Gabriel Ntleli Swartbooi and Seventeen Others v Lilian Ray Brink and Others

The appellants were elected councillors of the Nala Local Municipality who voted in favour of two decisions affecting the first and second respondents (fellow councillors). The first decision (19 April 2001) required the respondents to recuse themselves from council meetings pending investigation into a settlement agreement from 1995, without giving them an opportunity to be heard. The mayor issued a misleading statement the next day incorrectly alleging theft. The second decision (24 April 2001) suspended the first respondent without pay for one year for having sued the council for money owed to her. The Free State High Court set aside both decisions and ordered the appellants personally to pay costs de bonis propriis on the attorney and client scale. The appellants were refused leave to appeal by the Supreme Court of Appeal but applied to the Constitutional Court on the costs issue only.

• Whether members of a municipal council can be ordered to pay costs de bonis propriis for decisions made in council proceedings
• The interpretation and scope of section 28 of the Local Government: Municipal Structures Act No 117 of 1998
• The scope of privileges and immunities accorded to municipal councillors under section 161 of the Constitution
• Whether section 28 protection applies to administrative and executive decisions or only legislative functions
• Whether section 28 protection extends to conduct in support of decisions subsequently set aside as unlawful
• The circumstances in which attorney and client costs are appropriate

The appeal was allowed. Paragraph 2 of the High Court order (the costs order against councillors personally) was set aside. The council (third respondent) was ordered to pay the respondents' costs in the High Court on the attorney and client scale. The appellants' costs in the Constitutional Court were to be paid equally by the respondents (one half) and the council (one half). The council was also ordered to pay the first and second respondents' costs in the Constitutional Court.

Section 28 of the Local Government: Municipal Structures Act No 117 of 1998 grants immunity to municipal councillors from civil liability for conduct that constitutes participation in deliberations of the full council in the course of its legitimate business. This protection is not limited to legislative functions but extends to administrative and executive decision-making. The protection applies regardless of whether the decisions supported are subsequently set aside as unlawful. Courts may not use costs orders to punish councillors or influence future conduct of municipal councils, as this would violate separation of powers principles.

The Court noted, without deciding, that there may be outer limits to section 28 protection, such as where conduct is so at odds with constitutional values that protection could not have been contemplated. The Court also did not decide the precise scope of protection for conduct in council committees as distinct from full council meetings, noting that the function or purpose of a committee might be relevant. The Court assumed, without deciding, that evidence of conduct in council proceedings is admissible for the purpose of determining whether conduct falls within section 28 protection or to prove requirements of civil liability for unprotected conduct.

This case establishes important principles regarding municipal councillor immunity and the separation of powers in local government. It is the leading authority on the interpretation of section 28 of the Municipal Structures Act and section 161 of the Constitution. The judgment clarifies that councillor immunity extends beyond purely legislative functions to all participation in legitimate council business, protecting robust democratic debate. It establishes that such protection applies even where decisions are subsequently found to be unlawful, provided the conduct falls within council proceedings. The case also affirms important separation of powers principles by prohibiting courts from using costs orders as mechanisms to punish or influence the conduct of municipal councils.