Swartbooi and Others v Brink and Another

The appellants were all members of the council of the Nala Local Municipality. Two decisions of the municipal council were reviewed and set aside by the Free State High Court. Although the appellants were not initially parties to the review proceedings, the High Court ordered them to pay the costs of the litigation personally, on the basis that they had supported and voted for the impugned decisions, which the High Court characterised as unreasonable and tainted by racism and mala fides. The appellants sought leave to appeal to the Constitutional Court after the Supreme Court of Appeal refused leave to appeal. A preliminary procedural issue arose as to whether the correct Constitutional Court rule governing the application for leave to appeal had been used.

Leave to appeal to the Constitutional Court was granted, and the appellants’ non-compliance with rule 18 of the Constitutional Court Rules was condoned.

The case is significant for clarifying the correct procedural route to the Constitutional Court when the Supreme Court of Appeal refuses leave to appeal. Substantively, it recognises that personal costs orders against elected municipal councillors for conduct in council raise serious constitutional concerns relating to legislative privilege, democratic governance, freedom of speech, and separation of powers. The decision underscores the Constitutional Court’s role in protecting the functioning of elected deliberative bodies at local government level.