National Department of Public Works v Fani & 77 Others (Collectively referred to as "Residents of Farm Greydel (Airport Park)") and Another

The appellant (National Department of Public Works) was granted leave to appeal against a high court order of 29 October 2020, which declared unlawful the appellant's demolition of the respondents' homes on the Remainder of Portion 1 of the Farm Greydel 871, East London. The demolition occurred on 27 July 2020 pursuant to an ex parte order granted by Stretch J on 14 March 2017, which interdicted unidentified persons from occupying the property and authorized demolition of structures erected in contravention of the order. The high court (per Hartle J) found that the appellant's reliance on the 14 March 2017 order was misplaced and that it should have launched eviction proceedings in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act). The appeal lapsed due to the appellant's failure to file the appeal record and heads of argument timeously. The record was due on 18 May 2021 but was only filed on 1 November 2022 - approximately one and a half years later. The appellant applied for condonation of late filing and reinstatement of the appeal.

• Whether condonation should be granted for the late filing of the record and heads of argument
• Whether the delay in filing was adequately explained
• Whether it is in the interests of justice to condone the delay
• Whether the appeal had prospects of success
• The enforceability of ex parte orders against unnamed respondents

The application for condonation for late filing of the record and heads of argument was refused with costs.

For condonation of late filing to be granted, the applicant must: (1) provide a proper explanation of the causes of delay and explain each period of delay; (2) not merely set out generalized causes but must relate them to the time-frame of default and demonstrate materiality and effectiveness of steps taken to achieve compliance at the earliest reasonable opportunity; and (3) demonstrate that the court's discretion should be exercised in its favour. The interests of justice test requires consideration of the nature of relief sought, extent and cause of delay, effect on administration of justice and other litigants, reasonableness of explanation, importance of the issue, and prospects of success. An ex parte order against unnamed or unidentified respondents is unenforceable as any court order must be capable of enforcement, particularly because wilful non-compliance will result in contempt proceedings. Enforcement requires identification of the persons against whom the order operates.

The Court expressed concern about the conduct of both the state attorney and the respondents' counsel. Regarding Ms Tyani's conduct, the Court noted recent warnings about flagrant disregard of court Rules and indicated that punitive personal costs orders may be appropriate in such cases. The Court expressed hope that the Solicitor General would take heed and address the problem. Concerning the respondents' counsel, the Court noted that he disregarded the Rules by failing to file heads of argument and arrived late to the hearing (explaining he relied on public transport and it was his first appearance in the Court). However, the Court found this conduct was not wilfully disruptive so as to justify denying the respondents their costs. The Court also commented that the demolition was particularly prejudicial as it occurred during the COVID-19 pandemic national lockdown when the respondents were in desperate need of reconstruction of their homes.

This case reaffirms the strict approach South African appellate courts take to compliance with Rules of Court, particularly in applications for condonation and reinstatement of lapsed appeals. It emphasizes that condonation is not a formality and that state attorneys must provide full and satisfactory explanations for non-compliance. The judgment reinforces the principle that ex parte orders must be capable of enforcement and must identify the persons against whom they operate. The case also signals the Court's willingness to consider punitive costs orders against legal practitioners who flagrantly disregard court rules, particularly state attorneys. It demonstrates the balancing of administrative convenience against substantive justice considerations, particularly where vulnerable persons (homeless respondents) are affected. The case underscores that proper eviction procedures under PIE must be followed rather than relying on stale ex parte orders against unidentified persons.