1 Introduction
Appeals to the Supreme Court of Appeal (“SCA”) are governed by a procedural framework that demands precision, foresight, and strict adherence to time-limits and formal requirements. Practitioners who approach SCA litigation as a mere continuation of proceedings in the court a quo do so at considerable risk. The appellate process is distinct, rule-driven, and unforgiving of laxity.
The Rules, introduced to improve procedural efficiency and uniformity, have progressively reshaped appellate practice. Experience has shown that non-compliance is no longer met with indulgence. Instead, practitioners face rejected filings, lapsed appeals, adverse costs orders, and, in egregious cases, personal liability for costs. The attached article underscores this reality by demonstrating how the Registrar and the Court enforce compliance in practice
2 The Registrar as Gatekeeper of Compliance
A defining feature of SCA practice is the enhanced role of the Registrar. The Registrar is not a passive administrator but an active enforcer of procedural discipline. Documents that do not comply with the Rules may simply be refused for filing. This power is routinely exercised, particularly where time-limits, annexures, or formatting requirements are disregarded.
While limited flexibility exists, such as the conditional acceptance of copies where deadlines are imminent, this leniency is tightly circumscribed. The obligation to follow up with original documents within the prescribed period remains absolute. Practitioners cannot rely on informal practices that may have prevailed in earlier years; compliance is now assessed strictly against the Rules themselves.
3 Authority to Act and the Perils of Assumption
Although a power of attorney is not ordinarily required to be filed at the outset, an attorney’s authority to act is not presumed where it is challenged. Once authority is placed in dispute, the Rules impose a clear obligation on the attorney concerned to regularise their mandate within a defined period.
This aspect of appellate practice is frequently overlooked, particularly where applications are prepared urgently or by attorneys acting on behalf of absent or foreign litigants. Failure to allege authority expressly, especially where an attorney deposes to an affidavit, can result in outright rejection of the application. The Registrar is entitled to insist on clarity, and the Court has repeatedly endorsed this insistence.
4 Applications for Leave to Appeal: Formalities That Matter
Applications for leave to appeal to the SCA are subject to a tightly regulated process. The timeframe for lodging such applications is short and strictly calculated in accordance with statutory provisions. Equally important is the requirement that specified documents accompany the application.
The omission of any required attachment. particularly the order refusing leave to appeal in the court a quo, renders the application defective. Notably, the Registrar no longer bears responsibility for alerting practitioners to missing documents. The burden of completeness rests squarely on the applicant’s legal representatives. Extensions may be granted in limited circumstances, but only upon request and never as a matter of course.
5 Affidavits, Pagination, and Procedural Economy
The Rules governing affidavits in leave applications impose both substantive and formal constraints. Answering and replying affidavits must be filed within stipulated periods, must be lodged in duplicate where required, and must be confined to permissible subject-matter. Replying affidavits, in particular, are restricted to new matters raised in response.
Equally important are technical requirements such as pagination and separation of documents. Improperly paginated or merged papers create administrative inefficiencies and attract the Registrar’s scrutiny. What may appear to be minor clerical issues often become decisive procedural obstacles at appellate level.
6 Notices of Appeal and Cross-Appeal: Precision Over Generality
The Rules governing notices of appeal reflect a deliberate shift toward procedural clarity. A notice of appeal must do more than signal dissatisfaction with the judgment below; it must identify precisely which portions of the order are challenged and articulate the respects in which variation is sought.
This requirement applies equally to cross-appeals and is enforced stringently. Notices that are vague or overly broad undermine the purpose of appellate adjudication and risk being struck as defective. Moreover, the obligation to lodge notices with both the SCA and the court a quo introduces an additional compliance step that cannot be overlooked.
7 The Record on Appeal: A Minefield for the Unwary
The preparation and lodging of the appeal record remains one of the most technically demanding aspects of SCA litigation. The Rules prescribe detailed requirements concerning timelines, formatting, binding, volume size, and the number of copies to be produced.
Failure to lodge the record within the prescribed period results in the automatic lapsing of the appeal. Extensions are limited, and any further indulgence requires a formal application for condonation supported by adequate reasons. Importantly, the responsibility for the quality and relevance of the record lies with the attorneys, not the transcribers.
The SCA has repeatedly emphasised that irrelevant, excessive, or poorly prepared records constitute a serious breach of professional duty. Where such breaches occur, the Court has not hesitated to penalise practitioners personally, including by ordering costs de bonis propriis.
