Appeals of Court Decision Magistrates Court – Supreme Court of Appeal – Advocate Muhammad Abduroaf

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Appeals and Reviews – How does it work?

Appeals in court cases typically involve requesting a higher court to review a decision made by a lower court. For example, approaching the High Court to review the decision in the Magistrates Court matter. The process usually begins with filing a notice of appeal, outlining the grounds for the appeal and providing the necessary documents to support the case.

The appellate court will then review the lower court’s decision and determine whether any errors were made. If successful, the appellate court may either overturn the decision, order a new trial, or modify the original ruling. It’s important to seek legal assistance to navigate the complexities of the appeals process effectively. If you need legal assistance with appeals or reviews, consider reaching out to a qualified attorney or advocate for guidance.

 

Getting Legal Assistance with Appeals

If you require legal assistance or representation with your appeal matter, then feel free to contact us for assistance. The Firm Advocate, Muhammad Abduroaf, deals with these types of matters.

 

Related Post

Getting divorce within 3 days

advice-child-maintenance-child-custody-divorceIt often happens, when a marriage has irretrievably broken down, the parties are in agreement that they have to divorce. Furthermore, the parties came to an agreement regarding the propriety aspects of the marriage, care and contact of the minor children, as well as who should pay for the cost in relation to the divorce. If all the latter has been agreed upon, there is no need for the parties to wait many months to get divorced. What this article deals with is a real-life scenario where the marriage between a couple would be dissolved in the shortest possible time. In this case, three (3) days from the date of meeting their lawyer. If you don’t feel like reading this entire article, scroll down to the bottom for an illustration of a divorce finalised in 3 (three) days. Furthermore, it may become necessary for there to be a quick divorce. One such reason could be that a party is only visiting South Africa for a very short while and wants to resolve issues expeditiously. This would especially be so if the parties lived separately for a long time despite being married. Before we proceed with exploring and unpacking the question this article relates to, we will first have to look at certain basic requirements in order for parties to get divorced. This relates to the court’s jurisdiction, as well as the requirement that a marriage has broken down irretrievably. Another one is that they should be married. I guess we all knew that. [ninja_form id=72]

The jurisdiction of the divorce court

advice-child-maintenance-child-custody-divorceIt does not mean that because you got married in a specific province or town that the Court situated there has the authority to divorce you. For example, if you married in Cape Town, and relocated to Johannesburg, and live there for quite some time, then Cape Town Court will not necessarily have the jurisdiction to divorce you. The same would apply should the parties have married in Johannesburg and relocated to the United States of America, and are domiciled there. Should they wish to get divorced, they cannot get divorced in Johannesburg. This is so as the Johannesburg Court will not have jurisdiction to divorce this specific couple. Now, what determines jurisdiction? Clearly, it is not the fact that you got married in the Court’s area of jurisdiction. Let’s look at the law.

The Divorce Act

Section 2 of the Divorce Act 70 of 1979 states the following: “A court shall have jurisdiction in a divorce action if the parties are or either of the parties is-
  1.           domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or
  2.           Ordinarily resident in the area of jurisdiction of the court on the said date and have or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.
Well, there you have it. It does not mean that if you got married within the area of jurisdiction of the court, that automatically, that Court would have the jurisdiction to divorce you. You or your spouse should at least be domiciled, or resided within that honorable court’s jurisdiction for a specific period. When we refer to domicile, we basically mean that you intend the specific location to be your permanent home. This is a simple definition. Now let us move on to the second issue. That is the irretrievable breakdown of the marriage.

Irretrievable breakdown of the marriage between the parties

advice-child-maintenance-child-custody-divorceIt goes without saying, a court will not divorce a couple who is happily married. There has to be some problem in the marriage. Now let’s go straight into the law and find out when, or under what circumstances a Court of law may divorce you in South Africa.

