the small claims court in zambia- a legal guide compilation

8/13/2019 The Small Claims Court in Zambia- A Legal Guide Compilation

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The Small Claims Court in Zambia: A Legal Guide Compilation

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The Small Claims Court in ZambiaA Legal Guide Compilation

2013 Adv. Justin Sipho Chitengi1DAAD Scholar; PhD Candidate- Law PolicyLLMGermany/South Africa); LLB Merit Zambia); BSc

ForestryZambia); PGC Public Policy(Zimbabwe/South Africa); CPD ConveyancingZambia); PGCLPQEZambia); CETP EntrepreneurshipNorth Africa); AHCZH igh/Supreme Court)

1 Formerly the Founding Assistant Dean of the Law School- University of Lusaka, Adv. Chitengi is a

seasoned teacher of law and renowned researcher as well as publisher. He has lectured both in public and

private universities in Zambia and abroad including the University of Zambia and the Copperbelt

University among others. He also served as Postgraduate Researcher on Financial/Economic Crimes Law at

the German-South African Centre of Excellence, collaboration between Humboldt Universitt zu Berlin &

University of the Western Cape. Chitengi was appointed by the then Republican Vice President & Minister

of Justice in 2011 to serve as a Council Member of the Zambia Institute for Advanced Legal Education

(ZIALE) - the only Bar School in Zambia. He is currently in the employ of John Snow Inc. Ltd (SHARe II

Project), a USAID-funded project where he practices law as Legal and Policy Manager. Adv. Chitengi is arecipient of many prestigious scholarships and fellowships both locally and internationally in recognition of

his contribution to the legal fraternity.


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IntroductionThe Small Claims Court is a Constitutional creation as per the Constitution

of Zambia2 provided for and established in 2008 through the Small Claims

Court Act.3 Its main objective is premised on ensuring justice for poor

people...4by adjudicating on small claims without following, stricto sensu,

the rigour and niceties of adjudication that would otherwise dismiss such

claims for being frivolous and petty.

On 18 May 2009, the Small Claims Court became operational with the then

Chief Justice Ernest Sakala, swearing in twelve Adjudicators as

commissioners for the Small Claims Court. Among those sworn were former

Vice President George Kundas wife, Ireen, and Law Association of Zambia

(LAZ) President Steven Lungu.

Chief Justice Sakala implored the commissioners to read and acquaint

themselves with the Judicial Code of Conduct Act as he expressed

confidence that the commissioners would do well, especially that they

possess the required qualifications and expertise for an Adjudicator of the

Small Claims Court. The Chief justice reminded the commissioners to abide

by the etiquette of a judicial officer in terms of the Judicial Code of Conduct

Act5as required by section 31A of the Small Claims Court Act.6

Chief Justice Sakala said the Small Claims Courts were under a pilot project

in Lusaka and Ndola but would be opened in other parts of the country later.

Others sworn-in are LAZ Secretary Margaret Chalwe, former LAZ President

William Mweemba, Annie Mwanza, James Banda, Nicole Phiri, Newton

Mubonda, James Shonga Junior, Emmanuel Mwansa and Sydney Watae.

2Cap 1 of the laws of Zambia3Cap 47 of the laws of Zambia4Per the LAZ President, http://lusaka-star.com/news/take-advantage-small-claims-court-chibesakunda

Retrieved 1 October 2012 at 22:13hrs5No. 13 of 19996Op cit
http://lusaka-star.com/news/take-advantage-small-claims-court-chibesakundahttp://lusaka-star.com/news/take-advantage-small-claims-court-chibesakundahttp://lusaka-star.com/news/take-advantage-small-claims-court-chibesakunda


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On 11 September 2011, the Judiciary issued website-based guidelines in form

of FAQ on matters pertinent to the operation of the Small Claims Court as

follows:7

Who may institute a claim?Anyone may institute an action in this court except registered entities such

as companies, corporation or associations. Note that a person under the age

of 21 must be assisted by his/her parents or legal guardians.

Against whom may a claim be instituted?A claim may lie against anyone, including companies, corporations or

municipalities or other entities.

What matters are excluded from the jurisdiction of the court? Claims that exceed the limit of K 20,000,000; Claims for damages in respect of defamation, malicious, prosecution,

wrongful imprisonment, wrongful arrest, adultery and seduction;

Claims concerning the validity of a will; Claims concerning the status of a person in respect of his medical

capacity;

Claims made under customer law; Claims in which specific performance is sought without an alternative

claim for payment of damages; and

Claims against foreign states and consular officers.Are you compelled to institute your case in the small claims court?No, you may choose whether you want to institute the claim in the small

claims court or any other competent court or any other court such as the

Subordinate court.

Legal representation and assistance in the preparation of your claimRepresentation by an Advocate is not allowed. You may however, at your

own cost obtain prior advice from an Advocate. The clerk of court will assist

you free of charge to prepare your claims.

