CHAPTER 47
SMALL CLAIMS COURTS ACT

Arrangement of Sections

   Section

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

PART II
ESTABLISHMENT OF SMALL CLAIMS COURTS

   3.   Establishment of small claims courts

   4.   Composition of a small claims court

   5.   Jurisdiction of small claims court

   5A.   Agreement to exclude jurisdiction of court to be of no effect

   6.   Appointment of arbitrators

   6A.   Incidental Jurisdiction

   7.   Qualifications for appointment as commissioner

   8.   Tenure of office

   9.   Conflict of interest

   10.   Appointment of small claims courts officers

   11.   Sittings

PART III
PROCEEDINGS IN A SMALL CLAIMS COURT

   12.   Proceedings to be in open court

   12A.   Individual may commence action

   13.   Parties to appear in person

   14.   Aim of small claims court when adjudicating

   15.   Language to be used

   16.   Court not to be bound by rules of evidence

   16A.   Institution of actions

   16B.   Prohibition of splitting of claim

   16C.   Withdrawal of claim

   16D.   Abandon of claim

PART IV
POWERS OF A SMALL CLAIMS COURT

   17.   General powers

   18.   Issue of summons

   19.   Counterclaims

   19A.    —

   20.   Powers relating to orders

   20A.   Review variation correction of judgement

   21.   Enforcement of judgement

   22.   Finality of awards

   22A.   Review of judgement by panel of Commissioners

   22B.   Powers of panel of commissioners

   23.   Costs

   24.   Writ of execution

PART V
OFFENCES RELATING TO ADMINISTRATION OF JUSTICE

   25.   Contempt of a small claims court

   26.   Obstruction of officers of small claims courts

   27.   Adjudication without authority

PART VI
MISCELLANEOUS

   28.   Funds of a small claims court

   29.   Administrative expenses

   30.   Immunity of commissioners and officers of small claims courts

   31.   Rule

   31A.   Code of conduct of commissioners

AN ACT

to provide for the establishment, constitution, jurisdiction, powers and procedure of small claims courts; and to provide for matters connected with or incidental to the foregoing.

[31st July, 1992]

Act 23 of 1992,

Act 13 of 1994,

Act 14 of 2008.

PART I
PRELIMINARY

 

1.   Short title

This Act may be cited as the Small Claims Courts Act.

 

2.   Interpretation

   (1) In this Act, unless the context otherwise requires—

[“arbitrator” rep by s 2(a) of Act 14 of 2008.]

[“award” rep by s 2(a) of Act of 2008.]

“Commission” means the Judicial Service Commission established under Article 109 of the Constitution;

"commissioner " means a person appointed by the Commission under section 6;

[Ins by s 2(b) of Act 14 of 2008.]

"'judgement" means, the decision made by the commissioner under section 20 in favour of either party to a claim; and

[Ins by s 2(b) of Act 14 of 2008.]

“legal practitioner” shall be construed accordingly;

“practitioner” shall have the meaning assigned to it by section 2 of the Legal Practitioners Act; and

"small claim " means, a liquidated claim that does not exceed such sum as the Chief Justice may, by statutory instrument, specify;

[Ins by s 2(b) of Act 14 of 2008.]

“small claims court” means a court established under section 3;

“small claims court officer” means an officer appointed under section 10;

“subordinate court” means a subordinate court constituted under the Subordinate Courts Act.

PART II
ESTABLISHMENT OF SMALL CLAIMS COURTS

 

3.   Establishment of small claims courts

There is hereby established small claims courts which shall be situated in such areas as the Chief Justice may consider necessary, having regard to the needs of a particular area.

 

4.   Composition of a small claims court

A Commissioner, sitting alone, shall constitute a small claims court.

[S 4 am by s 3 of Act 14 of 2008.]

 

5.   Jurisdiction of small claims court

   (1) The jurisdiction of a small claims court shall be limited to liquidated claims that do not exceed such sum as the Chief Justice may, by statutory instrument, specify.

   (2) Notwithstanding the generality of sub-section (1), a small claims court shall have jurisdiction in respect of the following causes of action-

      (a)   proceedings for the delivery of movable or immovable property whose value does not exceed the amount specified;

      (b   proceedings for debts that are due and payable;

      (c)   proceedings for rentals that are due and payable in respect of any premises;

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      (d)   proceedings for possession against the occupier of any premises where the right of occupation per month does not exceed the sum that the Chief Justice may, by statutory instrument, specify;

      (e)   proceedings relating to or arising out of a cheque or an acknowledgement of debt signed by a debtor; and

      (f)   counterclaims in respect of any proceedings mentioned in paragraphs (a), (b), (c),(d) or (e).

