Democratic Alliance v Public Protector; Council for the Advancement of the South African Constitution v Public Protector (11311/2018; 13394/2018) [2019] ZAGPPHC 349; [2019] 4 All SA 79 (GP) (15 August 2019)

Democratic Alliance v Public Protector; Council for the Advancement of the South African Constitution v Public Protector (11311/2018; 13394/2018) [2019] ZAGPPHC 349; [2019] 4 All SA 79 (GP) (15 August 2019)

The court held that the Public Protector's conduct in the Estina investigation constituted gross negligence and a serious dereliction of her constitutional and statutory duties. She failed to properly investigate complaints, did not consult with affected parties, and proposed inappropriate remedial action. Her arguments for immunity under section 5(3) of the Public Protector Act were rejected, as the Constitutional Court had clarified that such immunity does not apply to conduct in bad faith or gross negligence. The Public Protector was aware from the outset that a personal and punitive costs order would be sought, and her decision to appoint multiple legal teams unnecessarily escalated...

Citation
[2019] ZAGPPHC 349
Parties
Applicant: Democratic Alliance; Applicant: Council for the Advancement of the South African Constitution; Respondent: Public Protector
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
15 August 2019
Case Number
11311/2018; 13394/2018
Procedural Posture
Civil Application / Costs Judgment Following Merits Judgment
Outcome
Personal and punitive costs orders granted against the Public Protector in both her official and personal capacities, apportioned between the applicants.
Judges
RG Tolmay
Legal Topics
Personal Costs Orders, Public Official Liability, Punitive Costs, Constitutional Accountability, Public Protector Act, Gross Negligence
Constitutional Law Administrative Law Civil Procedure Personal Costs Orders Public Official Liability Punitive Costs Constitutional Accountability Public Protector Act +1 more

Case Brief

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Parties

Democratic Alliance

Applicant

Council for the Advancement of the South African Constitution

Applicant

Public Protector

Respondent

Procedural Posture

Civil Application / Costs Judgment Following Merits Judgment

Legal Issues

  1. 1 Whether a personal and punitive costs order can be granted against the Public Protector in her official and personal capacity.
  2. 2 Whether the Public Protector's conduct in the Estina matter warrants a personal costs order.
  3. 3 Whether section 5(3) of the Public Protector Act provides immunity from costs orders for the Public Protector.

Ratio Decidendi

The court held that the Public Protector's conduct in the Estina investigation constituted gross negligence and a serious dereliction of her constitutional and statutory duties. She failed to properly investigate complaints, did not consult with affected parties, and proposed inappropriate remedial action. Her arguments for immunity under section 5(3) of the Public Protector Act were rejected, as the Constitutional Court had clarified that such immunity does not apply to conduct in bad faith or gross negligence. The Public Protector was aware from the outset that a personal and punitive costs order would be sought, and her decision to appoint multiple legal teams unnecessarily escalated...

Court Disposition

Personal and punitive costs orders granted against the Public Protector in both her official and personal capacities, apportioned between the applicants.

Orders

  • The Public Protector in her official capacity is ordered to pay 85% of the costs of the Democratic Alliance on an attorney and client scale, including the costs of two counsel.
  • The Public Protector in her official capacity is ordered to pay 85% of the costs of the Council for the Advancement of the South African Constitution on an attorney and client scale, including the costs of two counsel.