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Questions and Answers
Which of the following is NOT a procedure to be followed when appealing to the Supreme Court of Appeal?
Which of the following is NOT a procedure to be followed when appealing to the Supreme Court of Appeal?
What power does a court of appeal have regarding the appeal process?
What power does a court of appeal have regarding the appeal process?
If an appellant succeeds in altering a decision in their favor, what is the general rule regarding costs of the appeal?
If an appellant succeeds in altering a decision in their favor, what is the general rule regarding costs of the appeal?
Which of the following is a step to be taken when appealing to a full court of a division of the High Court?
Which of the following is a step to be taken when appealing to a full court of a division of the High Court?
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What is the purpose of 'heads of argument' in the appeals process?
What is the purpose of 'heads of argument' in the appeals process?
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What is the primary basis for an appeal in civil proceedings?
What is the primary basis for an appeal in civil proceedings?
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Which of the following scenarios would likely qualify for a review rather than an appeal?
Which of the following scenarios would likely qualify for a review rather than an appeal?
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Which court has the jurisdiction for review proceedings regarding a Magistrates' Court?
Which court has the jurisdiction for review proceedings regarding a Magistrates' Court?
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What is a valid ground for review proceedings against a Magistrates' Court?
What is a valid ground for review proceedings against a Magistrates' Court?
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In what situation would a party typically file an appeal?
In what situation would a party typically file an appeal?
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Which of the following is NOT a characteristic of an appeal?
Which of the following is NOT a characteristic of an appeal?
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What must an irregularity constitute to be grounds for review under S22 (1) of the Superior Courts Act?
What must an irregularity constitute to be grounds for review under S22 (1) of the Superior Courts Act?
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Which of the following is NOT a valid reason for filing a review?
Which of the following is NOT a valid reason for filing a review?
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What constitutes a gross irregularity by a court?
What constitutes a gross irregularity by a court?
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Which of the following is NOT a condition for an appealable decision?
Which of the following is NOT a condition for an appealable decision?
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What is required when delivering a notice of motion?
What is required when delivering a notice of motion?
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Which of the following is a requirement for a decision to be appealable?
Which of the following is a requirement for a decision to be appealable?
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In what situation can a magistrate make a decision that leads to a review?
In what situation can a magistrate make a decision that leads to a review?
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Which action must a magistrate take after receiving a notice of motion?
Which action must a magistrate take after receiving a notice of motion?
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What defines a non-appealable decision?
What defines a non-appealable decision?
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What must be included in the affidavit accompanying the application for review?
What must be included in the affidavit accompanying the application for review?
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When must the appellant file the copies of the record with the registrar?
When must the appellant file the copies of the record with the registrar?
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What is the minimum number of court days that must pass between the registrar's receipt of the hearing application and the appeal hearing date?
What is the minimum number of court days that must pass between the registrar's receipt of the hearing application and the appeal hearing date?
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What must the appellant provide at least 15 court days before the appeal is heard?
What must the appellant provide at least 15 court days before the appeal is heard?
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What is the role of the registrar after receiving the hearing application?
What is the role of the registrar after receiving the hearing application?
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What happens if the parties consent in writing to an earlier date for the appeal?
What happens if the parties consent in writing to an earlier date for the appeal?
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Which of the following is NOT a power of the court of appeal, according to the content?
Which of the following is NOT a power of the court of appeal, according to the content?
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How many additional copies of the heads of argument must be lodged with the registrar?
How many additional copies of the heads of argument must be lodged with the registrar?
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What is required from the respondent not less than 10 court days before the appeal is heard?
What is required from the respondent not less than 10 court days before the appeal is heard?
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In which situation would no appeal lie from a judgment concerning an application for interim custody of a child?
In which situation would no appeal lie from a judgment concerning an application for interim custody of a child?
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What is the result of an appeal from an order granting interim maintenance?
What is the result of an appeal from an order granting interim maintenance?
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What criterion must be met for leave to appeal to be granted?
What criterion must be met for leave to appeal to be granted?
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Who hears appeals from the Magistrates' Court?
Who hears appeals from the Magistrates' Court?
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Which of the following is NOT a judgment type that can be appealed under section 48 of the Magistrates' Court Act?
Which of the following is NOT a judgment type that can be appealed under section 48 of the Magistrates' Court Act?
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What are potential outcomes of a magistrates’ court judgment as stipulated in the content?
What are potential outcomes of a magistrates’ court judgment as stipulated in the content?
