The civil appeal record: A dilemma in the making?

February 1st, 2023
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The inclusion of unnecessary pages in a civil appeal record caused the Supreme Court of Appeal (SCA) recently to repeat its warning to practitioners to apply their minds when assembling civil appeal records (see Minister of Police v Mzingeli and Others (SCA) (unreported case no 115/2021, 5-4-2022) (Hughes JA (Petse DP, Van der Merwe JA, and Tsoka and Makaula AJJA concurring)).

The extent of the problem

Examples of deplorable civil appeal records are plentiful in our jurisprudence:

  • In Government of the Republic of South Africa v Maskam Boukontrakteurs (Edms) Bpk 1984 (1) SA 680 (A), approximately 350 pages of invoices and statements were found to be unnecessary.
  • In Salviati & Santori (Pty) Ltd v Primesite Outdoor Advertising (Pty) Ltd 2001 (3) SA 766 (SCA), the inclusion of documents not referred to in the lower court, annoyed the court.
  • In Rabie v De Wit 2013 (5) SA 219 (WCC), approximately 70% of the appeal record was unnecessary.
  • The inclusion of, inter alia, the transcribed versions of the oral arguments in the court a quo, irked the court in Nkengana and Another v Schnetler and Another [2011] 1 All SA 272 (SCA).
  • In Muller v De Wet NO and Others 2001 (2) SA 489 (WLD), only about 100 of the 694 pages, were found to be necessary.
  • In Jeebhai and Others v Minister of Home Affairs and Another 2009 (4) SA 662 (SCA), only three of the 12 volumes were necessary. The appeal record was in a ‘lamentable state’ due to the ‘deplorable, flagrant and indeed intolerable conduct’ of the practitioner according to the court.
  • A mathematician, deeply versed in the chaos theory would, according to the court, be required to understand the appeal record in Premier, Free State, and Others v Firechem Free State (Pty) Ltd 2000 (4) SA 413 (SCA).
The rationale for a proper civil appeal record

The rationale for properly compiling a civil appeal record is obvious:

  • Unnecessary pages cause wasted expenditure, prejudices judges’ time management, and increases storage costs (see Muller).
  • In Kham and Others v Electoral Commission and Another 2016 (2) SA 338 (CC), the court warned that unnecessary pages aggravate the burden of reading, while the incorrect exclusion of documents could contribute to courts finding on a set of facts different to that proven in the court a quo.
  • An improper appeal record causes ‘unnecessary effort, distraction, vexation and confusion’ (see Jeebhai).
The reasons for the persistence of the problem

The question is: Why does this problem continue to persist, almost 40 years after Maskam Boukontrakteurs? The reasons appear to us to be multi-levelled:

  • In ‘What irritates judges?’ (2001) Advocate 24, Judge Harms wrote that the number one rule to keep appeal judges happy is to know the rules, including rules regarding the civil appeal record. In general, he says, practitioners are not conversant with the rules and do ‘not bother to determine’ what they are. His advice is that practitioners should read the rules on at least two occasions, firstly when applying for leave to appeal and then again when filing the notice of appeal. Yazbek also urges practitioners to acquaint themselves with the rules (Peter Yazbek ‘Going on appeal’ 2001 (Nov) DR 38).
  • Practitioners should note that a lack of knowledge of rules is in breach of the clause 3.13 of the Code of Conduct of Legal Practitioners, Candidate Legal Practitioners and Juristic Entities, since practitioners must ‘remain reasonably abreast of legal developments, applicable laws and regulations, legal theory and the common law, and legal practice in the fields in which they practice.’
  • In Salviati the court found that the practitioner failed to apply his mind when compiling the civil appeal record.
  • In Maskam Boukontrakteurs the court warned that the failure to include only necessary documents in the civil appeal record amounts to a breach of the fiduciary duty towards the client.
  • Judge Harms (op cit) also explains, on a lighter note, that it is practitioners’ attitude to punish the judges of appeal by letting them read unnecessary documents. These practitioner’s intention is to ‘Laat die … lees,’ (Let the … read), where the omitted word does not leave anything to the imagination.

