Appeal

Question 1

What does the Superior Courts Act say about appeals?

Answer 1

That only a decision can be appealed against.

Question 2

What is a decision?

Answer 2

A determination which is:
1. Final in effect and not susceptible to alteration by the court of first instance.
2. Definitive of the rights of the parties (definitive and distinct relief)
3. Has effect of disposing of at least a substantial portion of the relief claimed in the main proceedings

Question 3

What decisions are appealable in the MC?

Answer 3

1. Any judgment described in s48 of the MCA
2. Any rule or order having the effect of a final judgment, including any order relating to execution and debt-collecting procedures, and any order as to costs.

Question 4

What are the judgments under section 48 of the MCA?

Answer 4

Plaintiff, defendant, absolution from the instance, costs, and an order suspending the taking of further proceedings upon a judgment.

Question 5

What provision grants a right to appeal in the MCA?

Answer 5

Section 83.

Question 6

When may the right to appeal be forfeited?

Answer 6

Ito s82 of the MCA, when the parties lodge an agreement in writing with the court that the decision shall be final.

Question 7

What is the effect of a pending appeal on the judgment of the lower court?

Answer 7

Suspended pending the decision of the appeal.

Question 8

How can the suspension of the judgment pending appeal be circumvented?

Answer 8

A special application for permission ito section 18.

Question 9

Ito section 18 SCA when may a court make an order allowing execution of the order?

Answer 9

If there is proof of the following:
1. Existence of exceptional circumstances warranting the operation and execution of the judgment pending the outcome of the appeal
2. On a BOP, the party applying will suffer irreparable harm if the court does not so order and the other party will not suffer irreparable harm if the court so orders.

Question 10

When appealing from the MC to the CC when must leave to appeal be lodged?

Answer 10

Within 15 days after the order ebign appealed against has been handed down.

Question 11

What are the shortcut appeals directly to the CC from the MC?

Answer 11

1. Direct access
2. Declarations of invalidity in constitutional cases
3. Leapfrog to the CC

Question 12

How do appeals work from the HC?

Answer 12

1. Appeal to same judge, if fails then petition to President of SCA for leave to appeal
2. Appeal in HC heard by full court of the division
3. If full court denied appeal, then apply for special leave to appeal to SCA by way of an application
4. Appeal in SCA is heard by 5 judges unless President of SCA makes it 3 judges.
5. Leave to appeal SCA decision obtained from CC.

Question 13

What happens if the judges differ to the extent there is no majority judgment?

Answer 13

Matter must be heard de novo before a freshly constituted court.