Slide 16- Appeals Flashcards
What is the difference between appeals and reviews?
Reviews focus on the procedure whereby the judgement of the court was reached.
Appeals focus on the merits of the judgement itself.
When can one appeal?
When they are dissatisfied with the judgement, either on the law that was applied or on the facts or both.
(applies to judgements and orders only)
You CANNOT appeal against a RULING.
What may be appealed? (3 Attributes of a judgement/Order)
A judgement or order that has the following three attributes:
1. It must be final in effect and not susceptible to change by the court of first instance.
2. it must be definitive in the rights of the parties in that it provides distinct relief
3. it must have effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.
How has the Constitutional Court and SCA softened the approach of APPEALABILITY in the case of Zweni v Minister of Laws and Orders of RSA?
In the case of Zweni, the court held that if a decision did not have all 3 attributes, it would be considered a ruling and therefore could not be appealed.
The SCA and Constitutional court have softened this approach by stating that a decision may be appealable even if it does not possess ALL 3 attributes. The court emphasized the EFFECT OF FINALITY.
Therefore, if a decision is not final in effect, it means it can still be altered by court if first instance, it is not definitive of the rights of the parties and it does not have the effect of disposing at least a substantive portion of relief claimed.
What are the examples of “judgement and order”?
- A finding that the defendant is not liable to the plaintiff
- A declaratory order that plaintiff’s claim for damages
- A dismissal special plea
- An interim interdict that disposes any issue in main proceeding is.
Dhlumayo Case Principles- Appeal on facts
- Appellant is entitled to a re-hearing as a general rule.
- Governing principles of appeals for courts should be flexible.
- Trial judge has an advantage that the appeal court does not have, this is because they are able to see and hear witnesses and their demeanour.
- As a result, the appeal court is very reluctant to upset the finding sof a trial judge.
- Appeal court should not anxiously try to discover adverse reasons and conclusions of the trial judgement.
What are the principles governing appeals in discretionary matter ?These can be appealed if you are not satisfied with the way a lower court has exercised it’s discretion.
As a general rule, an appeal court is not entitled to interfere with the exercise of discretion of a lower court, unless the discretion was not exercised judicially.
A discretion power is regarded as not having been exercised judicially if:
- It is applied capriciously–this means that there were sudden changes in the rules without a good reason.
- Court was moved by a wrong principle of law or an incorrect appreciation of the fact.
- it did not apply unbiased judgement.
- it did not have substantial reasons for decision.
What is the effect of a pending appeal on judgement of the lower court?
The execution of a judgement is suspended when the party notes an appeal. This means that the judgement cannot be carried out, no effect will be given to it, unless the court which granted it, gives permission.
In which instances can a judgement pending appeal be given effect?
The party in whose favour the judgement was given may apply to the court in terms of section 18(3) of the Superior Courts Act, the court may only make an order allowing execution of the judgement if the party can prove the following:
1. They will suffer irreparable harm if the court does not order execution of judgement, this must be proven on a balance of probabilities.
2. There exists “exceptional circumstances” warranting the operation and execution of judgement pending the outcome.
What is the process to appeal from SCA to CC?
- You need leave to appeal from the CC
- The application for leave must be lodged with registrar of the CC within 15 days after the order you are appearing against has been handed down.
- Notice of application must be given to the other party
- Application must set down the full details of the matter appealed including unconstitutional matters
- Respondent may also respond in writing, the grounds in which application is opposed
What are the 4 shortcut appeals directly to CC?
- Direct access cases:
a) CC will be court of first instance because the matter is of sufficient public importance or urgency.
b)Where is has exclusive jurisdiction=matters relating to constitutionality of parliamentary or provincial Bills . - Declaration of invalidity in CC Cases:
this is when the SCA or HC declares an Act of Parliament or Provincial Act or conduct of the President as constitutionally invalid, it must go to the CC for confirmation (this can happen in two ways) - The leapfrog to the Constitutional Court:
a) when a matter that raises an arguable point of law of general public importance that ought to be heard by the CC, and able to show that it is a matter in the interest of justice.
b) When a HC has made a decision on a matter of the CC.
4) Leapfrog to the SCA
What are the 2 ways in which a invalidity declaration can come before CC?
- Regardless of appeal or application for confirmation. This means that the registrar will send an order to the CC within 15 days.
- It is open to either of the parties to appeal against such judgement or apply for confirmation of the declaration of invalidity.
What must you do to get direct access to CC?
- Make an application by way of notice of motion, supported by affidavit.
- It must set out grounds on why it is in the interests of justice that direct access to the CC be granted
- it must set out the nature of relief sought and grounds on which it is based.
- whether CC can deal with the matter without oral evidence and if not, how such evidence should be adduced.
What are the grounds for granting leave to appeal ?
- Appeal would have a reasonable prospect to success
- there is a compelling reason why appeal should be heard, including conflicting judgement
- decision sought on appeal will have practical effect
- Appeal will lead to just and prompt resolution of the real issues.
What are the requirements for special leave?
- Appeal raises a substantial point in law
- Matter of great importance to parties and public importance
- prospects of success are so high that refusal would result in manifest denial of justice.