7www.judiciary.gov.zm/index.php/court-structure/small-claims-courtsRetrieved 3 January 2012 at

11:06hrs
http://www.judiciary.gov.zm/index.php/court-structure/small-claims-courtshttp://www.judiciary.gov.zm/index.php/court-structure/small-claims-courtshttp://www.judiciary.gov.zm/index.php/court-structure/small-claims-courtshttp://www.judiciary.gov.zm/index.php/court-structure/small-claims-courts


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InterpretationAny Zambian language may be used in the court. Arrangements with an

interpreter must be made with the court clerk beforehand if evidence is to

be given in any language other than English.

How do I commerce an action in a small claims court?An action in the small claims court will be instituted by issuing a letter of

demand first. The letter of demand will be addressed to the defendant setting

out your claim. This letter of demand will be served you upon the defendant

and an expiry date of fourteen (14) days if he/she does not respond

favourably; you will then be entitled to issue a notice of claim. The clerk of

court will assist you to prepare both the letter of demand and notice of claim

and then advise you how best to effect service.

What to take to the clerk of court?You must produce any document or other proof upon which your claim is

based or that has regard thereto such as a contract, a letter or any witting.

Equally, the defendant's full name and address (home and business address, if

available) must be furnished to the court.

What are the duties of the clerk of court?The clerk of court will inform you of the date and time for the hearing of thecase. He /she will issue the notice of claim and hand it to you for service.

What do you do with the notice of claim?You should serve the notice of claim on the defendant in person. Try to get

an acknowledgement of receipt by having the defendant sign and date a copy

of the notice of claim.

ORYou can request the clerk of court to instruct the sheriff to effect the service

on your behalf at a fee.

What do you do then?Where the sheriff has undertaken the service, you must check with the

court if the sheriff has filed a certificate of service with the court. After that,

obtain a hearing date from the court. Keep the contract, letter, document or

other proof upon which your claim is based at hand. Inform your witness of


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the date and time the case will be heard and arrange for them to be present

in court at the appointed date and time.

What do you do when you receive a notice of a claim?You should immediately see the clerk of court for assistance in responding toit. The clerk of court will assist you to complete the notice of defence or

admission of claim. If you have a counterclaim, he/she will assist you in

completing the notice in respect of your counterclaim. He/she will examine

the documents you are intends relying upon for your defence or

counterclaim and advise you on which ones to come with to court. He / she

will advise you of the hearing date.

Possible steps by the defendant after receipt of the notice of claimHe/she may comply with the plaintiff's claim by offering to the settle the

claim. He/she may deliver a written statement, containing the nature of his

defence, and/or his/her counterclaim and particulars of the grounds on

which it is based, to the clerk of court and send a copy thereof the plaintiffs

What do you do if the defendant has satisfied your claim in the meantime?Supply them with a written receipt. Thereafter, inform the clerk of court

immediately that your claim has been satisfied and you no longer wish toproceed with the case.

What do you do on the appointed date and time of hearing?You must appear at court in person at the appointed. Ensure that you have

with you all the documents upon which your claim is based. Ensure that all

your witnesses are present. Also ensure that you have written proof that the

notice of claim was served on the opposing party.

Who will preside over the court?The small claims court will be presided over by commissioners. These

persons are qualified lawyers and have practiced law for a period of not less

than five years.

The hearingThe court proceedings are informal and simple. No Advocate may appear on

your behalf. You will present you case in court yourself after the

commissioner of court has requested you to state your case. You should statefacts as concisely as possible. Answer the questions of the commissioner and


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submit your supporting documents. No cross examination between the

parties is allowed. With the commissioner's permission you may however,

put a few questions to the defendant and vice-versa. Listen attentively to the

defendant's explanation and once he has finished talking, bring the attention

of the commissioner to any facts which in your opinion he has not presented

correctly. After the commissioner has heard you, the defendant and any

witness that may be present, he/she will pass judgment.

ReviewNo appeal may be filed against a judgment or order of the court. The

judgment may be referred to a panel of three (3) commissioners for a review

if good cause is shown.

Steps following judgmentIn case judgment is given against youThe judgment of the court is final, unless some ground for review exists.

Settle any order for costs that the court might make against you. The only

possible costs can be those that the opposing part may have incurred in

respect of fees for the sheriff and filing documents.

In case Judgment is given in your favourThe defendant will pay you the amount of the judgment within the period of

payment stipulated in judgment if he has the money available. Give him/her

a receipt for the amount immediately. In case the defendant cannot comply

with the judgment forthwith the court ability will investigate his/her

financial position and his/her to settle the judgment debt and costs and make

an order that he pays by monthly instalments.

If the judgment debtor fails to comply with the judgment or order of thecourt and you want to enforce the judgment or order concerned, you will be

at liberty to file a writ of execution instructing the sheriff to seize his

property.

==============================For further details contact Clerks of the Small Claims Court on:P.O. Box 50067 Tel: 211 251330 LusakaP.O. Box 70930 Tel: 212 613045 N dolaOREmail Chitengi:[email protected]
mailto:[email protected]:[email protected]:[email protected]:[email protected]

the small claims court in zambia- a legal guide compilation

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