Swartbooi and Others v Brink and Another

The appellants were all members of the council of Nala Local Municipality. The High Court set aside two decisions of the council and ordered the appellants to pay the costs of the proceedings out of their own pockets. The court based this costs order on the conduct of the appellants during deliberations at a full council meeting, reasoning that the decisions could not reasonably have been made and were characterised by undertones of racism and mala fides. The appellants were not initially parties to the litigation but supported and voted for both impugned decisions. The appellants sought leave to appeal to the Constitutional Court after the Supreme Court of Appeal refused leave to appeal. They initially used rule 20 of the Constitutional Court rules (appeals against SCA decisions) rather than rule 18 (direct appeals from courts other than the SCA).

• Whether rule 18 or rule 20 of the Constitutional Court rules was the appropriate procedure for seeking leave to appeal after the SCA refused leave to appeal
• Whether non-compliance with rule 18 should be condoned
• Whether the matter involved a constitutional matter warranting leave to appeal
• Whether it was in the interests of justice to grant leave to appeal
• Whether elected municipal council members should be held personally liable for costs arising from their conduct in council deliberations
• The scope of privileges and immunities accorded to municipal council members under section 161 of the Constitution and section 28 of the Local Government: Municipal Structures Act
• The constitutional issues concerning freedom of speech of members of elected deliberative bodies
• The separation of powers between the judiciary and the executive and legislative branches of government in relation to municipal councils

Leave to appeal was granted on 21 November 2002. Non-compliance with rule 18 of the Constitutional Court rules was condoned. The matter was set down for appeal to determine the substantive issues regarding personal liability of municipal council members for costs.

When the Supreme Court of Appeal refuses leave to appeal, an application for leave to appeal to the Constitutional Court is not an appeal against the SCA's refusal but an appeal against the original High Court decision itself, and therefore rule 18 (not rule 20) of the Constitutional Court rules applies. The question of whether democratically elected municipal council members should be held personally liable for costs arising from their conduct during council deliberations is a constitutional matter that engages: (1) the constitutional protection of privileges and immunities for municipal council members under section 161 of the Constitution and section 28 of the Local Government: Municipal Structures Act; (2) freedom of speech of members of elected deliberative bodies; and (3) the constitutional principle of separation of powers between the judiciary and the legislative and executive branches of government.

The Court made observations about the importance of these issues to the functioning and growth of constitutional democracy in South Africa and noted that the decision on the substantive appeal would have relevance not only to the case at hand but also to the functioning of every municipal council and to the conduct of every municipal council member. The Court noted that these issues had not been decided before. The Court also commented that condonation of procedural non-compliance is usually granted if it is in the interests of justice to do so, and that in applications for leave to appeal, the condonation question is intertwined with the application for leave to appeal where the question of the interests of justice also arises.

This case is significant for establishing the procedural requirements for appealing to the Constitutional Court after the SCA has refused leave to appeal (rule 18 applies, not rule 20). More importantly, it established that the question of personal liability of elected municipal council members for costs arising from their conduct in council deliberations is a constitutional matter of significant importance. The case recognises that such issues engage fundamental constitutional principles including: (1) the privileges and immunities of municipal council members under section 161 of the Constitution; (2) freedom of speech of members of elected deliberative bodies; (3) the separation of powers between the judiciary and the legislative/executive branches of government; and (4) the broader functioning of constitutional democracy at the local government level. The case has relevance to the functioning of every municipal council and the conduct of every municipal council member in South Africa.