Appeals and Reviews in Civil Proceedings PDF

Prof. R Baboolal-Frank Appeals and Reviews in Civil Proceedings  Outline Appeal Review Procedure Differences Distinction between appeal and review Appeal Review Re-evaluation of the decision of Review of the proceedings. the court....

Prof. R Baboolal-Frank Appeals and Reviews in Civil Proceedings  Outline Appeal Review Procedure Differences Distinction between appeal and review Appeal Review Re-evaluation of the decision of Review of the proceedings. the court. External or extrinsic evidence Based on the record of the may be submitted for proceedings. reconsideration. Bound by the record. Not bound by the record. Notice of Appeal Evidence presented on affidavit. Appeal Court Application: Notice of Motion and Affidavit Review Court. Instances of appeals and reviews Appeal Review This Photo by Unknown Author is Bona fide mistake licensed under CC BY-SA Irregularity or illegality Eg’s of incorrect judgments: Eg’s of judgments taken on review: A judgment which is not justified No evidence at all presented by the evidence Magistrate made a mistake in the A decision regarding the right of a application of law party to amend a pleading Mistake of the decision-maker of A decision regarding the striking- applying the facts to the law out of certain allegations Apprehensive of bias A decision relating to the party upon whom the onus of proof lies Review Magistrates Court does not have the power of review. The High Court has review jurisdiction over all lower courts. The grounds for review proceedings of any Magistrates’ Court: (a) absence of jurisdiction on the part of the court; (b) interest in the cause, bias, malice or corruption on the part of the presiding judicial officer; (c) gross irregularity in the proceedings; (d) the admission of inadmissible or incompetent evidence or the rejection of admissible or competent evidence.  S22 (1) of the Superior Courts Act the irregularity complained of must constitute a gross irregularity. A court commits a gross irregularity when: Review (a) makes a decision against a party without affording [continued] that party an opportunity to present a case; (b) holds an inspection in loco without the presence of a party; (c) refuses to allow a party to inspect attached property; (d) exceeds its authority as set out in the Magistrates’ Court Act.  HCR 53 sets out the procedure Deliver a notice of motion together with an affidavit. The notice of motion must: Call upon such person (s) to give reasons why the decision or proceedings should not be reviewed and corrected or set aside; Procedure on Call upon the magistrate to, within 15 court days after receipt of the notice of motion, forward the record of the proceedings to the registrar of the High Court which will review be hearing the application for review, together with such reasons in support of the decision as the magistrate must legally provide or wish to provide. Indicate the relevant decisions or proceedings that must be accompanied by an affidavit containing the grounds, facts and circumstances whereupon the application relies for review.  A decision is appealable in the following three instances: 1. The decision must be final-that is, it must be a decision that cannot be corrected or altered or set aside by the trial judge at a later stage of the trial. Appeals 2. The decision is definitive of the rights of the parties. 3. The decision must have the effect of disposing of a substantial portion of the relief claimed by the plaintiff in the main action.  The following are non-appealable decisions: A. It lacks finality in that the court of first Appeals instance is entitled to alter it. B. It is not definitive of the rights of the [Continued] parties. C. It does not dispose of at least a substantial portion of the relief claimed in the main proceedings. Instances in which no appeal lies No appeal lies from a judgment or order in a High Court matter concerning an application: By a spouse for maintenance pendente lite (interim maintenance) For a contribution towards the costs of a pending matrimonial action For the interim custody of a child when a matrimonial action between the parents is pending or is about to be instituted; or For interim access to a child when a matrimonial action between the parents is pending or is about to be instituted.  The appeal would have a reasonable prospect of success or there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration. When leave to The decision sought on appeal is not of such a appeal will be nature that it will have no practical effect or result. granted Where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties. Appeals from the Magistrates Court The appeal is heard by 2 judges in the High Court. Section 83 of the Magistrates’ Court Act, a party to a civil proceedings may appeal to the High Court against: Any judgment of the nature described in section 48 Any rule or order made in such suit or proceeding that has the effect of a final judgment Any decision overruling an exception, when the parties concerned consent to such an appeal before proceeding further in an action (or application), or when it is appealed from in conjunction with the principal case, or when it includes an order as to costs. Section 48 of the Magistrates’ Courts Act A magistrates’ court may, as a result of an action or application, grant: Judgment for the plaintiff Judgment for the defendant Absolution from the instance Such judgment as to costs as may be just An order against the party in whose favour judgment has been given suspending proceedings upon the judgment for a specified period pending arrangement by the other party for the satisfaction of the judgment; An order for the payment of an amount of money in specified instalments, or otherwise A party may, therefore, lodge an appeal against any of the aforesaid judgments and orders.  