Appellate Procedure in South Africa

Introduction

South African appellate procedure governs the process by which decisions of lower courts are challenged in higher courts. The appellate system is hierarchical, with the Constitutional Court at the apex, followed by the Supreme Court of Appeal (SCA), the High Courts (sitting as courts of appeal), and the Magistrates Courts. A distinction is drawn between appeal (challenging the merits) and review (challenging the legality of proceedings).

Appeal vs Review

An appeal challenges the correctness of a decision on the merits, while a review challenges the legality of the proceedings. An appeal is decided on the record of the lower court, while a review may consider procedural irregularities. The grounds of appeal include errors of law and unreasonable findings of fact. The grounds of review include bias, illegality, and procedural unfairness.

Appeals to the Supreme Court of Appeal

The SCA is the highest court of appeal in non-constitutional matters. Appeals from the High Court lie to the SCA with leave. Leave to appeal may be granted by the High Court or, if refused, by the SCA itself. The SCA hears appeals on both the record and, in limited cases, fresh evidence. The SCA may confirm, reverse, or vary the decision of the lower court.

Appeals to the Constitutional Court

The Constitutional Court is the highest court in all constitutional matters. Leave to appeal to the Constitutional Court requires that the matter raises a constitutional issue or an arguable point of law of general public importance. The applicant must show reasonable prospects of success and that the interests of justice require the appeal.

Application for Leave to Appeal

An application for leave to appeal to the Constitutional Court must comply with the Constitutional Court Rules. The application must set out the constitutional issues raised and the prospects of success. The Court may grant or refuse leave with or without a hearing. If leave is granted, the appeal proceeds on the merits.

Petitions and Procedure

If leave to appeal is refused by the lower court, an aggrieved party may petition the higher court for leave. The petition must set out the grounds of appeal and the reasons why leave should be granted. The procedure is governed by the rules of the relevant court. Time limits for filing appeals are strictly enforced.

Conclusion

South African appellate procedure provides a structured framework for challenging decisions of lower courts. The distinction between appeal and review, the hierarchical structure of the courts, and the requirement of leave to appeal ensure that appellate resources are allocated efficiently and that only matters of sufficient importance reach the highest courts.