¶ Appeal and Review – Ch 21 – P1

¥ Appeal and Review Contrasted

1 The Distinctions between Appeal and Review

- When a party to litigation is not satisfied with the judgment of the court,
the party may, depending on the circumstances, take the judgment
either on appeal or review.

- In either case, the party’s primary purpose will be to set aside the
judgment handed down by the court a quo.

- There are a number of conceptual and procedural differences between

appeal and review:

/ When the litigating party is of the view that the court has come to a
wrong conclusion on the facts in issue or the law and therefore wants
to question the substantive correctness of the decision, it would be
appropriate to take the decision on appeal.

/ When the litigating party is of the view that the method used by the
court in arriving at its conclusion was flawed or irregular and
therefore wants to question the procedural fairness of the
proceedings, it would be appropriate to take the decision on review.

- Herbstein and Van Winsen point out that “the essential question in
review proceedings is not the correctness of the decision under review,
but its validity”.
 > The distinction therefore lies in whether the party challenging the
decision wishes to attack only the legal result of the proceedings
(appeal) or, alternatively, the method by which the legal result
was arrived at (review).

- Exam – Distinguish between appeal and review in table format (4

aspects on each side of the table):

Appeal Review

The litigating party is of the view that The litigating party is of the view
the court has come to a wrong that the method used by the court
conclusion on the facts in issue or in arriving at its conclusion was
the law. flawed or irregular.

It is generally a matter of argument The parties are not bound by the

based squarely on the record of the record and may bring extrinsic
proceedings alone. evidence to prove the irregularity or
illegality.

Procedure: Procedure:
Appeals are brought by lodging a Reviews are brought by way of an
notice of appeal (grounds) & then application and the affidavits which
subsequently by actual prosecution are annexed to the notice of
of the appeal. motion.

Strict time limits apply to the noting Reviews need not be brought
and the prosecution of appeals. within a fixed time (it must be
brought within a reasonable time).
Substantive correctness Procedural fairness

Result Process

1 Instances of Appeal

- Usually a proper ground for appeal will be where a decision-maker

makes a bona fide mistake of law.

- Therefore, an incorrect decision on the law is not, in itself, an irregularity

which will give grounds for a review.

- The following generally constitute questions of law based on incorrect

judgments or decisions which ought properly to be taken on appeal:

, A judgment which is not justified by the evidence;

, A decision regarding the striking-out of certain allegations;

, A decision regarding the right of a party to amend a pleading;

, A decision relating to the party upon whom the onus of proof lies.

1 Instances of Review

(1) Inferior court

> There were irregularities in the procedure of the inferior court.

 (2) One may also review the decision of a Public body

> Duty imposed on public body.

> This is a “CL review”.

(3) Court may review decisions made by the Legislature

¥ Review

- In JHB Consolidated Investment v JHB Town Council, the court defined

review as the process by which proceedings of inferior courts, both civil
and criminal, are brought before a superior court because “grave
irregularities occurring during the course of such proceedings.

- Review jurisdiction is conferred as follows:

☣ MCs do not have the power of review, and cannot review the
proceedings of other lower courts (eg. Small Claims Court).

☣ Divisions of the HC have review jurisdiction over all lower courts.

1 Review Proceedings in MCs

- A division of the HC has the power to review the proceedings of all MCs
within its area of jurisdiction.
- If a division of a HC has one or more local seats, the main seat of that
division has concurrent appeal jurisdiction over the area of jurisdiction
of nay local seat of that division, and the Judge President (JP) of the
division may direct that an appeal against a decision of a single judge
or of a MC, within that area of jurisdicition may be heard at the main
seat of the division.

- It is submitted that the phrase “appeal jurisdiction” in S6(4)(a) of the

SCA, includes the power to review the proceedings of MCs.

! Grounds for Review of Proceedings of MCs

- S22 of the SCA provides that the grounds upon which the proceedings
of any MCs may be brought under review before a court of a division
of a HC are the following:

☢ Absence of jurisdiction on the part of the court.

☢ Interest in the cause, bias, malice, or corruption on the part of the

presiding judicial officer.

☢ Gross irregularity in the proceedings;

☢ The admission of inadmissible evidence or the rejection of

admissible evidence.
1 Review of the Decision of a HC Judge

- Judges of the HC when making a decision may, depending on the

nature of the matter, act in either a judicial capacity or in an
administrative capacity.

- Eg. When a judge adjudicates on a matter involving a claim for delictual

damages, he acts in a purely judicial capacity, but when called upon to
issue a warrant the judge acts in a purely administrative capacity.

