TODAY’S topic resonates with almost everyone old enough to enter into contracts: People or organisations that refuse to pay what they owe to ordinary people.
Rights: MIRIAM TOSE MAJOME
A loan is given or something is sold, but the money just won’t come as it was supposed to.
There are demands, pleas and threats issued, but there are only excuses or complete silence as if nothing happened. We discuss more effective ways of pursuing private debts.
Spoliation
It is tempting to wrest goods from a person who won’t pay for them. It seems the most logical thing to do as does confiscating something of value as a replacement or security for a debt.
It seems justified when you see a debtor continue going about their daily business using items which they never paid for.
It is obvious they have money, but they have other priorities and paying your debt is the least of them.
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However, grabbing property for whatever reason is strictly forbidden because self-help acts also called spoliation are unlawful.
Any court will order return of the confiscated items back to the person they were grabbed from even if they didn’t pay for them.
Locking a tenant out of rented property for rent arrears is also an act of spoliation and any court will order the lodger be allowed back even if they are in arrears.
The only way to vindicate one’s property or money is through a court order. Debts of whatever nature or value have to be pursued in a lawful manner no matter the cost.
People are never allowed to take the law into their own hands and have to use established legal resources and procedures.
Acknowledgement of debt
There are simple, but very effective steps that people can take to secure debts without resorting to drastic measures.
Verbal agreements are valid and enforceable. However, it is wise to write everything down and have it signed by all parties and witnesses.
Agreements can be drafted in handwriting, but must be clear about what it is that is being agreed to.
Simplicity is key as the validity of an agreement is not determined by the extent of its complicated legal jargon and Latin terms that bamboozle even the lawyers themselves.
However, it is always best to have contracts drafted or reviewed by legal practitioners.
If no written agreement exists it is encouraged to get a debtor to formally acknowledge a debt in writing.
A simple and clear signed statement acknowledging the debt may suffice although a professionally drafted and signed document is best because it will detail all the debtor’s obligations and creditor’s rights.
Such a formal acknowledgement makes it easier to pursue the debt in court and get a judgment to enforce payment.
This is not to say that debts which have not been acknowledged cannot be proved. The creditor only has a greater burden of proof.
Merely denying a debt is not enough to disprove it because a judgment can still be passed if the evidence supports it.
Debt collection — legal procedures
Debts are pursued through issuance of a summons or filing a court application.
It is best and more effective to pursue debts through legal practitioners than debt collectors.
Debtors have no obligations or liability to debt collectors and may as well refuse to entertain them if they choose and there are no legal consequences.
Debt collectors cannot represent litigants in court so they still have to hand over cases to legal practitioners to pursue litigation.
The court entertains debt collection cases depending on the amount at stake. The High Court’s monetary jurisdiction is above $10 000, the magistrates courts up to $10 000.
The magistrates court can also hear cases involving claims for amounts above $10 000 if parties had agreed to its jurisdiction beforehand in a written contract. This is convenient for parties in smaller towns with no High Court.
Small claims court
Small claims courts monetary jurisdiction is any amount up to $1 000.
They are found within some provinces created in terms of the Magistrates Courts Act (Chapter 7:10) and function in terms of the Small Claim Courts Act (Chapter 7:12).
They are public courts open to the public. Only individuals are allowed to appear and represent themselves without legal representation.
Companies and other associations may appear but only as defendants and will be represented by their directors, managers or employees.
Companies are not allowed to be plaintiffs although they can file counter claims against the person who instituted the claim.
This is to change when the pending Judicial Laws Amendment Bill is passed into law. The Bill seeks to amend the High Court Act (Chapter 7:06) and Magistrates Court Act Chapter (7:10) and the Small Claims Court (Chapter 7:12).
Lawyers will be able to appear in Small claims courts to represent clients, but will not be allowed to claim costs from the losing party.
They will be paid by their clients. The pending changes were necessitated by Section 69(4) of the Constitution which states that everyone the right, at their own expense to choose and be represented by a legal practitioner before any court tribunal or forum.
Previously there were some tribunals or hearings such as the small claims courts, where lawyers were restricted like some internal labour hearings.
Small claims courts have no jurisdiction over claims made under customary law, divorce claims, adultery, custody or maintenance cases or cases challenging the validity or interpretation of wills, defamation cases, malicious injury to property wrongful arrest or adultery, seduction or breach of promise marry even if the claims do not exceed $1 000.
Miriam Tose Majome is a lawyer and a teacher. She can be contacted on [email protected]
