1 Introduction
The Supreme Court of Appeal (“SCA”) has cautioned practitioners against the indiscriminate compilation of civil appeal records. In Minister of Police v Mzingeli and Others (SCA) (unreported case no 115/2021, 5 April 2022), the Court reiterated that appeal records must be compiled with care, discernment, and an appreciation of their purpose. The warning was not novel. Rather, it formed part of a long and consistent line of authority condemning the inclusion of superfluous material in appeal records.
Despite decades of judicial admonition, the problem persists. Appeal records continue to be bloated with documents that serve no forensic purpose, burden judicial officers, inflate costs, and undermine the efficient administration of justice. This article revisits the jurisprudence on excessive appeal records, examines the underlying rationale for strict compliance, and considers whether ambiguity in procedural rules may contribute to ongoing non-compliance.
2 A Persistent Judicial Complaint
South African appellate courts have, over many years, expressed increasing frustration with poorly curated appeal records. Illustrations of this problem are abundant in reported decisions.
In Government of the Republic of South Africa v Maskam Boukontrakteurs (Edms) Bpk 1984 (1) SA 680 (A), the Appellate Division found that hundreds of pages of invoices and statements added no value to the appeal. Nearly two decades later, the SCA in Salviati & Santori (Pty) Ltd v Primesite Outdoor Advertising (Pty) Ltd 2001 (3) SA 766 (SCA) expressed irritation at the inclusion of documents that had not even featured before the court a quo.
More recent examples confirm that little has changed. In Rabie v De Wit 2013 (5) SA 219 (WCC), the majority of the record was found to be unnecessary. In Nkengana and Another v Schnetler and Another [2011] 1 All SA 272 (SCA), the Court criticised the inclusion of transcribed oral argument. In Muller v De Wet NO and Others 2001 (2) SA 489 (WLD), fewer than one-sixth of the record was considered relevant. Particularly scathing remarks were made in Jeebhai and Others v Minister of Home Affairs and Another 2009 (4) SA 662 (SCA), where the Court described the state of the record as intolerable and imposed serious consequences on the practitioner concerned.
Perhaps the most vivid judicial expression came in Premier, Free State, and Others v Firechem Free State (Pty) Ltd 2000 (4) SA 413 (SCA), where the Court remarked that only someone versed in chaos theory could decipher the record. These cases demonstrate a consistent judicial stance: excessive records are unacceptable.
3 Why Proper Appeal Records Matter
The rationale for limiting appeal records to what is strictly required is neither technical nor pedantic. It is grounded in practical, ethical, and institutional considerations.
Unnecessary documentation increases litigation costs and wastes resources. It burdens judges with irrelevant material, complicates case preparation, and undermines efficient time management. In Muller, the Court explicitly linked excessive records to wasted expenditure.
From a fact-finding perspective, improper records pose an additional risk. In Kham and Others v Electoral Commission and Another 2016 (2) SA 338 (CC), the Constitutional Court cautioned that excessive material exacerbates the reading burden, while the incorrect exclusion of documents may distort the factual matrix on which appellate decisions are made.
The SCA has further recognised that defective records cause distraction, confusion, and procedural frustration. In Jeebhai, the Court emphasised that such conduct interferes directly with the administration of justice.
4 Why the Problem Endures
Given the longevity of judicial warnings, the continued prevalence of excessive appeal records demands explanation. Several contributory factors emerge.
First, there remains a widespread lack of familiarity with appellate rules. As Judge Harms observed in What irritates judges? (2001) Advocate 24, ignorance of procedural rules is a primary source of judicial dissatisfaction. He emphasised that practitioners must engage with the rules at multiple stages of the appeal process. Similar exhortations were made by Yazbek in his analysis of SCA practice.
Secondly, ignorance of the rules has ethical implications. Clause 3.13 of the Code of Conduct for Legal Practitioners requires practitioners to remain reasonably informed of applicable law and procedure. Failure to comply with appeal-record rules may therefore amount to professional misconduct.
