The government must rebuild dozens of homes it demolished near the King Phalo Airport at the height of the Covid-19 pandemic after the state attorney’s office botched an appeal against a judgment ordering it to do so.
The Supreme Court of Appeal expressed its fury at the way the matter was dealt with by the national department of public works, the East London state attorney’s office and its lawyers.
In the meantime, about 77 families have been left without a place to call home for more than four years.
In 2020, the national department of public works demolished the structures of 77 people on state-owned land, Greydell Farm, behind the airport.
The demolition during the lockdown left many who were affected by the disease homeless and caused a national outcry.
Despite a bitter winter and a freeze on evictions during the lockdown under the national state of disaster, the evictions had gone ahead.
“Hundreds of people gathered in the streets watching two TLBs tear down 77 houses, shacks and temporary structures,” it was reported at the time.
“The department said it had demolished the structures in line with an interdict obtained three years beforehand in terms of which there was a blanket ban on unnamed respondents demarcating any sites on Greydell or building any structures on it.”
In October 2020, the East London high court ruled the demolitions unlawful and directed the department to restore the homes.
Judge Belinda Hartle declared the national public works department had broken the law when the 77 houses built on Greydell Farm in Bhongweni were demolished.
Hartle ruled that the homeless residents were entitled to have their homes restored as soon as possible, pending finalisation of an application to be brought by public works against them for their eviction from the property.
She also instructed that the new structures had to be at least equivalent to those that were demolished, and be capable of being dismantled upon the occupiers’ eviction from the property ultimately, if so ordered by the court.
“The reconstituted structures must be such that they afford the applicants shelter, privacy and amenities,” the judge said.
The department was granted leave to appeal against this judgment, but the bungling East London state attorney’s office took two years to file the appeal records and heads of argument, which resulted in the appeal lapsing.
On Monday, the department failed in its application to the SCA seeking condonation of these failures and a reinstatement of the appeal.
Acting judge of appeal Elizabeth Baartman — with SCA judges Ashton Schippers, Glenn Goosen and acting appeal judges Malefsane Kgoele and Gerald Bloem concurring — found the department, the East London state attorney and its counsel had been “grossly non-compliant” with the rules of the court.
Baartman said the effects of the delay in filing the record on the administration of justice and the respondents who had lost their homes during the lockdown four years ago were self-evident.
Most of the 77 people were in desperate need of having their homes rebuilt.
The judges said the appeal in any event had no prospect of success.
It was therefore not in the interest of justice to grant condonation or reinstatement of the appeal.
“It is prejudicial to the administration of justice to condone the appellant’s [public works department] inexplicable dilatory conduct, while the respondents have been rendered homeless since the demolition of their structures in July 2020.”
The SCA said the conduct of the state attorney’s office and its counsel was to “be deprecated”.
The SCA recently warned, in another case, that punitive personal cost orders could be considered in cases where its rules were flagrantly disregarded.
It appealed to the executive officer of all state attorneys’ offices, the solicitor-general, to take heed of the problem and address it.
This article has been altered by removing the last paragraph which incorrectly referred to the judge as saying the Department of public works’ counsel had ignored the rules of court by not submitting heads of argument and showing up late for the court hearing. In fact the judge had been referring to the respondent’s counsel.
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