Swartbooi and Others v Brink and Another

The applicants were eighteen members of the Nala Local Municipal Council. In earlier High Court review proceedings concerning the validity of decisions of the council, the present respondents (also council members) were successful. Instead of ordering costs against the municipal council, the Free State High Court made a special punitive costs order directing the applicants, in their personal capacities, to pay costs de bonis propriis on the attorney-and-own-client scale, based on their conduct. Applications for leave to appeal by the council and later jointly with the applicants were refused by the High Court and the Supreme Court of Appeal. The applicants then approached the Constitutional Court for leave to appeal against the personal costs order.

Leave to appeal was granted. The Nala Local Municipal Council was joined as a party to the appeal. The South African Local Government Association, provincial MECs responsible for local government, and the national minister responsible for local government were invited to make submissions. Costs of the application were ordered to be costs in the cause of the appeal.

This judgment is significant for recognising that personal costs orders against municipal councillors raise constitutional questions affecting local government functioning, accountability, and separation of powers. It underscores the need for procedural fairness through joinder of parties with a material interest and signals the Constitutional Court’s role in clarifying when de bonis propriis costs orders against public office-bearers are appropriate.