Appeal v review: why the debate over rulings?

Ex-QDMS

Dr Sayed Iqbal Mohamed

The debate about taking on appeal the ruling of the provincial Rental Housing Tribunal continues twelve years after the introduction of the Rental Housing Act 50 of 1999 (RHA), in August 2000.

Section 17 of the act allows a party, tenant or landlord of a residential lease to have the ruling taken on review to the high court, but is silent about an appeal.

What is the difference between a review and an appeal?

When the tribunal, after hearing the evidence to a dispute, gives a ruling, this decision or resolution is a magistrate’s court judgment and is enforceable in terms of the Magistrates Courts Act, 32 of 1944.

When a party wants to challenge a magistrate’s court judgment, it applies for leave to appeal to take the matter to the high court for a judge or judges to overturn or set aside the judgment.

The appeal is about the merits of the judgment and the high court or Supreme Court of Appeal will replace an incorrect order, ruling or judgment with its own judgment.

In the case of a review, the court is concerned about the procedure followed. The unlawfulness of the procedure may be due to misconduct, gross irregularity, bias and procedural irregularities. An offensive rudeness to a party or witness would be misconduct. Making a decision capriciously, or that is uninformed or impossible to carry out, are examples of procedural irregularity.

This was the finding in eThekwini Municipality v KZN Rental Housing Tribunal and others [2010] JOL 26531 (KZD).

Judge Hughes-Madondo in his judgment stated that the tribunal’s actions were arbitrary and the entire hearing was rendered procedurally unfair.

The matter was sent back to the KZN tribunal.

In Pechi Investments (Pvt) Ltd v Nyamuda t/a Ebunandini Restaurant [2011] JOL 27568 (ZH), the court held that there need not be actual bias; the possibility of it would suffice for the exclusion or disqualification of the judicial officer.

However, the possibility of bias inferred has to be based on the facts relating to the particular case.

In the Johannesburg Labour Court, Judge Molahlehi (in The Only Professional Mordern Autobody CC t/a Mordern Collission Centre v Missa obo Gouws and Others (JR 2811/2010, J 2215/10) [2012] ZALCJHB 54 (14 June 2012)) did not find any irregularity in the arbitration award made by the arbitrator in respect of the dismissal of Gouws from employment.

The judge rejected Gouws’s claims against the arbitrator that there was misconduct in relation to the duties as an arbitrator; gross irregularity; that he exceeded his powers, alternatively failed to apply his mind to the relevant issues.

Given the unique power of “exclusive jurisdiction” regarding an unfair practice of the tribunal, courts are prevented from hearing an unfair practice complaint.

This was decided in the constitutional court recently in Maphango (now Mgidlana) and Others v Aengus Lifestyle Properties (Pty) Ltd (CCT 57/11) [2012] ZACC 2).

After the tenants failed in the high court and Supreme Court of Appeal to stop their evictions, the Constitutional Court gave them the opportunity to take the matter to the Gauteng Rental Housing Tribunal.

The appeals procedure is well established in our judicial system. A court order/judgment is appealed to the next higher court, with the composition of the panels having more judges than the lower courts on each stage of an appeal.

In Pepkor Retirement Fund v Financial Services Board 2003 (6) SA 38, the Supreme Court of Appeal, while contending to keep distinct boundaries between review and appeal, held that material mistake of fact renders a decision reviewable.

Intervention

Cloete JA at paragraph 35 states: “Hitherto, where jurisdiction is not in issue and there is no obvious transgression of the boundaries within which the functionary has been empowered to make decisions, our courts have not permitted a review solely on the basis of a material mistake of fact on the part of the person who made the decision.

“Judicial intervention has been limited to cases where the decision was arrived at arbitrarily, capriciously or mala fide, or as a result of unwarranted adherence to a fixed principle, or in order to further an ulterior or improper purpose; or where the functionary misconceived the nature of the discretion conferred upon him and took into account irrelevant considerations or ignored relevant ones; or where the decision of the functionary was so grossly unreasonable as to warrant the inference that he had failed to apply his mind to the matter...”

An aggrieved party is not denied their right to have the tribunal decision taken to court. In fact, section 17 provides for the tribunal’s decision to be reviewed by a court. The act is, however, silent on appeal, but does not deny it by way of any specific exclusionary provision, as is the case with the Small Claims Court Act.

The merits of the rulings of the tribunal should be appealable to the courts (material mistake of fact/on the facts and on the law), while the judicial review would still apply to the procedural issues (such as an irregularity).

“The last requirement is that there should be a right to appeal to a court on points of law. Appeal is the not the same as judicial review. While they both allow for reconsideration of administrative decisions, judicial review relates to errors of law, while appeal allows a challenge of the merits of a decision.

“In common law jurisdictions where tribunals are an accepted part of the administrative adjudication machinery, the courts continue to play an important supervisory role as a court of appeal. The decisions of administrative bodies and tribunals should be subject to this right of appeal to the courts in order to ensure that the legal system remains essentially unitary.” (MA thesis Administrative Justice and Tribunals in SA: A Commonwealth Comparison, by Gillian Claire Armstrong).

* Dr Sayed Iqbal Mohamed is the chairman, Organisation of Civic Rights.

For advice, call Pretty Gumede or Loshni Naidoo at 031 304 6451.