The Divorce Act

According to section 4(1) of the Divorce Act: “A court may grant a decree of divorce on the ground of irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.” Section 4(3) of the Divorce Act then states: “If it appears to the court that there is a reasonable possibility that the parties may become reconciled through marriage counsel, treatment or reflection, the court may postpone the proceedings in order that the parties may attempt a reconciliation.” Considering the latter law, it is clear that the marriage should have broken down irretrievably, in other words, it cannot be saved. Furthermore, it should not appear to the court that reconciliation is possible. So moving forward, presuming that the court has jurisdiction and the marriage has irretrievably broken down, we can now deal with the aspect of a quick divorce. That is why you are reading this article? We shall start with what is required in order to institute divorce proceedings.

The summons commencing the divorce action

advice-child-maintenance-child-custody-divorceAs would be obvious from the foregoing, only a court of law can dissolve a marriage. Therefore, one needs to follow the legal processes in place in order for a court to deal with your matter. In the case of a divorce, the process starts with the issuing of a summons. Basically, this is a document outlining who all the parties are and what the Plaintiff (the person instituting the divorce proceedings) wants from the court. The summons would be signed by the Court Registrar who would direct the Sherriff of the Court to serve it on the Defendant (the other party to the divorce). It would also have attached to it, a particulars of claim, comprising of certain relevant information in order for the court and the other party to know what the reasons for the relief sought, or divorce is. This we deal with next.

The Particulars of Claim

In the case of a divorce summons, you will state who the parties are, when they got married, details of the minor children involved, and reasons for the breakdown of the marriage. With regard to the reasons for the breakdown of the marriage, you will state that for example, there is no longer any love and affection between the parties, and both parties wish to get divorced. advice-child-maintenance-child-custody-divorceThe latter information is stated in a document, called “particulars of claim”. This document is attached to the summons. The particulars of claim will then also outline the relief sought. For example, it will first state that you wish for a decree of divorce, and further what you wish in relation to care and contact in relation to the minor children, child maintenance, personal maintenance, the division of the joint estate, and who pays the legal fees. It is also wise for the parties to enter into a consent paper or settlement agreement. This we deal with next.

The Consent Paper or Settlement Agreement

You should stipulate in the particulars of claim exactly what you wish the court to grant you. However, what is a good idea, if the divorce is undefended, to enter into a consent paper or settlement agreement. This document basically outlines what the parties agree upon in relation to the divorce. It deals with child custody, maintenance, and the division of the joint estate if it applies. The parties would sign the consent paper or settlement agreement and it would be made an order of court should the court so grant it. Therefore, if you follow this route, the court would basically make an order stating that it grants a decree of divorce, incorporating the terms of the consent paper or settlement agreement. advice-child-maintenance-child-custody-divorceThe consent paper or settlement agreement may be entered into between the parties before divorce proceedings are instituted or after. If it is done before divorce proceedings are instituted, it is usually attached to the summons. Your prayers in your particulars of claim would basically be that you ask for a decree of divorce, incorporating the terms of the consent paper attached thereto.

What happens after the summons has been issued?

Let us presume that the summons, particulars of claim and consent paper have been drafted, and all documents have been signed. It should then be taken to a court to be issued and a case number is allocated to it. The next step would be for the summons with all the relevant documents attached thereto to be served on the defendant. This would be the case even though the divorce is agreed upon. Service of the divorce documents on the defendant would have to be done by the office of the sheriff. In other words, the sheriff would give a copy of the divorce papers to the other party, in this case, the defendant. A sheriff then provides a document called, “return of service”. Basically, it tells the court that he served the documents on the defendant. The defendant would then have a period of ten (10) working days to decide whether or not to defend the divorce. This is stated in the summons. A reason for defending would be that he or she opposes the divorce, or don’t believe the contact arrangements are in the children’s best interests. Once the ten (10) working days have passed, the divorce may be set down for hearing.

How quick can the divorce be finalised

Continuing with the example of a friendly divorce, once the ten (10) days have lapsed, and the defendant did not file a notice of his intention to defend the divorce action, the divorce can proceed on an undefended basis. The Plaintiff or the person who instituted the divorce proceedings may then set the divorce matter down for hearing on an undefended basis. If the divorce was instituted in the Western Cape High Court, it could be set-down within three (3) days. For example, if the ten (10) days have expired, The Plaintiff may file his notice of set-down the Monday before noon with the Registrar, to be heard on Wednesday. This is explained at the end of this article.

