The lessees’ right of pre-emption

The Constitution of the Republic of South Africa (“the Constitution”) does not explicitly provide for a right of appeal from a Small Claims Court judgment. However, section 34 of the Constitution does provide that “everyone has the right to have any dispute […] decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum”.

Nature and Purpose of the Small Claims Court

In Chrish v the Commissioner, the High Court held that the Small Claims Court is a unique court and was developed to act as a forum that adjudicates smaller claims in an expeditious, less complicated and cost-effective manner. The idea behind the development of the Small Claims Court was, therefore, to establish a forum that would operate differently from ordinary courts. The Court, in this case, further held that the rules of procedure and evidence that apply to the ordinary courts in South Africa are not applicable in the Small Claims Court. Therefore, the rules that relate to the granting of an appeal from a judgment in an ordinary court do not apply to a Small Claims Court.

Proponents of a Right of Appeal

Proponents of a constitutional right of appeal could argue that section 34 of the Constitution implies a right of appeal. Proponents could argue that “fairness” in section 34 relates to the procedural elements of a hearing (and therefore implies a right to review), as well as the merits of a hearing (and thereby implies a right of appeal). It follows, proponents may argue, that it makes little sense for the Small Claims Court to recognise a right to review, which it does, but not a right of appeal. This is because both a procedural error and an error made on the merits of the case affect the fairness of the hearing.

Opponents of a Right of Appeal

Opponents of the constitutional right of appeal argue that if South Africa were to allow for an appeal of right, the very nature and purpose of a Small Claims Court would be compromised. The Small Claims Court was designed to reach lower-income citizens and to operate expeditiously, thereby save the court as well as the litigant time.

If South Africa were to allow an appeal of right, the Small Claims Court would no longer be able to act as expeditiously as intended, as it would be occupied more and more by judgments that have been appealed. The Small Claims Court would therefore not be able to focus its attention on allowing other citizens the right of access to courts, and the Small Claims Court would ultimately diminish into but another ordinary court. In so doing, the innovation behind the creation of such a court would be lost.

It is furthermore argued that it would be counter-intuitive to subject indigent litigants to a complicated appeal process. The Small Claims Court process should be conducted in a manner that seeks to accommodate ill-educated and unsophisticated litigants. This will only happen if the Small Claims Court process remains uncomplicated and straightforward.

Opponents argue that South African courts are already overburdened, if it allows for appeals from Small Claims Court judgments, it will only aggravate an already pressing backlog. Although proponents for a right of appeal argue that it is only fair that a right of appeal should be implied in section 34 of the Constitution, opponents seem to be convinced that a right of appeal will have the very opposite effect of fairness. If South Africa allows for a right of appeal, citizens will ultimately be denied access to the Small Claims Court because of the overburdened court system in South Africa. And therefore, those citizens will be unfairly denied their section 34 right of access to courts.

Conclusion

In conclusion, it appears that opponents and proponents of a constitutional right of appeal from a Small Claims Court judgment have equally convincing arguments for their respective causes. Only time will tell, however, whether proponents of a right of appeal from a Small Claims Court judgment have made their case strong enough to convince the Legislature.

Reference List:

• The Constitution of the Republic of South Africa, 1996
• Chrish v Commissioner- Small Claims Court- Butterworth and Others (774/2005) [2007] ZAECHC 114

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)