The procedure to be followed in respect of Procedure in appeals from Magistrates’ Courts can be divided into two stages: the The first stage deals with the processes of the Magistrates’ Court and is regulated in terms of Magistrates’ MCR 51. The second stage deals with the processes of the Court High Court and is regulated in terms of HCR 50 read with HCR 7. Magistrates Court Procedure before appeal can be heard in the High Court (a) Magistrates’ reasons for judgment within 10 days after judgment, a party (appellant) may in writing request reasons for the judgment. In response, the following procedures applies: The judicial officer must, within 15 court days after receipt of the request for reasons, hand to the clerk of the court a written judgment showing what facts the judicial officer found to be proved and the reasons for the judgment. The clerk or registrar of the court must then hand a copy of the written judgment to the party who applied for it. Magistrates Court Procedure before appeal can be heard in the High Court [continued] (b) Noting an appeal Thereafter the appellant must note the appeal within 20 court days of the date of the judgment appealed against or within 20 court days after the clerk of the court has supplied a copy of the written judgment to the party applying for the written judgment, whichever period is the longer. The appeal is noted by delivering the notice of appeal to the opponent and the Magistrates’ Court. A cross-appeal is noted by the delivery of a notice of cross-appeal within 10 court days after the delivery of the notice of appeal. Magistrates Court Procedure before appeal can be heard in the High Court [continued] The notice of appeal or cross-appeal must state: Whether the appellant appeals against the whole judgment or only a part of the judgment, and if only part, what part; The grounds of appeal, specifying the findings of fact or rulings of law appealed against. Upon delivery of a notice of appeal, the judicial officer must, within 15 court days hand to the clerk or registrar of the court a written statement showing, so far as may be necessary, having regard to any written judgment already handed in: Magistrates The facts that the judicial officer found to be Court proved; The grounds upon which the judicial officer Procedure arrived at any finding of fact specified in the notice of appeal; before appeal The judicial officer’s reasons for any ruling of law can be heard or for the admission or rejection of any evidence so specified as appealed against. in the High Such statement shall become part of the record. Court The matter is thereafter transferred to the High Court, where the appeal is prosecuted. [continued] High Court HCR 50 read with HCR 7 describes the steps to be taken in the High Court. (a) Magistrate’s reasons and the prosecution of an appeal HCR 50(1) provides that the appeal must be prosecuted within 60 court days after being noted; otherwise it is deemed to have lapsed. Within 40 court days of noting the appeal, the appellant must, in writing and with notice to all other parties, apply to the registrar of the High Court for the assignment of a date for the hearing of the appeal. Simultaneously, the appellant must provide the registrar with full residential and postal addresses in writing and the address of a representing attorney. High Court [continued] Should the appellant fail to do so, the respondent may, within the 60 court days allowed for the prosecution of the appeal, apply for a date of hearing in like manner. The appeal is deemed to have been prosecuted once an application for a date of hearing is received from one of the parties. If no such application is made by either party, the appeal and any cross-appeal that may have been lodged, lapses, although the party cross-appealing may within 20 court days of the lapse of the appeal apply to the registrar for a date for the hearing of the cross-appeal. High Court [continued] (b) Filing of a power of attorney Simultaneously with the filing of a request for a date for the hearing of the appeal, the appellant’s attorney must also file a power of attorney which authorizes the attorney to conduct the appeal on behalf of the appellant. (c) The record The appellant must, simultaneously with the filing of the request for a date for the hearing of the appeal, file two copies of the record with the registrar. The appellant must also, not less than 15 court days before the hearing of the appeal, furnish each of the other parties to the appeal with two copies of the record.  (d) The set-down of an appeal Upon the application for a date of hearing, the registrar must assign a date for the hearing of High Court the appeal, which must be at least 40 court days [continued] after the receipt of the application unless the parties consent in writing to an earlier date for the appeal. The registrar then advises the appellant of the date of the hearing. The appellant delivers a notice of set-down to the opponent and, in writing, also notifies the clerk of the court against whose decision the appeal is pending. High Court [continued] (e) The heads of argument At least 15 court days before the appeal is heard, the appellant must deliver a copy of a concise and succinct statement of the main points which are to be argued on appeal, as well as a list of the authorities to be tendered in support of each point. Not less than 10 court days before the appeal is heard the respondent must deliver a similar statement. Three additional copies must be lodged with the registrar in each case. These statements are called the heads of argument. Powers of a court of appeal In terms of section 87 of the Magistrates’ Court Act, the appeal court may: Confirm, vary or reverse the judgment appealed against; Remit the matter to the court a quo for the taking of further evidence to enable the appeal to be determined; Order the parties or either of them to produce, in the court of appeal, such further proof as shall seem necessary or desirable; Take any other course conducive to the just, speedy and inexpensive settlement of the case; Make such order as to costs as justice may require. Powers of a court of appeal Section 19 of the Superior Courts Act in addition provides that a division of the High Court exercising appeal jurisdiction Section may: Dispose Dispose of an appeal without the hearing of oral argument; Receive Receive further evidence; Remit the case to the court of first instance for further hearing with such instructions as regard the taking of further Remit evidence, or otherwise, as the court hearing the appeal deem necessary; Confirm, amend or Confirm, amend or set aside the decision which is the subject of the appeal and render any decision which the set aside circumstances may require.  When a case has originated in a Magistrates’ Court there is only one appeal as of right. A further appeal against the decision of the division Further of the High Court which heard the original appeal against the decision of the magistrate, may be Appeal made in terms of section 16(1)(b) of the Superior Courts Act by special leave to appeal further to the Supreme Court of Appeal. Appeals from superior courts Section 16 of the Superior Courts Act provides inter alia, as follows: An appeal against any decision of a division of the High Court sitting as a court of first instance lies, upon leave having been granted: If the court consisted of a single judge, either to the Supreme Court of Appeal or to a full court of that division; If the court consisted of more than one judge, to the Supreme Court of Appeal. Suspension of decision pending the appeal The operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal. If the court orders that the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal is not suspended pending the decision of the application or appeal: The court must immediately record its reasons for doing so; The aggrieved party has an automatic right of appeal to the next highest court; The court hearing such an appeal must deal with it as a matter of extreme urgency. Such order will be automatically suspended, pending the outcome of such appeal.  A matter may be taken on appeal to: Procedure to be A full court of a division of the High Court; The Supreme Court of Appeal; followed The Constitutional Court, either directly or indirectly Appeals to a full court of a division of the High Court A) Leave to appeal B) Noting an appeal C) Security D)Application for a date for the hearing of an appeal E) Filing of a power of attorney F) The record G) The set-down of an appeal H) Heads of argument I) Urgency  A) Noting an appeal Appeals to the B) Security Supreme Court C) Power of attorney of Appeal D) The record E) Heads of argument F) Set-down G) Condonation Powers of a court of appeal The Supreme Court of Appeal or a division of the High Court exercising appeal jurisdiction may, in addition to any power as may specifically be provided for in other law: Dispose of an appeal without the hearing of oral argument; Receive further evidence; Remit the case to the court of first instance for further hearing , with instructions as to the taking of further evidence or otherwise as may be deemed necessary; Confirm, amend or set aside the decision appealed against and render any decision which the circumstances may require. Costs of appeal The general rule is that if an appellant succeeds in having the decision altered in his or her favour, the appellant is entitled to the costs of the appeal. The order of costs made by the court of first instance may, of course, be altered by the court of appeal.