   (3) A claim for interest or costs shall not be taken into account in determining whether a claim falls within the jurisdiction of a small claims court.

   (4) A small claims court shall not have jurisdiction in respect of—

      (a)   a claim made under customary law;

      (b)   an action which is beyond the jurisdiction of the court, notwithstanding any agreement of the parties thereto;

      (c)   claims for divorce, custody or maintenance other than arrears in maintenance;

      (d)   cases involving the validity of a will;

      (e )   a matter in which an injunction is sought;

      (f)   a matter in which damages are sought for—

      (i)   defamation;

      (ii)   malicious prosecution or wrongful imprisonment or arrest; or

      (iii)   adultery or seduction;

      (g)   an action against a consular officer; or

      (h)   an action against a foreign State.

   (5) For the purposes of this section "consular officer" means any person appointed as consul general, consul, vice consul or consular agent by a foreign State and holding a valid exequatur or other authorisation to act in Zambia in that capacity.

[S 5 subs by s 4 of Act 14 of 2008.]

 

5A.   Agreement to exclude jurisdiction of court to be of no effect

Any provision in an agreement purporting to exclude the jurisdiction of a small claims court shall be of no effect.

[S 5A ins by s 5 of Act 14 of 2008.]

 

6.   Appointment of arbitrators

The Commission acting in the name of, and on behalf of, the President may appoint such number of persons as it considers necessary to be commissioners over small claims courts.

[S 6 am by s 6 of Act 14 of 2008.]

 

6A.   Incidental Jurisdiction

   (1) In an action in which the sum claimed does not exceed the jurisdiction of the court and is the balance of an account, the court may enquire into and hear evidence upon the whole account, even though that account relates to items and transactions exceeding the jurisdiction of the court.

   (2) Where the amount claimed or other relief sought does not exceed the jurisdiction of the court, the court shall not be deprived of that jurisdiction merely because it is necessary for the court, in order to arrive at a decision, to give a finding upon a matter beyond its jurisdiction.

   (3) The plaintiff may only claim for the relief of specific performance if such claim is accompanied by an alternative claim for payment of quantified damages that the plaintiff has suffered as a result of the defendant's failure to comply with the plaintiff’s obligations.

[S 6A ins by s 7 of Act 14 of 2008.]

 

7.   Qualifications for appointment as commissioner

A person shall not be appointed as a commissioner unless the person is a legal practitioner of not less than five years standing.

[S 7 subs by s 8 of Act 14 of 2008.]

 

8.   Tenure of office

A commissioner shall be appointed on a part-time basis and shall be paid such allowance as may be prescribed under this Act.

[S 8 am by s 9 of Act 14 of 2008.]

 

9.   Conflict of interest

A person shall not sit as a commissioner in any matter in which that person is a party, or in which that person has a direct or indirect pecuniary or personal interest.

[S 9 subs by s 10 of Act 14 of 2008.]

 

10.   Appointment of small claims courts officers

   (1) The Commission may appoint such number of officers as the Commission may consider necessary for the administration of this Act.

[S 10(1) subs by s 11 of Act 14 of 2008.]

   (2) The small claims courts officers shall exercise such powers and perform such duties as are conferred or imposed upon them by or under the provisions of this Act.

 

11.   Sittings

A small claims court shall sit at such times and places as may be necessary for the convenient and speedy despatch of business.

PART III
PROCEEDINGS IN A SMALL CLAIMS COURT

 

12.   Proceedings to be in open court

   (1) Proceedings in a small claims court shall be held in open court.

   (2) The proceedings shall be simple and informal.

 

12A.   Individual may commence action

   (1) An individual may institute an action in the court.

   (2) A body corporate or unincorporate body may become a party to an action as a defendant.

[S 12A ins by s 12 of Act 14 of 2008.]

 

13.   Parties to appear in person

   (1) No legal practitioner, other than a practitioner who is a party acting solely on his own behalf, may appear or act before a small claims court on behalf of any party to the proceedings.