- The question then arises as to whether the decision of a judge, acting

in either a judicial or administrative capacity, may be taken on review
in the same way as the decision of a Mag.

- If the decision of a judge may be taken on review, it stands to reason

that the judge should be cited as one of the parties to the review
proceedings.

- In this regard, S47 of the SCA provides that no civil proceedings by way
of summons or notice of motion may be instituted against any judge
of a superior court and no subpoena IRO civil proceedings may be
served on any judge of a superior court, except with the consent of the
Chief Justice or the President of the SCA, as the case may be.

- Whether a judge may be cited as a party to a review proceedings was

answered in Pretoria Portland Cement, where the SCA held that the HC
may not itself be the subject of review as there are other means, which
are quite sufficient, by which the judgment of a judge may be corrected.

> The court emphasised that the primary means of correcting

judicial error was either by taking the matter on appeal to a
higher court where a judge has made a final decision; or
 Where the judge grants an ex parte order or an order of an
interim nature that may be corrected by another single judge
through the ordinary process of the court.

- There is no provision for proceedings of the HC to be reviewed by

another higher court.

1 Procedure on Review

- The procedure applicable to all reviews, whether of decisions of inferior

courts or of other bodies such as administrative tribunals, is set out in
HCR 53.

- The procedure consists of 8 steps and is as follows:

(1) Request Review – Application

- The party who requests a review is required to deliver a NOM, together

with an affidavit setting out the grounds and facts which form the basis
of the review sought, to the Mag in the case of a review of the MC
proceedings, and to all other parties affected.

- The notice must:

¸ Call upon such person(s) to give reasons why the decision or

proceedings should not be reviewed and corrected or set aside.

¸ Call upon the mag to, within 15 court days after receipt of the notice
of motion, forward the record of the proceedings to the registrar
of the HC which will be hearing the application for review, together
 with such reasons in support of the decision as the mag must
legally provide, or wishes to provide.

¸ Indicate the relevant decisions or proceedings and must be

accompanied by an affidavit containing the grounds, facts, and
circumstances whereupon the application relies for review.

(2) Magistrate – 15 Days

- The Mag must, within 15 court days after receipt of the notice of motion,
forward the record of the proceedings to the registrar of the HC which
will be hearing the application for review, together with such reasons
in support of the decision as the mag must legally provide, or wishes
to provide.

(3) Registrar – Record

- The registrar must then make the record of proceedings available to

the applicant in order to enable the applicant to inspect and make
copies of such parts of the record relevant to the review application.

- The applicant must furnish the registrar and all other parties to the
review with 2 copies of those portions of the record that the applicant
considers necessary for the purpose of the review.
(4) Applicant – 10 Court Days

- The applicant may then, within 10 court days after receiving the record
from the registrar, by delivery of a notice and an accompanying
affidavit, amend or expand on the NOM and supplement the
supporting affidavit.

(5) Oppose?

- If the Mag or any other affected party, intends to oppose the

application for review, then the Mag or a party must:

Δ Within 15 court days of receipt of the NOM or an amendment

thereof, deliver a Notice of Intention to Oppose the grant of the
order sought by the applicant.

Š Such notice must include an address within 8 kms of the

registrar’s office where service of all process in the matter
will be accepted.

Δ Within 30 court days after the expiry of the period mentioned in

HCR 53(4) (40 court days after the registrar has made the record
available to the applicant) file an answering affidavit in opposition
to the application.

(6) Replying Affidavit – 10 Court Days

- The applicant may then file a replying affidavit within 10 court days after
an answering affidavit has been served upon the applicant.
 (7) Set down for Hearing

- The application is thereafter set down for hearing in the normal way.

(8) Review Application - Outcome

- The court will then either dismiss or grant the review application.

- Should the review be successful, the court of review may set aside the
proceedings reviewed and may remit the matter to the court a quo or
the tribunal in question for further hearing or substitute its own
decision.

- It has been held that the procedure set out in HCR 53 is not
peremptory.

¥ Appeal

- As a general rule, decisions of MCs and the HCs may be taken on

appeal.

- A decision of a MC may be taken on appeal to the HC and a decision

of the HC, as a court of first instance, may be taken on appeal to a full
court or the SCA.

- However, appeals will not lie in all cases.

- An appeal may also be made to the Con Court, either directly, or

indirectly via the SCA.
1 When does an Appeal Lie?

- An appeal against decision of a division of the HC as court of first

instance lies, upon leave having been granted:

2 If the court consisted of a single judge, to either the SCA or a full

court of that division, depending on whether the judge granting
leave directs that the appeal be heard by the SCA or the full court;
or

2 If the court consisted of more than one judge, to the SCA.

- An appeal against any decision of a division of the HC, lies to the SCA
upon special leave having been granted by the SCA.

