get the opportunity to be heard on a more level playing field.
6. It introduces a more court-driven Case Management approach where the Presiding Officer, called a “Referee”, interrogates the parties in search of an appropriate solution. It is also flexible enough to provide avenues for mediation and restorative justice, guided by its slogan, “In conflict there is disharmony, but in humility there is salvation.”
7. It promotes investment confidence inside the country by providing for an effective system through which a debt recovery judicial process is simplified and expedited.
8. It ascertains the confidence of the financial institutions that Lesotho is a safe environment for the empowerment of small traders and individuals where the Small Claims Procedure can be applied to easily recover loans and the interest thereon, as well as resolve disputes between landlords and tenants.
9. It renders justice more easily accessible beyond the normal court working hours, because the Small Claims Procedure is in principle, administered in the afternoon hours until the evening.
10. It provides consumers with an avenue through which they can seek redress to recover financial damages occasioned by obtaining poor quality products and or services.
In the coming weeks, the small claims procedure and the various steps involved will be looked at in more detail.
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