Lack of knowledge of the rules and the failure to apply their minds appear to be the main reasons for sub-standard civil appeal records. However, this article investigates whether the rules are vague and if so, whether that could contribute to non-compliance with the rules regulating civil appeal records. The article examines the rules of civil appeals to the SCA, the Full Bench of a division of the High Court and to the High Court (the latter being from the magistrates’ court or regional court).

Before compiling a civil appeal record, first, sort in chronological order, all the pleadings, notices, exhibits, transcriptions, judgments, reasons, and any other documents exchanged in the matter in the court(s) a quo (this bundle, herein referred to as the consolidated bundle, will undergo changes before eventually becoming the civil appeal record).

Civil appeals to the SCA
  • Step 1

Remove all documents not essential for the determination of the appeal (see r 8(6)(j) of the Rules Regulating the Conduct of the Proceedings of the Supreme Court of Appeal (the SCA rules). In Mzingeli the SCA took issue with the filing of unnecessary documents.

  • Step 2

Unless essential for determination of the appeal, in terms of r 8(6)(j) of the SCA rules, the practitioner must exclude from the consolidated bundle –

  • the opening address;
  • the argument;
  • formal documents;
  • discovery affidavits and the like;
  • identical duplicates of any document; and
  • colour photographs.
  • Step 3

In terms of r 8(6)(h) of the SCA rules, include, if not already included the following –

  • the judgment and order appealed against;
  • the judgment and order giving leave to appeal; and
  • the notice of appeal.

Include colour photographs, but only after requesting the respondent for their inclusion (see r 9(a)(ii) of the SCA rules). It is advisable to include them in the event of a dispute since the appropriateness might be the subject of debate at the hearing of the civil appeal.

Include the court a quo’s registrar’s certificate that the civil appeal record is correct (see r 8(5) of the SCA rules).

Civil appeals to the Full Bench of the High Court
  • Step 1

Exclude all formal and immaterial documents from the consolidated bundle (see r 49(7)(a) of the Uniform Rules of Court).

  • Step 2

The practitioner may exclude the following documents in terms of r 49(9) of the Uniform Rules, if they have no bearing on the point in issue in the civil appeal –

  • exhibits; and
  • annexures.

The practitioner may exclude in terms of r 49(9) of the Uniform Rules immaterial portions of lengthy documents.

  • Step 3

Include, if not already included the following:

  • In terms of r 49(9) of the Uniform Rules, the signed agreement between the parties to exclude exhibits, annexures, and immaterial parts of lengthy documents. If not agreed on, it is advisable to include the documents setting out the dispute since the issue of the documents’ costs may arise during the civil appeal.
  • A complete index of the documents remaining in the consolidated bundle (see r 49(7)(a) of the Uniform Rules).
  • The list of excluded formal and immaterial documents (see r 49(7)(a) of the Uniform Rules).
Civil appeals to the High Court
  • Step 1

Exclude all documents that are unnecessary for the hearing of the civil appeal (r 50(7)(c) of the Uniform Rules).

  • Step 2

In terms of r 50(8)(a) of the Uniform Rules, the practitioner must exclude the following documents, unless they affect the merits of the civil appeal

  • subpoenas;
  • notices of enrolment;
  • consents to postponements;
  • schedules of documents;
  • notice to produce or to inspect; and
  • any other document of a formal nature.

Unless they have a bearing on the point in issue on appeal, exclude from the consolidated bundle – in terms of r 50(8)(b)(i) of the Uniform Rules – the following:

  • any exhibit; and
  • any portion of the record.
  • Step 3

Include, if not already included the following:

  • A complete index of the (remainder) of the consolidated bundle (see r 50(7)(c) of the Uniform Rules).
  • A certificate of correctness by the person who prepared the civil appeal record (see r 50(7)(c) of the Uniform Rules).
  • A list of excluded documents referred to in r 50(8)(a) of the Uniform Rules.
  • The written agreement between the parties to exclude exhibits or part of the record which have no bearing of the point in appeal (see r 50(8)(b)(ii) of the Uniform Rules).

