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REVIEWS
General overview
The term “review” be used in other contexts as the reviewing of court a quo judgments, such as
(1) The review of proceedings of administrative authorities and
(2) The judicial review of constitutional matters.
The usual meaning is the process whereby the proceedings of lower courts both civil and
criminal cases, are brought before the HC in respect of irregularities occurring during
proceedings to be REVIEWED.
REVIEW JURISDICTION-
First, take note that MC’s do not have review jurisdiction.
Only HC’s and Local Divisions have review power, and of course CC, in the sense that it must
affirm constitutional invalidity.
Review powers of HC’s over MC’s:
In terms of section 21(1)(b) of the Superior Courts Act, a division of the HC has the
power to review the proceedings of all MC’s within its area of jurisdiction.
Take note that previously local divisions did not have review power but appear now
to have that in terms of the judgment in Nedbank Limited v Norris and Others.
The GROUNDS OF REVIEW
Section 22 of the Superior Courts Act sets out the grounds upon which proceedings in the
MC may be reviewed.
These grounds are:
absence of jurisdiction,
interest in the cause,
bias,
malice or corruption on the part of the presiding officer,
gross irregularities in the proceedings,
and the admission of inadmissible or incompetent evidence or the rejection of
admissible or competent evidence.
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PROCEDURE TO BRING MATTER UNDER REVIEW
One uses the application procedure set out in the rules.
In terms of Rule 53(1), review is brought by notice of motion directed at the magistrate who
delivered the judgment as well as other affected parties( the resondents)
The notice of motion will:
1. Call upon the magistrate and opposing parties to show cause why the court’s decision or
court proceedings should not be reviewed and corrected and set aside and,
2. Call upon the magistrate within 15 days after he receives the notice of motion to deliver
to the registrar:
3. The record of the proceedings; together with,
4. Any reasons for his judgment.
See example of review motion in the TB on page 376.
5. The registrar sends the record to the applicant who makes copies of those portions of
the record which are necessary for the review proceedings.
6. The registrar must receive two of these copies and the other parties, one each. The
applicant certifies them as copies of the original and pays the copying costs.
7. In terms of ruler 53(4) the applicant is entitled within 10 days after the registrar has
made the record available to him, to AMEND, ADD OR VARY the terms of his notice of
motion and supplement his supporting affidavit. This he does by delivering a rule 53(4)
notice with an affidavit setting out the changes. Consent for amendment etc. from the
respondent is not required.
OPPOSING THE APPLICATION FOR REVIEW
The magistrate or opposing party may oppose the application to review in terms of rule 53 (5):
1. Within 15 days after receiving the notice of motion these parties must deliver their
notice of opposition. It must include a service address within 15 km. from the office of
the registrar.
2. Within 30 days after the expiry of the ten-day period within which the applicant may
alter his application papers in terms of 53(4), the magistrate must deliver his
answering affidavit to the applicant.
3. In terms of 53(6) the applicant may deliver replying affidavits in response to the
answering affidavits in response of the answering affidavits as if the matter were a
normal application. In appropriate circumstances the respondent may place other parts
of the record-where they were not place before the court by the applicant-before the
court.
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TIME LIMITS
An applicant must institute review proceedings within a REASONABLE PERIOD after the
judgment he wants reviewed. Where he fails to institute it within a reasonable time, the
review court has to decide:
(a) Whether the proceedings were in fact instituted after the passing of a reasonable period
in other words the delay can be said to be unreasonable and
(b) If so, whether the unreasonable delay ought to be condoned. The court exercises a
judicial discretion, having regard to all relevant circumstances in deciding whether the
delay ought to be condoned.
URGENT REVIEWS
∆ It is possible to bring urgent review proceedings where it is necessary and to ask a court for
interim relief pending a review process being finalised.
POWERS OF THE COURT REVIEW
A If the applicant for review is successful, the court will usually set aside the proceedings
under review and refer the matter back to the court or administrative tribunal which made
the decision for a reconsideration.
B In certain cases though, the review court may decide to impose its own decision in place of
the inferior court or tribunal. Guidelines have crystalized in SA law in regard whether to
follow the first or second route. See the dictum on page 378.
COURT RECORD REQUIRED
1. Unlike the situation that pertains to appeal, the review court is not bound to the record
of the proceedings in the court a quo. This is because the irregularity may not be
apparent from the record.
2. It means that extrinsic evidence may be allowed such as for example a bribe that was
given to a magistrate.