- However, an appeal may be dismissed if its outcome would have no

practical consequences.

1 Appeal Scenarios

- The following appeals may be made:

/ MC → HC

/ HC → HC (Full Bench)

/ HC → SCA

/ CC (Highest court of appeal)

 D Appeals from MCs to the HC

- ITO S21 of the SCA, a division of the HC has the power to hear and
determine appeals from all MCs within its area of jurisdiction.

- S14 of the SCA provides that an appeal against a decision of a Mag is

heard by 2 judges of the HC.
- Strict time limits apply.

- An appeal from a MC to a HC is an automatic right.

> No leave to appeal need be granted.

- The procedure to be followed IRO appeals from MCs can be divided

into 2 stages:

⚖ The first stage deals with the processes of the MC and is regulated
ITO MCR 51.

⚖ The second stage deals with the processes of the HC and is

regulated ITO HCR 50 read with HCR 7.

- There are 11 steps in this entire procedure.

 Stage 1 – In the MC

(1) Appellant request reasons for judgment

(2) Note an appeal – By filing a “Notice of Appeal”

 (3) Notice of cross appeal

(4) Statement by judicial officer

(5) Transferred to HC

 Stage 2 – In the HC

(6) Prosecute appeal

(7) Application for date

(8) Filing of a Power of Attorney

(9) Record

(10) Set down

(11) Heads of argument

 Stage 1 – In the MC

(1) Appellant request reasons for judgment

- Within 10 court days after judgment, a party (the appellant) may, in

writing, request reasons for the judgment.

- In response, the following procedure 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.

(2) Note an appeal – By filing a “Notice of 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 MC.

(3) Notice of cross appeal

- 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.

- The notice of cross-appeal must contain the same details as the

appellant’s notice of appeal.
(4) Statement by judicial officer

- 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:

$ The facts that the judicial officer found to be proved;

$ The grounds upon which the judicial officer arrived at any finding of
fact specified in the notice of appeal;

$ The judicial officer’s reasons for nay ruling of law or for the admission
or rejection of any evidence so specified as appealed against.

- Such statement shall become part of the record.

(5) Transferred to HC

- The matter is thereafter transferred to the HC, where the appeal is

prosecuted.

 Stage 2 – In the HC

(6) Prosecute 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 HC for
the assignment of a date for the hearing of the appeal.

(7) Application for date

- Should the appellant fail to do so, the respondent may, within 60 court
days allowed for the prosecution of the appeal specified above, apply
for a date of hearing in a 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.

(8) 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 authorises the attorney to conduct the appeal on behalf of the
appellant.

(9) Record

- The appellant must, simultaneously with the filing of the request for a
date for hearing of the appeal, file 2 copies of the record with the
registrar.
 - The appellant must also, not less than 15 court days before the hearing
of the appeal, file 2 copies of the record with the registrar.

(10) Set down

- Upon the application for a date of hearing, the registrar must assign a
date for the hearing of the appeal, which must be at least 40 court days
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.

(11) 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
(without elaboration) 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.

- 3 additional copies must be lodged with the registrar in each case.

- These statements are called the HOA.

 Appeal Hearing

- ITO S87 of the MCA, 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.

- S19 of the SCA, in addition, provides that a division of the HC exercising

appeal jurisdiction may:

" Dispose of an appeal without the hearing of oral argument;

" Receive further evidence; etc.

 Further Appeal

- When a case has originated in a MC, there is only 1 appeal as of right.

- A further appeal against the decision of the division of the HC which

heard the original appeal against the decision of the Mag, may be made
ITO S16 of the SCA by special leave to appeal further to the SCA.

- The same rules apply to an application for the review of proceedings in

a MC.
- The application will be heard by 2 judges of the HC, and an appeal
against their decision must be made to the SCA by way of special leave
to appeal.

- A further appeal may be made to the Con Court, but if it is another

matter than a constitutional, it must first grant leave to appeal on the
grounds that the matter raises an arguable point of law of general
public importance which ought to be considered by the Court.

> The Con Court is the highest court of appeal in all matters.

œ Constitution Seventeenth Amendment Act, 2012 (23 Aug 2013)

- The Seventeenth Amendment Act provides that the Con Court is the
highest court in ALL matters.

- It now has jurisdiction over:

R Constitutional matters; as well as

R Any other matter IF the Con Court grants leave to appeal on the
ground that the matter raises an arguable point of law of general
public importance which ought to be considered by the Con Court.