The civil appeals process from the Magistrates’ Court to the Gauteng Local Division

Introduction

Section 1 of the Magistrates’ Court Act 32 of 1944 (“the Magistrates’ Court Act”) says that a “court of appeal” is the High Court that the appeal from the Magistrates’ Court lies with, in other words, the High Court that has jurisdiction over the appeal from the Magistrates’ Court.

Noting an appeal

Decisions that are appealable are those set out in section 83 of the Magistrates’ Court Act. If the matter is appealable, of utmost importance is starting the process by way of noting an appeal, which is a process that is regulated by Rule 51(4) of the Magistrates’ Court Rules. This rule requires that the party intending to appeal the decision of the Magistrates’ Court must give the respondent notice of his intention to do so.

The appellant is then required to put up security for the respondent’s costs of appeal, being an amount of R1000, 00. Once security has been put up, the appellant will have perfected the noting of an appeal in terms of Rule 51(4) and this will successfully stay the effects of any proceedings stemming from the judgement, such as a writ against the property of the appellant.

Prosecuting an appeal

Once the noting of an appeal has been perfected there is no longer a need to consider the rules of the Magistrates’ Court as the prosecution of appeals is dealt with in the rules of the appeal court.

Uniform Court Rule 50 deals with “Civil appeals from Magistrates’ Courts” and it says that the appeal must be prosecuted within 60 days after the noting of the appeal. On the other hand, the appellant must prosecute the appeal within 40 days of noting the appeal. The 60 – day time period is put in place to ensure that if the appellant fails to prosecute the appeal, the respondent may do so before the 60 days lapses. The prosecution of an appeal simply means that one must apply for a hearing date within the above time limits. 

Applying for a hearing date

 In order to apply for a hearing date, one must comply with Chapter 7 of the practice manual of the Gauteng Local Division, Johannesburg. 

Chapter 7 of the practice manual says that when applying for a hearing date, one must, at the same time submit to the registrar of the court (i) A complete record, indexed and paginated; and (ii) The appellant’s heads of argument and practice note. All of these documents are collectively referred to as the “appeal documents”.

What is meant by “a complete record” is explained in Uniform Court Rule 50 (7) (a) to (d), while Rule 50 (8) determines what documents ought to be omitted from the record. Furthermore, instructions dealing with the heads of argument, the practice note, and the record are dealt with in paragraphs 6, 7, 8, 9, 10, and 11 of Chapter 7 in the practice manual. 

Upon applying for a hearing date, the registrar will issue an acknowledgement of receipt of the appeal documents, thereafter; the appeal documents and a copy of the registrar’s acknowledgment of receipt must be served on the respondent. This service must state that the respondent is to file their heads of argument and practice note with the registrar of the court no later than 30 court days after service. The appellant will need to file proof of such service with the registrar within 5 days.

Once the respondent has filed their heads of argument and practice note, and once the 30 – day period has been exhausted, the appellant must apply to the Registrar to set the matter down, whereupon the registrar will issue the appellant with a notice of set down which must be served on the respondent. The appellant is then required to file proof of such service within 5 days. 

Technological advancements in the appeal process

As mentioned above, when appeals are at the prosecution stage, the rules of the High Court having jurisdiction apply. In this article the Gauteng Local Division is the court having jurisdiction and when litigating in this court it is important to have regard to directive 2 of 2022, which is the revised consolidated directive on court operations in the Gauteng division of the High Court, issued on 08 July 2022 (“the directive”). 

The relevance of this directive is that when the application for a hearing date for the appeal is applied for it is done by creating a case online and uploading all the appeal documents on the online platform. The appeals registrar, who would be invited on the online profile, would then complete the date application process by responding with an acknowledgement of receipt of the appeal documents. This is the receipt, along with the appeal documents that must be served on the respondent and all other processes that follow should also be filed on the online platform.

It is however important to note that, in terms of paragraph 267 to 271 of the directive service must still be effected in terms of Rule 4 and 4A of the Uniform Rules of Court, therefore, one may not serve the other side by uploading the documents onto the online platform. 

On the other hand, Uniform Court Rule 3 is done away with when it comes to filing because paragraphs 267 to 271 relax the requirement to file notices and proof of service at the courthouse by allowing parties to file process on the online platform. 

Adherence to time periods

Adherence to all of the time periods stipulated above is of great importance because in terms of paragraph 5 of the practice manual, once the parties have obtained an appeal date, they may not postpone the hearing without leave of the Deputy Judge President or the Judges to whom the appeal has been allocated for hearing.

Of even greater importance is ensuring that the appeal is prosecuted in time because failure to do so will result in the appeal lapsing. In such an instance, reviving the appeal would require an application for condonation, which is not a rubber stamp process as this requires proper reasons to be put before the court explaining the reason(s) for the default. 

Comment

This was a short note setting out how to go about pursuing an appeal from the Magistrates’ Court to the Gauteng Local Division. 

Although what has been laid out above seems simple, this process is usually marred by the inaccurate application of the procedures to be followed, often resulting in costs orders to be borne by clients and at times legal practitioners. 

We hope this article sheds some light on the process for both legal practitioners and clients alike. 

Mabhelandile Ntuli Attorneys are registered tax practitioners who provide assistance on a range of tax matters. We approach tax and legal issues with certainty.