Irregularity in the High Court: Appeal or Review?

Abstract

The difference between appeal and review is familiar to Southern African lawyers: appeal challenges the correctness! of the decision and is based on what appears in the record; review challenges the regularity of the proceedings and may be based on matter not appearing in the record but introduced by affidavit. Since the High Court Act, 1964, appeals from magistrates' courts and from the General Division have been heard by the Appellate Division, while the review of proceedings in magistrates’ courts has been a matter for the General Division. This is clear enough, but what if an irregularity occurs in the General Division? There is no clear answer to this question, and the author argues that a clear statutory answer is desirable but in the meantime it would not be improper for the Appellate Division to exercise review jurisdiction over the General Division if the need arose.