Quick answer
Ask the lawyer to test the claim before recommending a collection step. The first questions should establish the correct creditor and debtor, the contract, proof of performance, the reconciled balance, the debtor's defence and the prescription position. Then ask about forum, procedure, cost, settlement and whether a judgment is likely to produce actual recovery.
How to use this guide
Avoid opening with “How quickly can you make them pay?” A responsible lawyer can explain legal options and risk, but cannot guarantee payment, default judgment, costs or enforcement. A useful consultation ends with a defined first mandate, documents still needed and a decision point for further spending.
Ask who can sue and who should be sued
Request confirmation that the claimant owns the debt and that the proposed defendant is the contracting legal entity. If a trading name, corporate group or cession is involved, ask what proves standing. Where a director or third party signed, ask whether the document creates a valid suretyship or other personal liability.
Find out whether the customer representative had authority and whether any entity change affects the claim. A misidentified party can make an otherwise strong invoice case expensive to correct.
Test the merits and the likely defence
Ask which evidence proves agreement on scope, price and payment terms. Have the lawyer identify the record that demonstrates delivery or completed services rather than relying on the invoice alone. Invite an assessment of complaints, returns, remedial work, set-off and counterclaim risk.
Electronic messages can support contract and performance, but ask how authenticity, completeness and integrity will be shown. The Electronic Communications and Transactions Act does not turn every screenshot into conclusive proof. Clarify whether a witness, expert or original system record may be needed.
Put prescription and notices on the agenda
Ask what prescription period applies, when each debt became due and whether an acknowledgement or qualifying service interrupted the running. Many ordinary debts use a residual three-year period, yet exceptions and delayed-completion rules mean the invoice date is not a universal answer. Confirm which facts remain uncertain and which earliest date should guide action.
If the matter may include a claim for payment of damages against a qualifying organ of state, ask whether it falls within Act 40 of 2002's defined “debt”, whether the separate six-month notice framework applies and whether condonation is relevant. Public-sector customer status alone is not enough. Do not let a special notice discussion obscure the ordinary prescription analysis. If the lawyer mentions National Credit Act steps, ask why the trade arrangement falls within that Act rather than assuming all deferred payment is regulated credit.
Compare forum and remedy choices
Ask why the proposed court has territorial, monetary and claim-based jurisdiction under current rules. A company cannot institute a Small Claims Court case, although a natural person operating as a sole proprietor raises a different question. Magistrates' court and High Court procedure, cost and timing should be explained without reducing the choice to the invoice amount.
Discuss whether a demand, without-prejudice settlement proposal, summons, security arrangement or another remedy fits the evidence. Treat liquidation as a specialist remedy, not routine pressure where the debt is reasonably disputed. Ask how a settlement will address interest, costs, default, admissions, release and existing proceedings.
Understand money claimed and money recoverable
Have the lawyer check the principal reconciliation and the basis for interest, collection charges and legal costs. The Prescribed Rate of Interest Act may matter where no other governing rate exists, but percentages and calculations are time-sensitive and context-dependent. Request a schedule that separates amounts claimed from amounts likely to be awarded.
Then discuss solvency and enforcement. A valid claim against an empty company may not justify full litigation. Ask what lawful asset, judgment and credit information can be obtained, what enforcement would cost and which recovery assumptions are still speculative.
Define the legal mandate and fee controls
Request a written first stage, such as a merits opinion, demand or settlement review. Confirm the responsible practitioner, update frequency and approval threshold for extra work. Ask whether counsel, sheriff, tracing, expert reports, travel, tax and enforcement are excluded from the estimate.
Use decision gates between demand, issue of proceedings, defended litigation and enforcement. The business should know what evidence or response must exist before moving to the next expense.
Consultation questions
- Which legal person owns the claim, and which defendant is liable?
- What documents prove authority, agreement and performance?
- How strong is the customer's defence, counterclaim or set-off?
- When did the debt become due, and what may have affected prescription?
- Does any contractual or statutory notice remain outstanding?
- Which forum and procedure fit under the current rules?
- What interest, fees and costs can lawfully be claimed?
- What is the realistic recovery after solvency and enforcement risk?
- Which work is included in the first fee and what triggers more cost?
- What settlement terms would protect the business if payments fail again?
Records to send before asking for an opinion
- Contract, accepted quotes, orders and changes to scope or price
- Invoices, credits, payments and the reconciled account
- Delivery or service-performance proof and customer complaints
- Complete communications, acknowledgements and settlement proposals
- Party registrations, suretyship, security and any cession
- Due-date, demand, prescription and litigation chronology
Important limitation
These are preparation questions, not advice on whether to sue. A lawyer must review the actual documents, debtor status, limitation history and current procedural rules. Litigation cannot guarantee payment, and each additional stage should be authorised against updated evidence and recovery prospects.
FAQs
What should the lawyer assess first?
Ask for liability, proof, prescription, party and forum analysis before choosing the collection remedy.
Why ask about enforcement before suing?
A valid judgment may still be difficult or uneconomic to recover if the debtor lacks reachable assets.
Should the fee quote cover every possible stage?
Prefer staged written scope with clear inclusions, exclusions and approval points for more work.
Can the lawyer promise how long recovery will take?
No. Disputes, court process, settlement and enforcement create uncertainty that should be explained rather than guaranteed.
Related Lexuno paths
Related articles
Source notes
- Prescription Act 68 of 1969
- Magistrates’ Courts Act 32 of 1944
- Rules Regulating the Conduct of the Proceedings of the Magistrates’ Courts of South Africa
- Uniform Rules of Court
- Rules Board Government Gazette Notices
- Superior Courts Act 10 of 2013
- Electronic Communications and Transactions Act 25 of 2002
- Prescribed Rate of Interest Act 55 of 1975
- Small Claims Courts Act 61 of 1984
- Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002
- National Credit Act 34 of 2005
- Companies Act 71 of 2008
- General Law Amendment Act 50 of 1956
- Freshvest Investments (Pty) Ltd v Marabeng (Pty) Ltd (1030/2015) [2016] ZASCA 168
Legal note
This article is general legal information for South African readers. It is not legal advice. Speak to a qualified legal professional about your specific facts before taking action.