Middelberg v Prokureursorde van Transvaal (565/98) [2001] ZASCA 2; [2001] 3 All SA 166 (A); 2001 (2) SA 865 (SCA) (22 February 2001)

Middelberg v Prokureursorde van Transvaal (565/98) [2001] ZASCA 2; [2001] 3 All SA 166 (A); 2001 (2) SA 865 (SCA) (22 February 2001)

The Supreme Court of Appeal held that an application for the removal of an attorney from the roll, although disciplinary and sui generis, constitutes a civil proceeding within the meaning of section 20(1) and (4) of the Supreme Court Act. The statutory framework requires that leave to appeal be obtained either from the lower court or, if refused, from the Supreme Court of Appeal. Since the appellant did not seek leave to appeal from the lower court, and such leave was not refused, the Supreme Court of Appeal lacked jurisdiction to entertain the appeal. The court emphasized that this requirement is substantive and not merely technical, and that the legislative intent was to ensure only...

Citation
[2001] ZASCA 2
Parties
Appellant: A W F Middelberg; Respondent: Prokureursorde van Transvaal
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
22 February 2001
Case Number
565/98
Procedural Posture
Civil Appeal / Appeal Before Supreme Court of Appeal; Preliminary Jurisdictional Issue
Outcome
Appeal struck from the roll with costs.
Judges
Smalberger, Vivier, Scott, Mpati, Melunsky
Legal Topics
Leave to Appeal, Scrapping From Roll, Interpretation of Civil Proceedings, Jurisdiction of Supreme Court, Disciplinary Applications
Civil Procedure Leave to Appeal Scrapping From Roll Interpretation of Civil Proceedings Jurisdiction of Supreme Court Disciplinary Applications

Case Brief

Summary, issues, holding and outcome

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Parties

A W F Middelberg

Appellant

Prokureursorde van Transvaal

Respondent

Procedural Posture

Civil Appeal / Appeal Before Supreme Court of Appeal; Preliminary Jurisdictional Issue

Legal Issues

  1. 1 Whether an application for the removal of an attorney from the roll constitutes civil proceedings under section 20(1) and (4) of the Supreme Court Act.
  2. 2 Whether leave to appeal is required for such proceedings before the Supreme Court of Appeal.
  3. 3 Whether the Supreme Court of Appeal has jurisdiction to hear the appeal absent leave.

Ratio Decidendi

The Supreme Court of Appeal held that an application for the removal of an attorney from the roll, although disciplinary and sui generis, constitutes a civil proceeding within the meaning of section 20(1) and (4) of the Supreme Court Act. The statutory framework requires that leave to appeal be obtained either from the lower court or, if refused, from the Supreme Court of Appeal. Since the appellant did not seek leave to appeal from the lower court, and such leave was not refused, the Supreme Court of Appeal lacked jurisdiction to entertain the appeal. The court emphasized that this requirement is substantive and not merely technical, and that the legislative intent was to ensure only...

Court Disposition

Appeal struck from the roll with costs.

Orders

  • The appeal is struck from the roll.
  • The appellant is ordered to pay the costs.