Waiving the ten (10) ten days waiting period – The waiver

This is where this article becomes interesting. It is also possible under certain circumstances, for a defendant to file a waiver. Basically, the defendant would file a document stating that he waives his right to ten (10) days to decide whether or not he wants to defend the divorce. If a waiver is filed, and the court has no issue therewith, then the divorce can take place much sooner than ten (10) days. This we explain a bit more next.

Demonstrating a quick divorce

advice-child-maintenance-child-custody-divorceConsidering the above and, ensuring that all legal processes are in place, a divorce can be finalised very quickly and in certain circumstances, within a few days. As long as the court has jurisdiction to hear the matter and the marriage has broken down irretrievably, there is no reason why the divorce can’t take a maximum period of four weeks to finalise. If, however, the divorce is urgent and undefended it is possible for the defendant to file a waiver advising the court that he has no issue with a divorce taking place within the ten (10) days given to him. His reason for this could also be that he and the Plaintiff entered into a Consent Paper and wants the divorce as well. In this case, the divorce could take three (3) days. This would apply in the following hypothetical example:

Monday:

  1.     Meet with the fast and efficient lawyer (or give us a call to refer you to one);
  2.     Draft the summons, particulars, consent paper;
  3.     Sign the consent paper and issue the summons;
  4.     Serve the summons on the defendant by the sheriff;
  5.     The defendant signs a waiver;
  6.     File the consent paper at the office of the family advocate for endorsement; and
  7.     Ensure the court file is in order and set the matter down before noon.

Tuesday:

  1.     Collect the endorsed consent paper from the office of the Family Advocate.
  2.     Meet with your lawyer, or one of our recommended lawyers, to prepare you for court the next day.

Wednesday:

  1.     Be at Court early.
  2.     Get divorced.
advice-child-maintenance-child-custody-divorce
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I have to appear in the Cape Town Maintenance Court for a maintenance inquiry. How should I prepare for it?

If you need to claim maintenance from another party, you can do so through the maintenance courts. This applies whether you are claiming maintenance for yourself or for your minor children. The procedure is generally the same in both cases. It is important to be well-prepared when going to court, and this article will guide you through the necessary steps.

Approach the Correct Court

Many people assume they can go to any court to claim maintenance, but that is not correct. You need to approach the maintenance court located in the area where you live or work. The maintenance court is typically housed within the magistrates’ court. We recommend checking with your local police station (SAPS) to find out the location of your nearest magistrates’ court.

Download the Maintenance Application Form

The process begins with filing a maintenance application at the court. You can download the maintenance application form (Form A) from the official website (Department of Justice). Make sure you understand the form and complete it as thoroughly as possible. It’s a good idea to draft your responses on a separate page or spreadsheet before filling out the actual form.

Gather Proof of Your Expenses

Courts require proof to support your claims. When completing the maintenance application form, be sure to collect evidence for the expenses you list. For instance, if you state that you spend R500 on groceries per month, keep the corresponding receipts from the grocery store as documentation. This proof is essential for other expenses like rent, education, and clothing. Maintain and update your proof of expenses until your case is finalized.

Conduct Your Own Investigation and Preparation

When applying for maintenance, the other party might claim they cannot afford support or may not be employed. Therefore, it is important to do your own research and prepare in advance. You may look for information online or check social media to gather relevant evidence regarding the other party’s financial situation. Phoning around may also help.

Request the Court to Appoint a Maintenance Investigator

The maintenance court has the option to appoint a maintenance investigator. We recommend utilizing their services, as they can assist in obtaining bank statements, conducting credit checks, and contacting employers for necessary information.

Stay Active in Your Case

Finally, remain engaged in your case. Pay attention to what the other party claims, and continue your research. Familiarize yourself with the relevant laws, read legal articles, and stay informed. Being well-prepared will help you present your case effectively in court and increase your chances of achieving a favorable outcome.

Posted on by Telelaw

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