SHYLOCKS WELCOME SMALL CLAIMS COURTS

MBABANE – If the provisions of the Small Claims Courts are anything to go by, then micro money lenders (shylocks) and landlords will have it easy getting monies owed to them.

After over eight years, the Kingdom of Eswatini will finally have the Small Claims Courts and this has been confirmed by the fact that government has already advertised posts for personnel who will be hired for various positions at the aforementioned institutions.

For years, such courts were not operational in the country as there was a feeling that the Small Claims Court Act 2011, which authorised their establishments was not in line with the Constitution. 

This necessitated the amendment of the law, which was eventually done in 2019.

The call for Small Claims Courts was necessitated by the argument that many people were denied the opportunity to access justice, especially since the Kingdom of Eswatini did not have a legal aid system.

During random interviews, micro money lenders, who spoke on condition of anonymity, said they were excited at the news of the establishment of the Small Claims Courts.

“Due to the nature of our business, at times clients borrow money and not repay it. Taking the legal route can be costly, so we end up giving up and this kills the business,” one of them said.

She revealed that the last time she approached the magistrates court to seek relief for money owed to her she was disappointed as she felt the process dragged while she wanted it resolved quickly.

Another micro money lender said even though she had not yet acquired more information, she believed that clients would do the right thing and pay if they knew that there were now courts established specifically for cases related to petty monies owed.

“It is a fact that most people are scared of courts. Once we have the Small Claims Courts, clients will just repay their loans in fear of being hauled before court. It is embarrassing being summoned to court for a meager E2 000, so I believe this will help a lot,” she said.

Lawyer

Meanwhile, Human Rights Lawyer Sibusiso Nhlabatsi shared his opinion regarding the establishment of the aforementioned courts.

He said their establishment was a good development since access to justice was expensive in the country.

“So the Small Claims Courts will help those who cannot access justice because we are slow as a country in that we do not have a legal aid at the moment. It means everyone must engage an attorney when they want legal intervention yet lawyers are expensive,” he said.

However, Nhlabatsi said there was also a negative side to the establishment of the Small Claims Courts.

He said his analysis of such courts they were the same as magistrates courts.

“You cannot keep creating courts. So I feel there should have been a hybrid system used. This means on a certain day, a magistrate can be assigned with these small claim matters like they do with peace binding cases. There is a day where the magistrate deals with peace binding issues. So I feel it was prudent to do the same,” he said.

He mentioned that to hire a designated commissioner simply for petty claims court was tantamount to adding more people on an otherwise fragile fiscus since such persons had to get salaries. 

“There are a lot of magistrates in this country and you cannot say they are overwhelmed. The overwhelmed ones are the principal magistrates,” he said.

A Small Claims Court is a specialised tribunal created by statute, with specific duties and powers. 

It is designed to provide a judicial determination of disputes involving small amounts of money. 

Its procedure is significant for inexpensiveness, speed and simplicity. The Small Claims Courts deal with minor civil claims in a speedy, affordable and simple manner without using an attorney.    

Jurisdiction

In terms of the Kingdom of Eswatini laws, the Small Claims Courts have a civil jurisdiction and the amount in dispute should not exceed E10 000. 

The provision is that the litigants are expected to appear in person before court and attorneys are not entitled to represent any of the litigants. 

The operations of the Small Claims Courts will commence immediately upon the conclusion of the recruitment exercise and members of the public will be advised accordingly.

In terms of comparison, the South African justice system works in such a way that a case for an amount not exceeding E20 000 can be filed at the Small Claims Court.

According to the South African Government website, the amount is determined by the minister from time-to-time in the government gazette.

The E20 000 came into effect on April 1, 2019, while previously it stood at E15 000.

It is noted in the neighbouring country’s website that if the claim exceeds E20 000 in value, a claimant can institute a claim for a lesser amount to pursue their case in the Small Claims Court.

On the other hand, in Botswana, the Small Claims Courts’ jurisdiction is limited to a maximum of BWP10 000, which is equivalent to E13 506.87.

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