Swartbooi and Others v Brink and Another

The applicants were 18 members of the Nala Local Municipal Council who had been ordered by the Free State High Court, in review proceedings concerning the validity of council decisions, to pay costs de bonis propriis on an attorney-and-own-client scale. The High Court held that their conduct warranted personal liability rather than liability being borne by the council. Applications for leave to appeal were refused by both the High Court and the Supreme Court of Appeal. The individual councillors then applied directly to the Constitutional Court for leave to appeal against the special costs order, citing only the original review applicants as respondents and not joining the municipal council, which had been the respondent in the High Court.

Leave to appeal was granted; the Nala Local Municipal Council was joined as a party to the appeal; directions were issued inviting written submissions from the council, SALGA, provincial MECs responsible for local government, and the national minister; and the costs of the leave application were ordered to be costs in the cause of the appeal.

The judgment is significant for recognising that personal costs orders against municipal councillors raise constitutional issues concerning local government autonomy, separation of powers, and statutory privileges and immunities. It underscores the Constitutional Court’s role in setting principled limits on de bonis propriis costs orders against elected representatives and ensures that affected organs of state are heard in matters with systemic implications.