   (2) Subject to sub-section (1), a small claims court may permit any person who is the spouse, guardian or other member of the household of a party in any proceedings before the court to appear or act for that party, if he satisfies the court that he has the authority of the party to so appear or act.

   (3) Subject to sub-section (1) a body corporate or an unincorporated body which is a party to the proceedings before a small claims court may be represented by any person or agent who is authorised by that body to appear on its behalf.

 

14.   Aim of small claims court when adjudicating

A small claims court shall, when adjudicating, aim at the reconciliation of the parties and it shall be the primary function of the court to do substantial justice between the parties.

 

15.   Language to be used

   (1) The business of a small claims court shall be conducted in English or in such other language as, in the opinion of the court, is convenient for the court and all the parties before it.

   (2) Where a party to the proceedings is not conversant with the language being used in the court, the party shall be allowed, or provided with, an interpreter.

   (3) Whenever any language other than English is used in any proceedings, the court shall cause to be made an English translation of the proceedings before it, but shall not maintain a case record of the proceedings.

 

16.   Court not to be bound by formal rules of evidence

   (1) The court shall, not be bound by rules of evidence, but shall apply the law and equity.

   (2) Evidence in a small claims courts shall be given on oath or affirmation.

 

16A.   Institution of actions

   (1) Prior to the commencement of an action in the Court, the plaintiff shall cause to be issued and served upon the defendant a letter of demand requiring the defendant, within fourteen days of the receipt of such letter, to admit or deny the claim.

   (2) A defendant shall, within fourteen days of receiving a letter of demand, reply to the letter, and shall indicate whether the defendant admits or denies the claim.

   (3) The Clerk of Court shall —

      (a)   upon receiving a reply from a defendant, or in default thereof upon receiving proof of service of a letter of demand from a plaintiff; and

      (b)   upon the expiration of fourteen days from the date of service;

cause a Notice of Claim to be issued to the defendant.

   (4) A Notice of Claim issued under sub-section (3) shall be served upon a defendant in accordance with rules 3 and 4 of the rules of court.

[S 16A ins by s 13 of Act 14 of 2008.]

 

16B.   Prohibition of splitting of claim

A claim exceeding the jurisdiction of a small claims court shall not be split with the object of recovering it in more than one action if the parties to those actions and the point at issue in those actions would be the same.

[S 16B ins by s 13 of Act 14 of 2008.]

 

16C.   Withdrawal of claim

   (1) A plaintiff may at any time before or during the hearing of the plaintiff's action, withdraw the plaintiff's claim with the leave of court, and on such conditions as the court may determine.

   (2) A plaintiff may, where proceedings are withdrawn under sub-section (1), institute a fresh action with the leave of court.

[S 16C ins by s 13 of Act 14 of 2008.]

 

16D.   Abandon of claim

A party may, in order to bring a claim or counter claim within the jurisdiction of a small claims court, abandon such part of the claim or counter claim as may be necessary.

[S 16D ins by s 13 of Act 14 of 2008.]

PART IV
POWERS OF A SMALL CLAIMS COURT

 

17.   General powers

A small claims court shall hear the facts of the case and receive any documents relating to the claim before it and do all such things as are authorised by this Act or, as are necessary for the exercise of its functions under this Act.

 

18.   Issue of summons

   (1) A small claims court may summon any person who is a defendant or witness in any matter before it.

   (2) The costs of serving or attempting to serve any summons issued by a small claims court relating to any matter shall be borne by the party at whose instance the summons was issued.

   (3) Where a defendant is summoned under sub-section (1), and has reasonable notice of the time and place at which he is required to attend, but fails to attend without any reasonable cause, the court may proceed to hear the matter and may enter judgement in default of appearance and defence if it is satisfied that the summons was properly served on him.

[S 18(3) am by s 15 of Act 14 of 2008.]

 

19.   Counterclaims

A counterclaim by the defendant may be made in a claim brought against him the claimant.

 

19A. —

   (1) The court may, at any time before judgement, grant leave to amend any notice of claim or other document in connection with a case on application by a party:

Provided that an amendment shall not be made where a party other than the party applying for the amendment may be prejudiced by the amendment.

   (2) An amendment may be made upon such conditions as the court may consider appropriate.

[S 19A ins by s 16 of Act 14 of 2008.]

