1
APPEALS
GENERAL INTRODUCTION AND PRINCIPLES
1. Appeals objects and focusses on the MERITS of a judgment which objection can be
based on an argument that the law was applied wrong and or that the evidence
was misinterpreted.
2. A review objects on the manner in which a judgment was derived with focus on
some irregularity for example court prejudice, refusing or allowing non-admissible
evidence.
3. The aim of an appeal is therefore to have the court’s judgment set aside.
4. It is important to distinguish between JUDGMENTS; ORDERS and mere RULINGS
5. Generally only the first two JUDGMENTS and ORDERS are subject to appeal because
the possess the following three characteristics:
A: They are final in effect
B: The court judgment or order must be definitive of the rights of parties
C: The court judgment or order must have the effect of disposing of at least a
substantial portion of the relief claimed in the main proceedings.
The following are examples of rulings:
A Ruling on a point of evidence
A ruling on a preliminary point of law
An order of further particulars
A discovery order
An order for security of costs
In further explaining these principles, our courts have stressed that one must
consider the effect of the court order.
As a result, this has caused that an interim INTERDICT (which is usually not
appealable), was declared appealable in the case of Maccs v Macassar Land Claims
2005 SCA, because the effect of the interim order was that mining would be
stopped and by the time an appeal decision was in, the licence to mine
THE TIME WITHIN WHICH TO would IN ANY CASE HAVE RUN OUT AND
THEREFORE THE EFFECT WAS REGARDED AS FINAL, AND thus the order was
appealable.
OTHER EXAMPLES OF FINAL COURT FINDINGS:
∆ Dismissal of a special plea
∆ Finding that defendant is not liable to the plaintiff
∆ Declaratory order that plaintiff’s claim for damages was limited.
, 2
MAGISTRATES COURT APPEALS
Regulated by section 83 of the MCAct.
Judgment for plaintiff, judgment for defendant, absolution of the instance, judgment
to costs and any RULING that has a FINAL EFFECT.
In the MC, like the HC, the “final effect” criterion is
Principles governing appeals in discretionary matters
Please take note apart from appeals from court a quo on facts and or law decisions,
appeals can also be brought against the exercise of a discretion by a court.
The general rule here is that any appeal court will not interfere with a court’s
exercise of a discretion unless it appears the discretion was exercised un-judicially
which will happen if the discretionary power was exercised:
Capriciously
Moved my wrong legal principle
Unbiased judgment
Did not act for good/substantial reasons.
The effect of a pending appeal on the judgment of a lower court
In terms of Rule 18(1) the operation and execution of a judgment under appeal IS
SUSPENDED pending the leave to appeal application or the appeal itself.
In terms of rule 18(3) however, a court can make an order for the execution of the
judgment if two things are proved:
1. There exists exceptional circumstances warranting the execution of the
judgment.
2. On a balance of probabilities, the applicant will suffer irreparable harm if the
court does not so order and the other party will not suffer such irreparable harm.
If this is granted-it entitles the party against whom it is made to an automatic appeal
and must be treated as a matter of extreme urgency.
It is therefore not easy to get an order for execution of a judgment pending appeal
and this was clearly so intended by the Legislature.
DISPUTING THE VALIDFITY OF LAW IN THE MAGISTRATE’S COURT
o MC’s are not entitled to declare either statute law or common law to be invalid on
constitutional (or any other) grounds.
o The remedy is take the matter on appeal to the HC .
o MC decides a case as if the law is valid, but can hear evidence as to the invalidity.
Different routes an appeal may follow:
THIS DEPENDS UPON WHETHER the court of first instance is a MC or the HC.
APPEALS
GENERAL INTRODUCTION AND PRINCIPLES
1. Appeals objects and focusses on the MERITS of a judgment which objection can be
based on an argument that the law was applied wrong and or that the evidence
was misinterpreted.
2. A review objects on the manner in which a judgment was derived with focus on
some irregularity for example court prejudice, refusing or allowing non-admissible
evidence.
3. The aim of an appeal is therefore to have the court’s judgment set aside.
4. It is important to distinguish between JUDGMENTS; ORDERS and mere RULINGS
5. Generally only the first two JUDGMENTS and ORDERS are subject to appeal because
the possess the following three characteristics:
A: They are final in effect
B: The court judgment or order must be definitive of the rights of parties
C: The court judgment or order must have the effect of disposing of at least a
substantial portion of the relief claimed in the main proceedings.
The following are examples of rulings:
A Ruling on a point of evidence
A ruling on a preliminary point of law
An order of further particulars
A discovery order
An order for security of costs
In further explaining these principles, our courts have stressed that one must
consider the effect of the court order.
As a result, this has caused that an interim INTERDICT (which is usually not
appealable), was declared appealable in the case of Maccs v Macassar Land Claims
2005 SCA, because the effect of the interim order was that mining would be
stopped and by the time an appeal decision was in, the licence to mine
THE TIME WITHIN WHICH TO would IN ANY CASE HAVE RUN OUT AND
THEREFORE THE EFFECT WAS REGARDED AS FINAL, AND thus the order was
appealable.
OTHER EXAMPLES OF FINAL COURT FINDINGS:
∆ Dismissal of a special plea
∆ Finding that defendant is not liable to the plaintiff
∆ Declaratory order that plaintiff’s claim for damages was limited.
, 2
MAGISTRATES COURT APPEALS
Regulated by section 83 of the MCAct.
Judgment for plaintiff, judgment for defendant, absolution of the instance, judgment
to costs and any RULING that has a FINAL EFFECT.
In the MC, like the HC, the “final effect” criterion is
Principles governing appeals in discretionary matters
Please take note apart from appeals from court a quo on facts and or law decisions,
appeals can also be brought against the exercise of a discretion by a court.
The general rule here is that any appeal court will not interfere with a court’s
exercise of a discretion unless it appears the discretion was exercised un-judicially
which will happen if the discretionary power was exercised:
Capriciously
Moved my wrong legal principle
Unbiased judgment
Did not act for good/substantial reasons.
The effect of a pending appeal on the judgment of a lower court
In terms of Rule 18(1) the operation and execution of a judgment under appeal IS
SUSPENDED pending the leave to appeal application or the appeal itself.
In terms of rule 18(3) however, a court can make an order for the execution of the
judgment if two things are proved:
1. There exists exceptional circumstances warranting the execution of the
judgment.
2. On a balance of probabilities, the applicant will suffer irreparable harm if the
court does not so order and the other party will not suffer such irreparable harm.
If this is granted-it entitles the party against whom it is made to an automatic appeal
and must be treated as a matter of extreme urgency.
It is therefore not easy to get an order for execution of a judgment pending appeal
and this was clearly so intended by the Legislature.
DISPUTING THE VALIDFITY OF LAW IN THE MAGISTRATE’S COURT
o MC’s are not entitled to declare either statute law or common law to be invalid on
constitutional (or any other) grounds.
o The remedy is take the matter on appeal to the HC .
o MC decides a case as if the law is valid, but can hear evidence as to the invalidity.
Different routes an appeal may follow:
THIS DEPENDS UPON WHETHER the court of first instance is a MC or the HC.