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In what scenario might a judgment not be appealable despite the potential for some issues to remain unresolved?
In what scenario might a judgment not be appealable despite the potential for some issues to remain unresolved?
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Which of the following outcomes is associated with an order of absolution from the instance?
Which of the following outcomes is associated with an order of absolution from the instance?
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What is one power that a division of the High Court exercising appeal jurisdiction does NOT have?
What is one power that a division of the High Court exercising appeal jurisdiction does NOT have?
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What must be done if a court does not suspend the operation of a decision pending an appeal?
What must be done if a court does not suspend the operation of a decision pending an appeal?
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In what situation can an appeal from a division of the High Court be made to the Supreme Court of Appeal?
In what situation can an appeal from a division of the High Court be made to the Supreme Court of Appeal?
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What happens if a case originates in a Magistrates' Court?
What happens if a case originates in a Magistrates' Court?
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What must the court do in terms of the decision under appeal?
What must the court do in terms of the decision under appeal?
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What characterizes an appeal from a High Court sitting as a court of first instance when involving multiple judges?
What characterizes an appeal from a High Court sitting as a court of first instance when involving multiple judges?
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What does the Superior Courts Act allow a division of the High Court to do at the hearing of an appeal?
What does the Superior Courts Act allow a division of the High Court to do at the hearing of an appeal?
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What is required for appeals from superior courts?
What is required for appeals from superior courts?
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Study Notes
Appeals and Reviews in Civil Proceedings
- Appeals are re-evaluations of court decisions.
- Reviews examine the proceedings, allowing for external evidence.
- Appeals are bound by the record, reviews are not.
- Appeals are decided by an Appeal Court, and reviews by a Review Court.
Distinction Between Appeal and Review
- Appeal: Re-evaluates the court decision based on the proceedings record; the court is bound by the record; includes a Notice of Appeal; heard by an Appeal Court.
- Review: Re-evaluates the proceedings; external evidence is allowed; the court is not bound by the record. The court can consider affidavits and notices of motion; heard by a Review Court.
Instances of Appeals and Reviews
- Appeal: Examples include mistakes in judgments (e.g., decisions not justified by the evidence), decisions on parties' rights to amend pleadings, decisions on striking out allegations, decisions related to the party with the burden of proof.
- Review: Includes cases of irregularity or illegality in judgments (e.g., no evidence presented, mistakes in law application, decision-maker mistakes applying fact to law, or bias).
Review Court Jurisdiction
- Magistrates Courts do not have the power of review.
- The High Court has review jurisdiction over lower courts.
- Grounds for High Court review include:
- Absence of court jurisdiction.
- Bias, malice, or corruption of the presiding officer.
- Gross irregularity in proceedings
- Admitting inadmissible or rejecting admissible evidence.
Review Procedure Continued
- Section 22(1) of the Superior Courts Act: Irregularity must be gross.
- A court commits irregularity when it:
- Decides against a party without giving them an opportunity to present their case. - Conducts an inspection without the party present.
- Refuses to allow a party to inspect property. - Exceeds its authority as defined in the Magistrates' Court Act.
Procedure on Review
- HCR 53 outlines procedures:
- Deliver notice of motion with affidavit.
- The notice must call on the relevant parties to give reasons for the decision to not be reviewed and set aside.
- The magistrate must forward the record to the High Court within 15 court days, along with reasons supported legally.
Appeals Considerations
- A decision is appealable if:
- It is final (cannot be changed later by the trial judge).
- It defines the rights of the parties.
- It disposes of a substantial portion of the claim.
- A decision is not appealable if:
- The court lacks finality (the court of first instance can alter it).
- It does not definitively define the rights of the parties.
- It does not dispose of a substantial portion of the relief.
Instances when no appeal lies
- No appeal from a High Court judgement or order in certain situations:
- By a spouse for maintenance pendente lite (interim maintenance).
- For contribution towards the costs of a pending matrimonial action.
- For interim custody or access to a child during a matrimonial action.
When Leave to Appeal Will Be Granted
- The appeal must have a reasonable chance of success, or other compelling reason.
- The appeal must not have no practical effect.
- The appeal must resolve the core issues between the parties.
Appeals from Magistrates' Court
- Appeals are heard by two judges in the High Court.
- Any judgment, rule, or order from the Magistrate's Court can be appealed if:
- The decision meets the criteria in section 48.
- Parties agree to appeal before further action.
