The Small Claims Procedure is part on an elaborate reform process funded by the US Millennium Challenge Corporation through the Millennium Challenge Account – Lesotho (MCA-Lesotho), and supported in its technical details by the International Law Institute – African Centre for Legal Excellence (ILI-ACLE).
The articles for the previous two weeks dealt with the trial of a Small Claims dispute before the Magistrates’ Court; and the passing of a Judgment after such a trial. This present article examines the steps involved in realizing the Judgment of the Court. As always, the winning Party will be anxious to enforce the Judgment as soon as possible, without undue delay or cost. The losing party, on the other hand, might for various reasons not respond promptly.
The experience gathered from a number of jurisdictions with a Small Claims Procedure is that in the majority of cases, Parties will deal diligently with the enforcement of a judgment, just as they did with the hearing and trial of the case in the first place – namely, mutually accommodating each other’s interests and divergent viewpoints, for the common good of both. Nonetheless, challenges could arise in the course of a Party’s efforts to enforce a judgment. Mindful of these challenges therefore, the Small Claims Procedure of Lesotho has expressly provided for legal ways and means to enforce a Small Claims Judgment.
First and foremost, conscious of the underlying speed and simplicity of the Small Claims Procedure, the Rules provide that a small claims judgment must be satisfied within thirty (30) working days form the date of the judgment – except where the Parties themselves agree otherwise. If the 30 days end without satisfaction of the judgment, the winning Party may request the Court to intervene. The Court then orders the Party in default to provide information on the nature, amount, identity and location of all the assets and liabilities of the defaulting Party. That information is provided in a single Form made available by the Court. If that Party fails to complete the Form, and to serve it to the winning party within ten (10) days, the Court may punish the failing party for contempt of court.
Secondly, an order, known as a warrant of execution, issued by the trial Court may be enforced with the assistance of any other court in the areas where the defaulting Party lives or has assets. The execution writ (i.e. the court enforcement document) is made in a Form supplied by the Court. Enforcement is through the court’s assistance. The court messenger receives the warrant; delivers it to the chief or headman of either of the winning party or of the losing party for necessary action. The court messenger then proceeds to the residence of the losing Party to demand payment of the judgment debt plus costs; or else, to attach, as much property or stock of that Party as will satisfy the debt and costs.
The Rules for the Small Claims Procedure provide elaborate safeguards to ensure security and fairness for the Party whose property is attached; as well as certainty of enforcement of the winning Party’s court judgment – including sale of the property through public auction after consultation, where possible, between the winning Party and the losing Party. The Rules do protect certain property against seizure – including essential household items of bedding, furniture, food, tools of trade, immovable property, and land allocated for crop production.
Similarly, the losing Party if unable to pay the judgment at once, may request the Court to order payment by periodical installments – in which case, execution of the judgment will be suspended for as long as he continues to pay the installments. Likewise, the Rules forbid execution against the property or stock of a losing Party from taking place between sunset and sunrise.
All these, demonstrate the fundamental flexibility and simplicity of the Small Claims Procedure; which nonetheless, aim to assure the efficiency and effectiveness of the Procedure as a tool for substantive justice in resolving disputes.Bookmark/Share