Thirdly, courts have identified a failure to apply one’s mind as a recurring theme. In Salviati, the SCA expressly found that the practitioner had not exercised proper judgment when compiling the record. Earlier still, Maskam Boukontrakteurs characterised the inclusion of unnecessary documents as a breach of the practitioner’s fiduciary duty to the client.
Finally, there is the more cynical explanation, articulated by Judge Harms with characteristic candour: some practitioners deliberately overload records, effectively punishing appellate judges by forcing them to read irrelevant material. Whatever the motivation, the result is the same—judicial irritation and potential sanctions.
5 Do the Rules Themselves Contribute to Non-Compliance?
While practitioner conduct lies at the heart of the problem, it is legitimate to question whether the procedural framework itself is sufficiently clear and consistent. The rules governing civil appeals differ depending on the appellate forum, and these differences may create uncertainty.
To assess this possibility, it is useful to consider the compilation of appeal records across three appellate pathways: appeals to the SCA, appeals to a Full Bench of the High Court, and appeals from the magistrates’ or regional courts to the High Court.
As a preliminary step, practitioners should compile a comprehensive, chronological bundle of all documents exchanged in the proceedings below. This “consolidated bundle” forms the raw material from which the appeal record must be distilled.
6 Civil Appeals to the Supreme Court of Appeal
Under the SCA Rules, the dominant standard is necessity for determination. Rule 8(6)(j) obliges practitioners to remove all documents that are not essential to the appeal. In Mzingeli, the Court reaffirmed that this obligation is substantive, not discretionary.
Certain categories of documents must be excluded unless indispensable, including opening addresses, argument, purely formal material, discovery documentation, duplicates, and colour photographs. The Rules further prescribe the inclusion of core documents such as the judgment appealed against, the order granting leave to appeal, and the notice of appeal. Registrar certification of correctness is also mandatory.
While colour photographs are generally excluded, their inclusion may be justified where relevance is disputed, subject to procedural requirements.
7 Civil Appeals to a Full Bench of the High Court
Appeals to a Full Bench are governed by a different formulation. The Uniform Rules require the exclusion of formal and immaterial documents, and permit the exclusion of exhibits, annexures, and irrelevant portions of lengthy documents where they do not affect the issues on appeal.
This process often depends on agreement between the parties, failing which the disputed material should be included to avoid later cost disputes. Detailed indexing and documentation of excluded material are essential features of compliance under this regime.
8 Civil Appeals to the High Court
Appeals from lower courts to the High Court apply yet another standard. Rule 50 of the Uniform Rules requires the exclusion of unnecessary documents and identifies a list of formal documents that must be omitted unless they bear on the merits. Exhibits and portions of the record may similarly be excluded where irrelevant.
Additional requirements include a certificate of correctness, a comprehensive index, and documentation of excluded material, as well as any agreements between the parties regarding exclusions.
9 Inconsistency and Practical Uncertainty
A notable difficulty arises from the varying standards used across appellate forums. The SCA employs an “essential” test, the Full Bench a “material” test, and the High Court a “necessary” test. Although these concepts aim to achieve the same objective, their differing terminology invites uncertainty.
The problem is compounded by divergent lists of documents earmarked for exclusion. Practitioners are often left to make fine judgments in situations where the rules offer limited guidance, particularly in relation to partial exclusion of documents, transcriptions, certificates, and duplicated material.
These uncertainties are not merely academic. In practice, they place practitioners in a precarious position: over-inclusion risks judicial sanction, while under-inclusion risks an incomplete record and adverse findings.
10 Conclusion
The responsibility for excessive civil appeal records rests primarily with legal practitioners. Courts have been unequivocal in their expectations, and ignorance of the rules is neither an excuse nor a defence. However, the lack of uniformity and clarity across appellate rules may exacerbate the problem.
Greater harmonisation and more explicit guidance, modelled on the comparatively detailed SCA Rules, would likely assist practitioners and promote consistency. Clearer rules would foster leaner records, reduce costs, and enhance the quality of appellate adjudication. Ultimately, well-curated appeal records serve not only the courts, but also clients and the broader interests of justice.
