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Step One: Initiating Proceedings under the Small Claims procedure
As has been previously reported, the Small Claims Procedure has been introduced in the Subordinate Courts in Lesotho as an initiative of the civil legal reform project. Cases brought under this procedure will initially be heard from Tuesdays – Thursdays in the afternoons at the assigned court - Mokhorong oa Khotla – at the Magistracy in Maseru. With time, and lessons learned, these will be rolled out to the rest of the country.
The Small Claims Procedure aims to provide a more accessible, swifter and less expensive option for claims amounting to M10, 000 or less. These claims concern civil disputes, and may be related to the collection of debts, disputes between landlords and tenants as well as other business claims.
While the rules of Civil Procedure and Evidence will still apply, under the small claims procedure, the rules have generally been simplified so they are easy to use, faster, and therefore more economical.
Completing a Summons
If you have a complaint and want to make a claim - as a Plaintiff - under the procedure, the first step would be to obtain and complete a form titled ‘Summons Commencing Action’ (Form A). This form is available at a special registry at the designated court - the Mokhorong oa Khotla – at the Magistracy. At this registry there is a Clerk of Court who provides assistance in understanding and completing the form. This is a simple form that is an order by the court requiring the party you are bringing the complaint against – called the Defendant – to appear before the court on a specific date to respond to the claims made.
The Small Claims Procedure Rules tasks the Clerk of Court with completing the summons on behalf of the Plaintiff, and reading and explaining its content and form.
The first part of the form requires the filling in of the correct names and address of the Defendant, to whom the summons is addressed. The form also indicates:
- The name of the person making the complaint (Plaintiff);
- The date, time and place the Defendant is required to appear before the court;
- The nature and details of the complaint (the civil action) against the Defendant, including the amount being claimed by the Plaintiff which should not exceed M10, 000; and
- A list of the responses available to the Defendant.
As the Plaintiff, once you have understood and agreed with the content of the summons, you will sign the form. The Clerk of Court then authenticates the document by signing it, and placing on it the seal of the court. At a later stage, should there be problems identified with the content or form of the summons, these can be corrected at the start of the hearing. The Clerk of Court shall also have advised the Plaintiff on witnesses and the applicable fees.
The Clerk of Court will produce two copies of the summons. If there is more than one Defendant, more copies will be made. The Clerk of Court will give these copies to a messenger of the court, to deliver to the Defendant(s) at the provided addresses. The messenger of the court will use the usual avenues of serving court process, with the addition that, where circumstances require, service of documents may be made in the presence of a chief, headman, or a member of the police service.
Responding to a Summons
If you receive a summons under the Small Claims Procedure, as the named Defendant, you must respond within 14 days of receiving the summons. Failure to do so will result in what is called a Default Judgment. This means that the court will make a judgment in your absence in favour of the Plaintiff.
To respond to the claim, you will complete the second part of the summons form that is clearly titled ‘Response to Summons by Defendant’.
In responding to a claim, a Defendant has the following options available:
- Admitting the claim as demanded;
- Admitting the claim partially;
- Proposing for an out-of-court settlement, using available alternative dispute resolution mechanisms available such as Restorative Justice or Court-Annexed Mediation;
- Denying the claim in total and proposing to defend the claims set out;
- Filing a counter-claim or set off (provided it does not exceed the limit of M10, 000); and
- Requesting that the case be removed from the small claims procedure, and placed in the ordinary civil process.