The rules governing proceedings in the Supreme Court of Appeal ("SCA") are clear. Rule 8 (3) stipulates that if the appellant fails to lodge the record within three months of lodging the notice of appeal, the appeal lapses.

However, rule 12 does permit a party to apply for condonation, but an applicant for condonation must satisfy the various requirements.

The Supreme Court of Appeal recently delivered judgment in National Department of Public Works v Fani and 77 Others [referred to as "Residents of Farm Greydel (Airport Park)"] and Another. The judgment dismissed an application for condonation due to the late filing of the record and heads of argument in respect of an appeal before the SCA.

The background to the matter was as follows:

  • On 29 October 2020, the High Court declared the demolition of homes in East London as unlawful and the National Department of Public Works was directed to restore the homes that were demolished.
  • On 4 January 2021, the National Department of Public Works was granted leave to appeal the order. The record was due on 18 May 2021 and heads of argument would have been due six weeks thereafter.
  • On 1 November 2022, the State Attorney delivered the record together with a condonation application. In the application for condonation, the State Attorney attempted to proffer an explanation for the delay. This was due to the registrar of the SCA raising several queries in respect of cross-referencing in the record and a contempt application instituted by the respondents.

The interest of justice plays an important role in the determination of condonation applications. The Constitutional Court held that whether condonation should be granted depends on the facts and circumstances of each case. Relevant facts include, but are not limited to:

  • The nature of the relief sought
  • The extent and cause of the delay
  • The effect of the delay on the administration of justice and other litigants
  • The reasonableness of the explanation for the delay
  • The importance of the issue to be raised in the intended appeal
  • The prospects of success

An applicant for condonation must provide a full explanation for the causes of the delay and explain each of the periods of delay. It is insufficient to set out generalised causes without an attempt to relate them to the time frame of its default or to enlighten the court as to the materiality and effectiveness of any steps taken.

The SCA highlighted that condonation applications are not a matter of formality. An applicant must provide a full and satisfactory explanation for their failure to comply with the rules of the SCA. The SCA found that the State Attorney's explanation was unreasonable. This is because no attempt was made to establish what steps needed to be taken to complete the record. The effects of the delay in filing the record impacted the administration of justice and the respondents. The respondents contended that they were in desperate need of reconstruction of their homes. In addition, the SCA held that the appeal had no prospects of success.

In its judgment, the SCA noted and condemned the conduct of the State Attorney and respondents' counsel for not delivering heads of argument and arriving at court late. The SCA also called upon the Solicitor-General, as executive officer of the State Attorney's office, to take heed and address the problem.

The SCA's judgment serves as a crucial reminder to legal practitioners to comply with the rules of the court. In the event of non-compliance, practitioners should apply for condonation and fully comply with the requirements of such an application.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.