In the recent matter of Black Sash Trust v Minister of Social Development and Others (Freedom Under Law NPC Intervening) (CCT48/17) [2017] ZACC 20, the Constitutional Court grappled with the issue of whether the Minister of Social Development should be ordered to pay the costs of the litigation surrounding SASSA's failure to ensure the continued payment of government grants.

In a short Judgment by Froneman J, the Court considered the legal basis on which a public official exercising a public duty can be ordered to pay the costs of litigation out of their own pocket. The following comments were made:

“When public officials were guilty of acting in male fides (bad faith), courts have in the past made personal cost orders against them…It is the existence of male fides on the part of the judicial officer that introduces the risk of an order of costs de bonis propriis being given against him.” Costs de bonis propriis is a specific type of cost order. Costs de bonis propriis is awarded against a person acting in a representative capacity. Such costs are a penalty for improper conduct and the representing person must pay out of his own pocket.

In coming to a decision, the court was also guided by the broader principles enshrined in the Constitution, namely those of accountability and responsiveness. The court stated that “all organs of state must provide effective and accountable government”. The overarching idea was summed up by the Judge:

“The question of what would constitute improper conduct can be answered with reference to two linked issues: Institutional competence and constitutional obligations…Within that context the tests of bad faith and gross negligence in connection with the litigation, applied on a case by case basis, remained well founded. These tests are also applicable when a public official’s conduct of his or her duties or the conduct of litigation, may give rise to a costs order.”

In considering whether the Minister had acted in bad faith or improperly in the matter, the court gave the Minister an opportunity to file an affidavit defending her position.

In the affidavit, the Minister took the position of blaming the current Chief Executive Officer of SASSA (Mr Magwaza) and the erstwhile Director General of the Department of Social Development (Mr Dangor). Further affidavits were filed by Mr Dangor and Mr Magwaza, resulting in several disputes between the three parties.

To deal with the matter and move it forward, the Court ordered the parties to report to it within two weeks, advising on the Minister’s role and the responsibility that she played in the matter, failing which the court would issue directions.

What this case demonstrates is that incompetent public officials who cannot carry out their tasks in good faith may be ordered to pay the costs of any litigation arising out of their shortcomings and the Courts are looking for creative methods to ensure the effective administration of state functions.