Summary
Summary Unit 7 LCVP
- Course
- LCVP4814 (LCVP4814)
- Institution
- University Of The Freestate (UFS)
This document makes it easier to understand the work. Set out neatly.
[Show more]
Content preview
1APPEALS
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.
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through EFT, credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying this summary from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller aldavorster. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy this summary for R80,00. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
57413 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy summaries for 14 years now