Article Four (25th – 29th July 2011)
Judiciary Reforms – Small Claims Part 4
Step Three: Paying the Court’s Modest Fees
The Rules governing the prosecution of small claims (namely, claims whose monetary value is
M10,000 or less), are contained in Legal Notice No. 30 of 2011. The Rules were developed under
the Civil Legal Reform Project, supported by the Millennium Challenge Account – Lesotho. They
establish the process and the steps through which any person who has a small claim may bring it
to the appropriate Court of law (the Magistrate’s Court), and pursue it through the Court system.
In this Part of the series of articles on Small Claims, we examine another set of steps established
under the Rules.
However, before launching into those substantive steps, it is important to re-emphasize, as has
been done before, one or two fundamental aspects of the Small Claims Procedure. First and
foremost, the Procedure aims at introducing simplicity of process. The Rules weed out the
complexity of the traditional litigation process. Most notably, the Small Claims Procedure
excludes the complexity of drafting and filing complicated legal documents to commence and
proceed with a claim in the court.
Instead, simple ordinary forms have been designed and provided in the Rules for use by the
Claimant and the Defendant. Similarly, the Rules have avoided the exorbitant expenses involved
in ordinary litigation. Instead, an inexpensive structure of Court fees has been put in place to
match the value of small claims. In like vein, it is not necessary for the Parties, in a small claims
dispute, to be represented by professional lawyers and advocates. Instead, the small claimants
and defendants will be assisted by the Clerk of Court to fill in and file the necessary forms – and,
then, to appear in person before the Presiding Officer to represent themselves. This is a critical
step in minimizing costs (i.e., expenses) of litigating and defending a small claim; as well as
avoiding technical complexities in the Courtroom. This is possible because the Court will not
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resort to technical rules of the law of evidence and procedure. Instead, the Court will rely on a
flexible exercise of its own discretion – namely, rules of ordinary, everyday logic and fairness. In
practical terms, most of the process will largely take on the elements of mediation, reconciliation
and restorative justice – with the Court doing all in its power to bring the Parties to a mutual
understanding and settlement of their case.
During the two steps when the Plaintiff initiates the claim (by serving a summons on the
Defendant); and the Defendant makes the appropriate response to the claim, both parties pay
various fees to the Court – for filing their respective Forms and documents. However, strictly
consistent with the principle of minimizing the expenses of the Parties, the fees stipulated for
small claims are extremely modest. They are only one half of the ordinary fees. For example,
where the opening of a file using the ordinary civil procedure at the Magistrates’ Court is M30, it
will be M15 under the Small Claims Procedure.
Even more importantly, the small claims fees can be set aside (waived) in appropriate
circumstances – namely, for reasons of a party’s financial hardship. For such a waiver, the party
needs to make an application to the Court. The application for waiver is made, not through a
complicated set of legal documentation or procedure; but, rather, in a simple Form (Form C)
made available at the Magistrate’s Court. As usual, the Court will be ready to assist the Party in
accessing, completing and processing the waiver Form.
Fixing a Date and Calling Witnesses
When processing of all the Forms, including the form for waiver of fees where applicable, has
been completed, the Clerk of Court fixes the date for hearing the claim. For this, the Clerk gives
both Parties sufficient time within which to prepare for and to attend the hearing in the Court.
On that appointed day, both Parties should attend the Court. If only one Party attends, the
Court may pass a default judgment (that is, without trial) against the Party that does not show up
or respond to the summons. To ensure attendance, the Clerk of the Court will have issued a
summons to the Defendant informing them of the claim and the court date; and may also call on
and require the attendance of witnesses – using the appropriate Form – the witness Subpoena
form. These (summons and subpoena) will be served by a Court Messenger – for which a small
fee is paid by the Party who requests the presence of the witnesses through subpoena. Each
Party may call witnesses to support his/her side of the case. At that point, the hearing of the
case is ready to take off.
For further information, please contact the Magistrates’ Court
P.O. Box 354, Maseru 100, Lesotho
Tel: +266 22 32 11 51
(Next week, other steps in the process will be reviewed)