- The appeal involves a decision concerning the costs.
Section 48 of the Magistrates' Courts Act
- A magistrate's court can issue judgments for the plaintiff, defendant, or rule on costs in various circumstances.
- Judgments might include suspending rulings or orders for payment in installments.
Procedure in the Magistrates' Court
- Magistrate's court procedures are regulated under MCR 51.
- High Court procedures follow HCR 50.
Magistrate's Court Procedure before Appeal to High Court
- Parties can request reasons for judgments within 10 days.
- The judicial officer must provide those reasons within 15 court days.
- The clerk provides a copy of the written judgment to the party.
Magistrate's Court Procedure before Appeal to High Court (Continued)
- Appeals must be noted within 20 court days or from when the court supplies the copy of the judgment.
- A cross-appeal is noted within 10 court days after the initial appeal.
Magistrate's Court Procedure (Continued)
- The notice of appeal must specify if it involves the entire decision or a part.
- Appeal grounds must show the findings of fact and rulings of law.
- The judicial officer will provide reasons for rulings and the admitting or rejecting evidence in a written statement.
- The matter is transferred to the High Court.
High Court Procedure (Continued)
- HCR 50, read with HCR 7, outlines High Court steps.
- Appeals must be prosecuted within 60 court days; otherwise, the appeal lapses.
- Within 40 days of noting the appeal, the appellant applies for a hearing date to the registrar, providing details.
- Full residential and postal addresses.
- Address of representative attorney.
High Court (Continued)
- If the appellant fails, the respondent has 60 days to apply for a hearing.
- If neither party applies, the appeal lapses, although a cross-appeal can be submitted within 20 days afterward.
High Court (Continued)
- (b) Filing a power of attorney: The appellant's attorney files a power of attorney simultaneously with the date-request to authorize the attorney to represent them in the appeal.
- (c) The record: Simultaneously with the date request, two copies of the record are filed with the registrar by the appellant. The appellant also provides the opposing parties with duplicate records 15 days prior to the hearing.
High Court (Continued)
- (d) The set-down of an appeal: Once the hearing date is set, the appellant provides notice to the opponent and the clerk of the court in writing, and states the appeal is open.
High Court (Continued)
- (e) The heads of argument: 15 days before appeal: A concise statement of salient points. Authority sources are listed. 10 days prior a similar statement from the opposing party. Three duplicate copies to be filed.
Powers of a Court of Appeal
- Various powers of a court of appeal:
- Confirm, vary, or reverse the judgment appealed.
- Send the case for further evidence.
- Require the parties to provide additional evidence.
- Make additional orders as needed for justice.
Powers of a Court of Appeal (Continued)
- May dispose of an appeal without hearing oral argument.
- Receive further evidence.
- Remit the case to the lower court for further proceedings, including taking additional evidence.
- Amend, confirm, or overturn the original decision as necessary.
Further Appeal
- Only one possible appeal as of right from a Magistrate Court.
- Further appeal can arise upon special leave to the Supreme Court of Appeal.
Appeals from Superior Courts
- An appeal from a decision by a High Court division (acting as a trial court) can go either to a full court in the division or to the Supreme Court of Appeal, depending on the composition of the High Court ruling, which needs special leave.
Suspension of Decision Pending Appeal
- The execution of a decision is suspended while appealing.
- The court may suspend or not (reason must be provided).
- Aggrieved party has automatic right of appeal to a higher court and the hearing will be prioritized
Procedure to Be Followed
- A ruling can be appealed to a full court in a High Court division, the Supreme Court of Appeal, or the Constitutional Court (directly or indirectly).
Appeals to a Full Court of a Division of the High Court, and Appeals to the Supreme Court of Appeal.
- Procedures for appeals to a full court of a division (High Court).
- Procedures for Supreme Court of Appeal appeals.
Powers of a Court of Appeal (Supreme Court)
- Powers of the Supreme Court of Appeal:
- Dispose of an appeal without an oral argument.
- Receive further evidence.
- Return to the original court for further proceedings, with instructions on evidence.
- Confirm, overturn, or modify the initial ruling.
Costs of Appeal
- Generally, the successful appellant is entitled to appeal costs.
- The court may alter cost decisions if deemed necessary.
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Description
Explore the critical differences between appeals and reviews in civil proceedings. This quiz will help you understand the processes, limitations, and circumstances under which each is applied. Gain clarity on how legal decisions are evaluated and the role of various courts in these processes.