Discussion

The test for inclusion of documents, set out in the respective first steps above, differ from essential (SCA), to material (Full Bench), to necessary (High Court). In the Constitutional Court, practitioners may only include in the record documents that are relevant to the issues to be determined on appeal (see r 20(1)(b) of the Constitutional Court Rules). There exists no logic reason for setting different tests or expressing them differently, in circumstances where all the tests surely aim to achieve the same object; to place the minimum documents before the court of appeal required to pronounce on the correctness of the court a quo’s order. The ‘essential test’ set in the SCA is preferable because all essential documents will in any event be material and necessary.

The documents specifically earmarked for exclusion differ from court to court, a fact which is obvious when comparing the various second steps. Again, the reason for the difference is unclear.

The dilemma explained with a practical example

The dilemma facing legal practitioners is amplified by the following example: The plaintiff in an unlawful arrest and detention matter appeals to the High Court against the dismissal of his claims by the magistrate. The only issue on appeal is whether the arresting officer entertained a suspicion, which rested on reasonable grounds.

  • The summons and particulars of claim are clearly necessary and meet the first threshold. However, may the practitioner exclude the summons, a formal document?
  • On the last page of the plea appears only the acknowledgement of receipt. The plea, as one document, is clearly necessary. The question arises whether the practitioner may exclude the last page thereof?
  • May the practitioner exclude the transcribed opening addresses in terms of r 50(8)(b)(i) of the Uniform Rules, they being part of the record with no bearing on the point in issue? In the SCA, the exclusion thereof is mandatory (see r 8(6)(j) of the SCA rules).
  • May the practitioner exclude the transcription of the judgment dismissing the application for absolution from the instance?
  • May the practitioner exclude the transcribed version of the opposed application for postponement since r 50(8)(a) of the Uniform Rules only deals with agreed postponements?
  • May the practitioner exclude the transcriber’s certificate? The rules are silent in this regard.
  • The court a quo accepted into evidence the appellant’s warning statement to the police. The statement consists of 12 pages and is relevant because the appellant chose to remain silent, a fact also admitted to by the appellant in the court a quo. The practitioner may not exclude the exhibit in terms of r 50(8)(b)(i) of the Uniform Rule because it is relevant to the dispute. May the practitioner exclude it because of the admission thereof?
  • In a civil appeal to the Full Bench, may the practitioner exclude parts of the statement on the basis that they constitute immaterial parts of a lengthy document (r 49(9))? In any event, when does a document become a lengthy document?
  • The court a quo accepted into evidence the prescribed letter of demand. The same document is an attachment to the particulars of claim. In the SCA, the practitioner must exclude identical documents. The scenario in the High Court is unclear.
  • In terms of r 7(2) of the Uniform Rules, an appellant must file a power of attorney when requesting a date for hearing of the civil appeal, unless the State Attorney is the instructing attorney. Rule 7(2) does not oblige the inclusion of the power of attorney but read with r 50(4)(a) it indirectly instructs the appellant to file the power of attorney with the registrar. Must the power of attorney form part of the appeal record? (In civil appeals to the full bench r 49(6)(a) indirectly instructs the filing of the power of attorney).

In terms of r 51(10) of the Rules Regulating the Conduct of the Proceedings of the Magistrates’ Courts the registrar of the regional court or the clerk of the court must send a certified copy of the civil appeal record to the High Court. In practice, however, this does not happen. Must the appellant include this certificate in the civil appeal record?

Conclusion

Practitioners are substantially to blame for improper civil appeal records, but their plight might become somewhat alleviated with the introduction of more detailed and explicit rules, like those of the SCA which can be improved by and synchronised with, those of the other courts. The clearer our rules become the more concise and better organised our resultant civil appeal records.

Danie Schutte BProc (RAU) LLB (UNISA) MPhil (UP) is a legal practitioner at Karien Schutte Attorneys in Middelburg. Llewelyn Curlewis BLC (UP) LLB (UP) LLM (UP) LLM (UNISA) LLM (cum laude) (UP) LLD (UP) is a legal practitioner and a Senior Lecturer at the University of Pretoria.

This article was first published in De Rebus in 2023 (Jan/Feb) DR 11.

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