Revised checklist for leave to appeal to the SCA

By Sechaba Mohapi

This contribution is a revision of an earlier contribution in 2012 (Aug) DR 20, made necessary by the subsequent promulgation of the Superior Courts Act 10 of 2013 (the Act) that came in to effect on 23 August 2013 as well as the consequent Supreme Court of Appeal (SCA) Practice Direction 2014 (the direction). More importantly, this revision is necessary due to persistent problems experienced at the SCA with applications for leave to appeal and criminal petitions. 

Practice in the SCA is still generally regulated by the Act, the rules Regulating the Conduct of the Proceedings of the Supreme Court of Appeal of South Africa of 1998 (the rules) and the SCA direction. However, despite the availability of these prescripts, problem areas remain. It is, therefore, worthwhile to have a basic checklist highlighting the important and often overlooked aspects of SCA practice.

Changes brought by the Act

For purposes of this article, the most important change brought about by the Act is that the timeframe for lodging applications for leave to appeal or petitions has been changed from the old 21 days to one month after refusal of leave by the court a quo. Previously, applications had to be brought within 21 calendar days and the now replaced SCA Practice Direction of 2011 provides, in para 2, that where applications for leave to appeal were brought within 21 ‘court days’ as opposed to calendar days, it was not necessary to apply for condonation. The change brought by the Act is, therefore, a welcome one as it brings into uniformity with the rest the timeframes in the rules that of lodging applications for leave to appeal or petitions. Obviously, this also necessitated a change in the SCA practice directions that have essentially remained the same, save to omit the previous provision that accommodated applications lodged within 21 court days.

SCA leave to appeal checklist

This checklist is not intended to be a comprehensive guide to SCA practice, and it does not deal with issues pertaining to the merits or demerits of applications for leave to appeal, as this is regarded as falling within counsel’s province in the division of legal practice. The checklist is concerned more with points of practical procedure relating to applications for leave to appeal to the SCA. Nevertheless, this does not detract from attorneys and their duties and responsibilities towards their clients of knowing something of the test formulated, crystallized and applied by the courts in determining whether or not to grant leave to appeal. For the attorney, this is a simple matter of looking at the relevant commentary on what is appealable in DE van Loggerenberg and PBJ Farlam (eds) Erasmus: Supreme Court Practice at A1–42 – A1–52B, or in DR Harms Civil Procedure in the Superior Courts para C1.7 – C1.33, and for criminal petitions E du Toit et al Du Toit: Commentary on the Criminal Procedure Act at ch 31-11 – ch 31-12.

Applications for leave to appeal in general

Applications for leave to appeal to the SCA are brought on notice of motion supported by affidavit (r 1(1) of the rules). With regards to the form of the application for leave to appeal, answer and reply, the rules prescribe that they must be ‘clear, succinct and to the point’; and that they must fairly furnish all information necessary to enable the court to decide on the application, and they must deal with the merits only insofar as is necessary for purposes of explaining and supporting the grounds on which leave to appeal is sought or opposed (r 6(5) of the rules). 

It is important to note on the question of the form of applications for leave to appeal to the SCA that they are not to be treated in the same manner as applications for leave to appeal in the High Court or with ordinary motions for that matter. 

No other annexures other than those mentioned in r 6

Of particular concern to the judges of appeal is that far too often it is the case that to most applications for leave to appeal lodged at the court, is usually attached unnecessary annexures other than the only essential annexures thereto, namely the judgments and orders of the court a quo on the merits and refusing leave to appeal. 

From the experience of a Bloemfontein attorney and the Office of the SCA Registrar, applications with unnecessary annexures are accepted under protest because of the explanation usually submitted by the instructing attorneys that such applications have been drawn by counsel, the assumption being that the greatest care has been taken in drawing such applications. So persistent is the problem with applications that offend the sub-rule that the judges of appeal are considering to make a direction that a certificate of compliance with r 6 be signed and lodged together with applications for leave by the attorneys who lodge them (similarly to the certificate of compliance that is lodged together with the Practice Note and Heads of Argument in terms of r 10A for appeals). 

Since 2006 when the letter was circulated, the SCA has seen a further increase of applications for leave to appeal, which has further added to the ‘extra-forensic workload’ of the judges of appeal. For instance, over 1 000 applications and petitions were registered for the first time in 2013 and this has been the average number of applications for leave to appeal registered at the SCA ever since then. For the aforementioned reasons, it is hoped that this contribution assists more practitioners to ensure that applications lodged at the SCA do not offend r 6. 

Checklist

Applications for leave to appeal	Provision	
Must be brought within one month after refusal of leave by court a quo (date of judgment or order refusing leave).	s 17(2)(b)	
NB: Dies non (16 December – 15 January) are not applicable to applications as period for lodging is not governed by rules (see r 1(2)(b) referring to ‘period on terms of these rules’).	
Must be served on respondent(s) and optionally on Registrar of court a quo.	Uniform Rules r 4	
Must be lodged with Registrar of SCA in triplicate (original plus two copies).	r 6(1)	
If longer than ten pages, must be printed and copied double-sided.	direction para 3(a)	
Should not exceed 30 pages in length.	r 6(5)(b)(iii)	
Annexure of judgment and court order of court a quo appealed against (in criminal cases the judgment must include on conviction and sentence).	Provided that Registrar may extend the period for the filing of a copy of the judgment or judgments for a period not exceeding one month on written request.	r 6(2)
	
Annexure of judgment and court order refusing leave to appeal.		r 6(2)
	
Binding by plastic ring-binder is appreciated by court.	Practice	
Where judgment and order refusing leave cannot be obtained, a letter from Registrar of court a quo certifying date of such Order will be sufficient.	direction para 1	
Where it is not possible to lodge original application on last day, copy is sufficient, but the original must be lodged within ten days thereafter.	r 4(1)(b)	
NB: Where it is not possible to lodge copy of application on last day for lodging, application for condonation must be done, failing which application lapses.	r 12(6)	
Answer	
Must be served and lodged within one month after service of the application.	r 6(3)	
Lodged in triplicate (original plus two copies).	r 6(3)	
If longer than ten pages, must be printed and copied double-sided.	direction para 3(a)	
Should not exceed 30 pages in length.	r 6(5)(b)(iii)	
Binding by plastic ring-binder is appreciated by court.	Practice	
Where it is not possible to lodge original affidavit on last day, copy is sufficient, but the original must be lodged within ten days thereafter.	r 4(1)(b)	
Where it is not possible to lodge copy of affidavit on last day for lodging, application for condonation must be done for non-compliance with rules, failing which a determination may be made in the absence of the answer.	r 12(6)	
Reply	
Must be served lodged within ten days after service of answer.	r 6(4)	
Must strictly deal with new matters raised in answer.	r 6(4)	
Lodged in triplicate (original plus two copies).	r 6(3)	
Should not exceed ten pages in length.	r 6(5)(b)(iii)	
Binding by plastic ring-binder is appreciated by the court.	Practice	
Where it is not possible to lodge original affidavit on last day, copy is sufficient but the original must be lodged within ten days thereafter.	r 4(1)(b)	
Where it is not possible to lodge copy of application on last day for lodging, application for condonation must be done for non-compliance with rules, failing which a determination may be made in the absence of the reply.	r 12(6)	

Sechaba Mohapi LLB (NWU) is a law researcher at the Supreme Court of Appeal in Bloemfontein.