How To Appeal A Magistrate Court Decision In South Africa

Below is How To Appeal A Magistrate Court Decision In South Africa

Appeal Process

There are a number of steps in filing an appeal in the Supreme Court. Before you take any of these steps, please read and be familiar with the Supreme Court Practice Note SC CL 9.

The process set out below is contained in the Supreme Court (General Civil Procedure) Rules 2015 and Supreme Court (Miscellaneous Civil Proceedings) Rules 2018.

Step 1:  get the documents you need together

The documents you will need are:

Notice of Appeal

Summons – Form 46A

Affidavit

Certificate Identifying Exhibit – Form 43A

Copy of Magistrates Court Order

Any written reasons of the Magistrate

Any transcript of the Magistrates Court hearing

Step 2: draft and file your Notice of Appeal

You must get the Court’s permission for your appeal to go ahead. This is called seeking ‘leave to appeal’. The Notice of Appeal form includes this request.

In your Notice of Appeal form, you must also state each law or legal principle you believe the Magistrates Court got wrong. These are your ‘questions of law’ and are phrased as a question in your Notice of Appeal.

Each question of law needs to have ‘grounds for appeal’. Your grounds of appeal should be short explanations as to why you think the Magistrate made the wrong decision from a legal point of view, in relation to each question of law.

Step 3: get a date for a directions hearing

To get a date for your directions hearing you need to do the following:

complete a Judicial Review and Appeals List hearing date information form

complete a draft Summons (Form 46A)

email both documents to the address on the form (judicialreview@supcourt.vic.gov.au)

When the Court seals the Summons you will be given a date when the application will be heard in front of a judge.

There is a filing fee associated with the Summons – refer to Prothonotary’s Office Fees Schedule. If you intend on claiming financial hardship you will need to file a Fee Waiver Application.

Step 4: file additional documents

Within seven (7) days of filing your Notice of Appeal, you must file the following documents:

Summons – a completed Form 46A Summons which includes the date for the directions hearing. If you are appealing more than 30 days from the Magistrates Court decision, state that you are “seeking leave to appeal out of time”.

Affidavit – An affidavit sets out the facts and circumstances that you will rely on to support your appeal. Attach to the affidavit:

a copy of the Magistrates Court order you are appealing;

any written reasons the Magistrates Court prepared in relation to the decision;

any other documents you intend to rely on for your appeal, such as a Magistrates Court transcript.

Do not delay filing your affidavit if you do not have all the documents. You can always file another affidavit later.

If you are appealing more than 30 days after the original decision, briefly explain why you are applying late and any exceptional circumstances. Attach to the affidavit as an ‘exhibit’ any documents that support your request to appeal out of time, such as a medical certificate.

Exhibit: attachments to the affidavit are called ‘exhibits’. Complete a Certificate Identifying Exhibit (Form 43A) for each exhibit.

Step 5: serve documents

You need to serve sealed copies of the documents to the other parties as soon as possible, no less than 14 days before the directions hearing.

If you are serving an individual, you need to leave the documents with them in person.

If you are serving a company, you need to post them to the registered office of the company.

Please refer to Order 6 of the Supreme Court (General Civil Procedure) Rules 2015 for more detailed information on how to effect service.

Step 6: attend directions hearing

The purpose of a directions hearing is to set a timetable of the orders up to and including the hearing. It is not when you present your arguments to the Court.

You are expected to attend the hearing.

Orders will be made about what documents need to be filed and when, and what actions the parties must take. You will usually get a date for the final hearing as well.

When can you appeal a court decision in South Africa?

The application must be brought within 15 court days of the date of the decision against which leave to appeal is sought.

Within 10 court days of such application, the respondent(s) must indicate in writing whether they oppose the application and, if so, on what grounds.

What are the steps involved in appealing a decision?

Choosing an attorney to handle your appeal. Not every trial lawyer can successfully handle appeals.

Reviewing the Record on Appeal. Your attorney will obtain the Record on Appeal from the trial court clerk.

Preparing and filing the opening brief.

Oral argument.