What is Form 5 (J994)?

It is the affidavit the Small Claims Court rules allow for proving that a letter of demand was delivered. Rule 7(2) says the plaintiff must prove delivery by means of an affidavit or a registered post receipt, and rule 7(3) says the plaintiff may use Form 5 for the affidavit.

Do I need Form 5 if I sent the letter by registered post?

No. For registered post, your proof is the registered post receipt. Keep the receipt and take it to the clerk. Form 5 is for a letter you delivered by hand.

Can I deliver the letter of demand by email or WhatsApp?

No. The Act allows delivery of the demand only by hand or by registered post, and the court rules do not count email as delivery for this purpose. Form 5 cannot turn an emailed letter into a delivered one.

Who completes Form 5?

The person who delivered the letter. Section 29(1)(a) of the Act speaks of a written demand delivered to the defendant by the plaintiff, so that is normally you. A Commissioner of Oaths completes the certificate on page 2.

Do I sign it before I go to the Commissioner of Oaths?

No. Print it, take it with you, and sign it in front of the Commissioner of Oaths. It is sensible to bring your ID or passport too: the form carries its number and the commissioner may ask to see it. The form's certificate says it was signed before the commissioner, so a form signed beforehand does not match what the commissioner has to certify.

Can I sign Form 5 on screen?

No. It is an affidavit, a written statement made under oath or affirmation before a Commissioner of Oaths, so you sign the printed copy in front of the commissioner.

What does the Commissioner of Oaths fill in?

The certificate on page 2: the place and date, their signature, and their name, capacity and address. We leave all of that blank.

What do I put under "Other" in paragraph 1.2.2?

Use it if you did not give the letter to the person yourself but still delivered it by hand. Explain what happened, for example who you handed it to and where. We print "Paragraph 1.2.2 applies:" before your words so it is clear which paragraph you are using. Do not use it for email or any other way that is not by hand or by registered post.

Which of 1.2.1 and 1.2.2 do I cross out?

Paragraph 1.2 offers two ways of delivering the letter, 1.2.1 (giving it personally to the person in 1.1) or 1.2.2 (another way, explained on the lines below). The form has no box to tick, so we print your choice on the 1.2.2 lines: a fixed sentence if you gave it personally, or your explanation if you did not. Practical advice, not a rule in the form: in front of the commissioner, before you sign, cross out in ink the option (1.2.1 or 1.2.2) that does not apply and initial next to it, so the page does not leave both standing.

What if the person who took the letter was not the one I am claiming from?

Write the name of the person who actually received it in paragraph 1.1. The form asks for the name of the person who received the letter and the place where you delivered it.

What happens if I put something false in it?

A person who makes a false statement in an affidavit, knowing it to be false, commits an offence and can be punished as for perjury (Justices of the Peace and Commissioners of Oaths Act 16 of 1963, section 9). Give the date, time and details exactly as they happened.

Where does Form 5 go once it is sworn?

Keep it with your copy of the letter of demand. When the 14 days from the other side receiving the letter have passed and the money is unpaid, take both to the clerk of the Small Claims Court with your summons (Form 1, J141). The clerk issues the summons on production of the prescribed proof that the demand was delivered.

Affidavit of Delivery: Letter of Demand (Form 5, J994)

Department of Justice and Constitutional Development

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