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December 2018 Issue 16
 
 
Not satisfied with the judgment. You may use appeal or review as options.

You can apply to have the judgment set aside and replaced with another judgment by a higher court.

John took a loan from IOU Bank (“creditor”) and has been diligently repaying it for three years. John ran into financial difficulties in his last year of repaying the debt and the court granted judgment against him for the outstanding amount still owed. John still feels that the amount the court judgment refers to is incorrect and wants advice on appeal and review.

  • A judgment made by a court is final and binding, however, there are options available to a person against whom judgment is granted if s/he is not satisfied with the outcome. For example, such a person can apply to have the judgment set aside and/or replaced with another judgment by a higher court. The options are to take the judgment on appeal or review.
  • Generally, judgments of lower courts (such as the Magistrate's Court) are taken on appeal or review to higher courts (such as the High Court). Judgments of the High Court can be taken on appeal or review to the Supreme Court of Appeal. The Constitutional Court is the highest court and constitutional matters can be taken to the Constitutional Court from the High Court or the Supreme Court of Appeal.
Did you know:An appeal relates to an incorrect judgment based on facts and/or law, but a review generally deals with the procedure followed to get to the judgment.

Appeal

  • An appeal relates to an incorrect decision in law or fact. For example, the court did not apply the facts correctly to the law or that the law was not correctly considered when making the judgment.
  • An appeal must be brought within 20 days (if judgment was made in the Magistrates' Court) and 15 days (if the judgment was made in the High Court) after the date of judgment.
  • An appeal is limited to what appears on the court record of the lower court. This means that the evidence provided during the original trial (such as the testimonies of witnesses, documentation handed in as evidence and so on) will be re-evaluated by the court dealing with the appeal.
  • The court dealing with the appeal can confirm, change or even set aside the original judgment. In certain instances, the matter may even be referred back to the original court for further hearing.
  • For example, John may appeal the matter if he felt that the law was not correctly applied and that the creditor did not comply with all the requirements before claiming the outstanding amount (such as to send a letter of demand as per the National Credit Act).

Review

  • A review generally relates to an irregularity in the court procedures that were followed to arrive at the judgment.
  • A review must generally be brought within a reasonable time after the date of judgment.
  • The grounds upon which a review may be brought are the following:
    • absence of jurisdiction on the part of the lower court;
    • interest in the cause, bias, malice or corruption on the part of the presiding officer (magistrate/judge);
    • gross irregularity in the proceedings; and
    • the admission of inadmissible or incompetent evidence or the rejection of admissible or competent evidence.
  • The court dealing with the review may set aside the judgment of the original court.
  • For example, John may request the judgment to be reviewed if the Judge had a substantial investment in IOU Bank and he believes that the Judge's decision was influenced and made a decision in favour of the creditor due to his financial interest.


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