REVIEWS
General overview
The term “review” be used in other contexts as the reviewing of court a quo judgments, such as
(1) The review of proceedings of administrative authorities and
(2) The judicial review of constitutional matters.
The usual meaning is the process whereby the proceedings of lower courts both civil and
criminal cases, are brought before the HC in respect of irregularities occurring during
proceedings to be REVIEWED.
REVIEW JURISDICTION-
First, take note that MC’s do not have review jurisdiction.
Only HC’s and Local Divisions have review power, and of course CC, in the sense that it must
affirm constitutional invalidity.
Review powers of HC’s over MC’s:
In terms of section 21(1)(b) of the Superior Courts Act, a division of the HC has the
power to review the proceedings of all MC’s within its area of jurisdiction.
Take note that previously local divisions did not have review power but appear now
to have that in terms of the judgment in Nedbank Limited v Norris and Others.
The GROUNDS OF REVIEW
Section 22 of the Superior Courts Act sets out the grounds upon which proceedings in the
MC may be reviewed.
These grounds are:
absence of jurisdiction,
interest in the cause,
bias,
malice or corruption on the part of the presiding officer,
gross irregularities in the proceedings,
and the admission of inadmissible or incompetent evidence or the rejection of
admissible or competent evidence.
, Page |2
PROCEDURE TO BRING MATTER UNDER REVIEW
One uses the application procedure set out in the rules.
In terms of Rule 53(1), review is brought by notice of motion directed at the magistrate who
delivered the judgment as well as other affected parties( the resondents)
The notice of motion will:
1. Call upon the magistrate and opposing parties to show cause why the court’s decision or
court proceedings should not be reviewed and corrected and set aside and,
2. Call upon the magistrate within 15 days after he receives the notice of motion to deliver
to the registrar:
3. The record of the proceedings; together with,
4. Any reasons for his judgment.
See example of review motion in the TB on page 376.
5. The registrar sends the record to the applicant who makes copies of those portions of
the record which are necessary for the review proceedings.
6. The registrar must receive two of these copies and the other parties, one each. The
applicant certifies them as copies of the original and pays the copying costs.
7. In terms of ruler 53(4) the applicant is entitled within 10 days after the registrar has
made the record available to him, to AMEND, ADD OR VARY the terms of his notice of
motion and supplement his supporting affidavit. This he does by delivering a rule 53(4)
notice with an affidavit setting out the changes. Consent for amendment etc. from the
respondent is not required.
OPPOSING THE APPLICATION FOR REVIEW
The magistrate or opposing party may oppose the application to review in terms of rule 53 (5):
1. Within 15 days after receiving the notice of motion these parties must deliver their
notice of opposition. It must include a service address within 15 km. from the office of
the registrar.
2. Within 30 days after the expiry of the ten-day period within which the applicant may
alter his application papers in terms of 53(4), the magistrate must deliver his
answering affidavit to the applicant.
3. In terms of 53(6) the applicant may deliver replying affidavits in response to the
answering affidavits in response of the answering affidavits as if the matter were a
normal application. In appropriate circumstances the respondent may place other parts
of the record-where they were not place before the court by the applicant-before the
court.
, Page |3
TIME LIMITS
An applicant must institute review proceedings within a REASONABLE PERIOD after the
judgment he wants reviewed. Where he fails to institute it within a reasonable time, the
review court has to decide:
(a) Whether the proceedings were in fact instituted after the passing of a reasonable period
in other words the delay can be said to be unreasonable and
(b) If so, whether the unreasonable delay ought to be condoned. The court exercises a
judicial discretion, having regard to all relevant circumstances in deciding whether the
delay ought to be condoned.
URGENT REVIEWS
∆ It is possible to bring urgent review proceedings where it is necessary and to ask a court for
interim relief pending a review process being finalised.
POWERS OF THE COURT REVIEW
A If the applicant for review is successful, the court will usually set aside the proceedings
under review and refer the matter back to the court or administrative tribunal which made
the decision for a reconsideration.
B In certain cases though, the review court may decide to impose its own decision in place of
the inferior court or tribunal. Guidelines have crystalized in SA law in regard whether to
follow the first or second route. See the dictum on page 378.
COURT RECORD REQUIRED
1. Unlike the situation that pertains to appeal, the review court is not bound to the record
of the proceedings in the court a quo. This is because the irregularity may not be
apparent from the record.
2. It means that extrinsic evidence may be allowed such as for example a bribe that was
given to a magistrate.