 

20.   Powers relating to orders

   (1) A small claims court, upon concluding the hearing of a matter, may do the following-

      (a)   dismiss the claim;

      (b)   render a judgement with or without interest;

[S 20(1)(b) am by s 17(a) of Act 14 of 2008.]

      (c)   order the restitution of any property;

      (d)   order the specific performance of a contract, other than a contract of personal service, between the parties before the court; or

      (e)   make any other order which the justice of the matter requires;

   (2) A commissioner shall, in a judgement or dismissal, as the case may be, made by the commissioner under this section state the reasons upon which such judgement or dismissal is based and shall —

      (a)   in the case of a monetary judgement indicate—

      (i)   when the sum is due and payable;

      (ii)   that the money shall be paid directly to the judgement creditor;

      (iii)   the manner of payment, whether by installments or by one lump sum; and

      (iv)   the period of payment;

      (b)   in the case of restitution the period within which the restitution of property should be made; and

      (c)   in the case of specific performance of a contract, the period within which such performance should be done.

[S 20(2) subs by s 17(b) of Act 14 of 2008.]

 

20A.   Review variation correction of judgement

A court may, for good cause shown, on its own motion, and in the absence of any party—

      (a)   review or vary any judgement made by it;

      (b)   review or vary any judgement obtained by fraud or mistake; and

      (c)   correct any latent errors in any judgement.

[S 20A ins by s 18 of Act 14 of 2008.]

 

21.   Enforcement of judgement

The provisions of the High Court Act shall apply, with the necessary modifications, to the enforcement of judgement made under this Act.

[S 21 subs by s 19 of Act 14 of 2008.]

 

22.   Finality of awards

The awards of a small claims court shall be final, but appeal to the High Court shall be allowed on points of law only.

 

22A. Review of judgement by panel of Commissioners

   (1) A party may, where a court has adjudicated upon a matter, bring the proceedings on review before a panel of three commissioners within thirty days of the judgement, on any of the following grounds—

      (a)   absence of jurisdiction of the court;

      (b)   that the party was not given an opportunity to make representation to the court;

      (c)   corruption, fraud, malice or interest in the cause, on the part of the court; and

      (d)   gross irregularity with regard to the proceedings:

Provided that an application for review by a party shall not operate as a stay of execution.

   (2) Sub-section (1) shall not prejudice the right of an applicant to apply to the panel of commissioners for a stay of execution.

[S 22A ins by s 20 of Act 14 of 2008.]

 

22B. Powers of panel of commissioners

   (1) A panel of commissioners may, on review of a judgement, confirm or set aside a judgement upon satisfying itself that any of the grounds in section 22B have been proved.

   (2) A panel of commissioners shall, where it sets aside a judgement under sub-section (1), hear the matter de novo.

[S 22B ins by s 20 of Act 14 of 2008.]

 

23.   Costs

The court shall not order costs in any matter before it.

 

24. Writ of execution

   (1) A small claims court may issue a writ of execution against any person who has failed to pay a sum due and payable to a party in proceedings before it.

   (2) A writ of execution issued under this Act shall be in the prescribed form and shall be executed by the Sheriff's office.

   (3) All property whatsoever, real or personal, belonging to a party against whom execution is to be enforced, and whether held in the party's own name or by another person in trust for the party or on the party's own behalf is liable to attachment and sale in execution of the judgement:

Provided that this sub-section shall not apply to—

      (a)   the wearing apparel and bedding of a party against whom execution is to be enforced or the party's family; and

      (b)   the tools and implements of trade of a party against whom execution is to be enforced.

   (4) A warrant of distress shall not apply to property which is claimed by a third party, or in respect of which any third party has an interest.

   (5) Where a writ of execution issued under this section is to be executed at a place more than fifty kilometers from the place where the small claims court sat, that court may forward the writ by post, by hand or otherwise, to the sheriff’s office within whose territorial jurisdiction it is to be executed.

   (6) Where there is no property to be seized the Court may, at any time, on application by a party issue a summons to the judgement debtor calling on the judgement debtor to appear and be examined respecting the judgement debtor's ability to satisfy the judgement, as to the existence and value of the judgement debtor's property and of any debts owing to the judgement debtor, and the judgement debtor may be examined as to the same upon oath.

PART V
OFFENCES RELATING TO ADMINISTRATION OF JUSTICE

 

25.   Contempt of a small claims court

Any person who is subject to the jurisdiction of a small claims court and who, without reasonable excuse—

      (a)   threatens, intimidates or insults that court while sitting in that capacity;

[S 25(a) rep by s 22(a), s 25(b) renumbered as 25(a) by s 22(c) of Act 14 of 2008.]

