Unpaid freelance services? Here’s how you can get your money
When all else fails a court can help
Many people in South Africa are offering their services on a freelance basis amid stubbornly high unemployment levels.
While freelance work has many benefits, including being your own boss and managing your own time, the hustle of ensuring that all invoices are paid can be frustrating.
After producing quality work for a client, it takes days, weeks and sometimes months before you’re compensated for your time, effort, expertise and the rendered service.
Reaching a client through email and phone calls proves near impossible, and if you do get a response, it’s always one of many typical excuses: the invoice went missing, our finance person is on sick leave, we will pay by Friday/month-end. Eventually you realise you’re not going to get paid but you need the money to pay the bills and to keep your business running.
So how can you prevent clients from not paying for your services?
To avoid a dispute, make sure you have a signed contract before you start any freelance job. Depending on your line of work, ask for a deposit before you start any work. Always produce quality work and don’t take on any job you can’t do.
When there is an issue with an unpaid invoice, try to find out what it is. Send follow-up emails or phone, even recording the calls. If your client's business is not doing well, suggest a payment plan.
If all else fails, you can turn to the Small Claims Court (SCC).
The SCC deals with a variety of cases and according to the Commissioner of Small Claims Court for Kwazulu-Natal, Charmaine Schwenn, each case involving unpaid freelancers is different, ranging from the case prevalence, how each case is handled to the final decision by the Commissioner.
You don’t need a lawyer to represent you at the SCC and your claim must be for less than R15,000.
How to make a claim in the SCC
Generally, you must approach the SCC in the area where the person being sued (the defendant) lives, works or conduct business.
You need to send a letter of demand (LoD) to the defendant. The SCC clerk can assist you with drafting the letter, or you can skip the queue and print the LoD template from the SCC website. You can either deliver the LoD personally, if necessary ask the police to accompany you, or pay the sheriff of the court a fee to deliver the letter for you. You can send the letter of demand by registered mail, but this process rather takes long, making hand delivery the better option.
It is crucial that your non-paying client gives you proof of receipt of the LoD, so be sure to get a signed copy.
If the defendant won’t accept the letter of demand or accepts it but declines to sign the copy, you must sign a sworn affidavit stating what happened in the presence of a commissioner of oaths at any police station. A template for this affidavit is also available on the SCC website.
Your defaulting client then has up to 14 days to pay the outstanding amount and failing to do so, you can go back to the SCC to apply for a summons. The summons is delivered by the sheriff of the court 10 days before the the client must meet you in court. You will be charged a small fee for the delivery of the summons.
At the hearing a commissioner (an experienced lawyer) will listen to both parties before delivering a judgment.
Winning the case
For the best chances of winning your case, make sure you present a strong, valid case with all the supporting documents such as contracts, unpaid invoices and proof that you tried all avenues to ensure payment. Keep the details simple and if you can get some legal advice do so. Remember, though, you can’t have a lawyer representing you in the SCC.
If you win your case, the defendant must pay you the claimed amount within 10 days of the commissioner’s decision or the commissioner can institute a monthly instalment plan for the defendant.
If the defendant does not pay within the given timeframe, you can go back to the SCC to apply for a writ of execution – this allows the sheriff to attach and sell some of the defendant's property to pay your claim.
The commissioner’s decision is final and cannot be appealed. It can only be reviewed if evidence is produced to show that the commissioner was biased or corrupt, the summons was fraudulent and/or the defendant could not attend the court hearing because of hospital admission.
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