The process of appealing a court decision is usually referred to as the leave to appeal. In South Africa, the party making an appeal can launch a request against the decision of the High Court or Supreme Court of Appeal. However, the process for leave to appeal in South African courts is different.
This article focuses on understanding the leave to appeal meaning in South Africa and how it works. So, dive right in.
Rules Regarding the Application for Leave to Appeal
Section 16 of the Special Courts Act 2013 defines an appeal against the judgment of the court in the provincial or local division of the High Court. The appeal is usually heard by the dedicated high court division or Supreme Court of Appeal. The section dealing with the High Court indicates that the final decision is given by a single judge or magistrate.
If the appeal is granted, the court is then directed to be heard by a full court or Supreme Court of Appeal. At this stage, the questions regarding conflicting issues of law are given special attention. Moreover, the party can appeal the court’s refusal of leave in regard to Section 17 2(B) of the Supreme Court of Appeal or SCA.
Application Process
The process of submitting your appeal can be time-consuming, from filing to preparing documents and maintaining records. However, it is of great significance, and you must be attentive to comply with all the time limits and protocols in all courts.
Before sending the appeal, the practitioner should assess the prospects of success for the appellant. This can help you determine whether there are reasonable prospects of you winning the case. Plus, the wording of the appeal should not be based on the effect that the previous ruling by another court was wrong, rather it should be that another court could reasonably give a different conclusion.
- Please note that if the statute you are sending an appeal has a dedicated court, an appeal will not be sent to the High Court. This happens in cases of Labor Court, Land Claim Courts, Criminal Courts, and more.
When it comes to sending the appeal, there are two options.
- First, you submit the leave of appeal at the time of judgment. In this case, the appeal application is stated verbally in the court.
- Secondly, leave of appeal is formally submitted in terms of Section 49 1(B). This is more common in the country and must be made within 15 days of delivery of reasons. The court may extend this period if a good case is demonstrated.
Typically, the application does not require an affidavit, but rather a written piece. This should have the following, the part of judgment that is appealed against, the law which is being appealed, and the grounds of appeal.
Appeals to the Supreme Court of Appeal
In case the High Court refuses the leave of appeal, the person may submit the appeal at SCA or the Supreme Court of Appeal through a petition. In this case, the application must be filed within a month of the refusal from the High Court. In addition, the application must be accompanied by the following items.
- A copy of the court order appealed against.
- A copy of the order refusing the appeal.
- A copy of the judgment delivered by the court in the first instance.
- A copy of the judgment refusing to appeal.
Note that the application made to SCA should be direct and concise. If the SCA grants your leave to appeal, you must submit a notice of appeal to the registrar of the SCA within one month of the decision. This notice must state what part of the judgment is appealed against and the new judgment in which the order was sought by the SCA.
Within three months of lodging the appeal, you will be asked to deliver some documents. Finally, the court may refuse or grant your leave of appeal to the full court of a provincial or local division, or even directly to the SCA. following this, the SCA under common law, states that the operation and execution of the decision of the leave to appeal is suspended pending the decision of the application or appeal to prevent harm to the appellant.
Final Words
The leave-to-appeal process makes sure the appeal against a court decision remains fair, and transparent, and is not abused by people at higher authority. However, it is equally important to understand the requirements for appeal. Hence, it is always best to do your research and follow the allocated protocols.