      (b)   intentionally interrupts the proceedings of that court or otherwise behaves in a disorderly manner before that court;

[S 25(c) renumbered as 25(b) by s 22(c) of Act 14 of 2008.]

      (c)   deliberately omits to deliver up any document or thing in accordance with an order of the court;

[S 25(d) renumbered as 25(c) by s 22(c) of Act 14 of 2008.]

      (d)   refuses to answer any question asked by the court;

[S 25(e) renumbered as 25(d) by s 22(c) of Act 14 of 2008.]

      (e)   while any proceedings are in progress in the court, makes use of any speech or writing misrepresenting any proceedings of that court in such a way as to prejudice the commissioner in favour of, or against, any party to those proceedings;

[S 25(f) am by s 22(b), s 25(f) renumbered as 25(e) by s 22(c) of Act 14 of 2008.]

      (f)   willfully disobeys or fails to comply with any other lawful order of that court;

[S 25(h) renumbered as 25(f) by s 22(c) of Act 14 of 2008.]

      (g)   …

[S 25(g) rep by s 22(a) of Act 14 of 2008.]

shall be guilty of an offence and shall be liable, upon conviction to a fine not exceeding four hundred penalty units or to a term of imprisonment not exceeding six months, or to both.

[S 25 am by Act 13 of 1994.]

 

26.   Obstruction of officers of small claims courts

Any person who obstructs, any officer of a small claims court or other person executing a writ of execution or an order issued or made in the exercise of the powers conferred by this Act, shall be guilty of an offence and shall be liable upon conviction to a fine not exceeding four hundred penalty units or to a term of imprisonment not exceeding six months, or to both.

[S 26 am by Act 13 of 1994, s 23 of Act 14 of 2008.]

 

27.   Adjudication without authority

Any person who, without lawful authority, purports to exercise judicial functions as an arbitrator or, falsely holds himself out to be a commissioner, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding eight hundred penalty units or to a term of imprisonment not exceeding twelve months, or to both.

[S 27 am by Act 13 of 1994, s 24 of Act 14 of 2008.]

PART VI
MISCELLANEOUS

 

28.   Funds of a small claims court

The following money shall be paid into, or paid out of a revolving fund created for that purpose under section 8 of the Finance (Control and Management) Act—

      (a)   prescribed fees paid to a small claims court in respect of proceedings before it;

      (b)   money paid into a small claims court in the form of awards ordered to be paid to the other party; and

      (c)   such other funds as the Permanent Secretary responsible for finance may determine to be paid into, or out of, the funds of a small claims court.

 

29.   Administrative expenses

   (1) The administrative expenses of a small claims court shall be a charge on the general revenues of the Republic.

   (2) A plaintiff shall pay such fee as may be prescribed when lodging the claim.

[S 29 am by s 25 of Act 14 of 2008.]

 

30.   Immunity of commissioners and officers of small claims courts

No action or other proceedings shall lie or be instituted against a commissioner or any other officer of a small claims court for, or in respect of, any act or thing done or omitted to be done in good faith in the exercise or purported exercise of the functions of the officer under this Act.

[S 30 subs by s 25 of Act 14 of 2008.]

 

31.   Rules

The Chief Justice may, by statutory instrument, make rules for the better carrying out of the provisions of this Act, and, in particular, but without prejudice to the generality of such power, such rules may—

      (a)   set out the jurisdiction of a small claims court;

[S 31(a) am by s 27 of Act 14 of 2008.]

      (b)   prescribe the fees to be charged under this Act;

      (c)   prescribe forms;

      (d)   prescribe the duties of officers of small claims courts;

      (e)   prescribe allowances and expenses to be paid to the arbitrator; and

      (f)   prescribe anything which is authorised or required to be prescribed under this Act.

 

31A.   Code of conduct of commissioners

   (1) The conduct of commissioners shall be governed by the Judicial Code of Conduct Act, 1999.

   (2) Notwithstanding the provisions of sub-section (1), sections 16,17 and 18 of the Judicial Code of Conduct Act, 1999, shall not apply to the conduct of commissioners.

[S 31A ins by s 28 of Act 14 of 2008.]

 
 

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