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

This matter arose from the affairs of the Nala local municipal council. The current respondents successfully brought a review application against the council in the Free State High Court. The High Court made a special costs order directing the applicants (18 members of the municipal council) to pay costs personally on the attorney and own client scale, rather than the council paying. The High Court took the view that the conduct of the applicants warranted them having to pay costs on a punitive scale from their own pockets. The council applied to the High Court for leave to appeal against the whole judgment and costs order, which was refused. The applicants then joined with the council in applying to the Supreme Court of Appeal for leave to appeal, which was also refused. The applicants then brought this application to the Constitutional Court for leave to appeal, this time in the name of the 18 individual council members only, citing only the two original applicants as respondents without including the council as a party.

• Whether the determination of circumstances in which it is appropriate for members of a municipal council to be ordered to pay costs de bonis propriis (from their own pockets) concerning the validity of decisions of a municipal council is a matter within the jurisdiction of the Constitutional Court
• The circumstances in which it is appropriate for members of a municipal council to be ordered to make payment of such costs
• Whether in the circumstances of this case the applicants ought to have been ordered by the High Court to pay costs de bonis propriis
• Whether the municipal council should have been joined as a party to the appeal proceedings
• Issues concerning the separation of powers
• The scope of privileges and immunities conferred upon members of a municipal council by section 28 of the Local Government: Municipal Structures Act 117 of 1998

The Court granted leave to appeal. The municipal council of the Nala local municipality was joined as a party in the appeal and required to lodge written argument by 13 December 2002. The South African Local Government Association, all members of provincial executive councils responsible for local government, and the national minister responsible for local government were permitted to lodge written argument on the issues by 13 December 2002, provided they gave notice of their intention by 2 December 2002. The applicants and respondents were given leave to respond to argument filed by 10 January 2003. The registrar was requested to notify the relevant parties. Costs of the application were reserved as costs in the cause of the appeal.

Where a municipal council has a material interest in an appeal concerning a costs order made against individual councillors personally (de bonis propriis), the council must be joined as a party to the appeal proceedings, as any finding that the costs order against the councillors was wrong would almost inevitably result in that liability being placed on the council. The determination of circumstances in which it is appropriate for members of a municipal council to be ordered to pay costs de bonis propriis concerning the validity of decisions of a municipal council is a matter within the jurisdiction of the Constitutional Court, particularly where it raises issues concerning the separation of powers and the scope of privileges and immunities conferred upon members of municipal councils under section 28 of the Local Government: Municipal Structures Act 117 of 1998.

The Court noted that it would give fuller reasons for granting leave to appeal when it gives judgment on the appeal itself. The Court observed that issues concerning the separation of powers and the scope of municipal councillor privileges and immunities are issues that affect all municipal councils and could have a significant bearing on the way in which they function. The Court expressed that it would be helpful for the views of those involved in local government to be made available to it, reflecting the broader public interest in the resolution of these issues beyond the immediate parties to the dispute.

This case is significant in South African jurisprudence because it addresses fundamental questions about the personal liability of municipal councillors for costs in litigation concerning municipal council decisions. It raised important constitutional issues about the separation of powers and the scope of privileges and immunities afforded to municipal councillors under section 28 of the Local Government: Municipal Structures Act 117 of 1998. The case has implications for all municipal councils in South Africa and could significantly affect how they function. The Constitutional Court recognized the need for input from local government stakeholders, demonstrating the broad impact of these issues on local government administration. The case establishes the importance of proper joinder of parties with material interests in constitutional litigation, particularly where municipalities and their individual councillors may have distinct interests.