Swartbooi and Others v Brink and Another (CCT27/02) [2002] ZACC 25; 2003 (1) BCLR 21 (CC) (21 November 2002)

Swartbooi and Others v Brink and Another (CCT27/02) [2002] ZACC 25; 2003 (1) BCLR 21 (CC) (21 November 2002)

The Constitutional Court held that important constitutional and procedural issues arise regarding the liability of municipal council members for costs de bonis propriis. The matter affects all municipal councils and has significant implications for local government functioning. The Court found it desirable to grant leave to appeal so that these issues could be authoritatively determined. Furthermore, the Court ordered the joinder of the municipal council as a party, recognizing its material interest in the outcome, and directed that relevant organs of state be notified and given an opportunity to make submissions. The costs of the application were ordered to be costs in the cause of the...

Citation
[2002] ZACC 25
Parties
Applicant: Gabriel Ntleli Swartbooi and Seventeen Others; Respondent: Lilian Ray Brink; Respondent: Gerrit Niewoudt
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
21 November 2002
Case Number
CCT27/02
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Constitutional Court Following Refusal by the High Court and Supreme Court of Appeal.
Outcome
Leave to appeal granted; municipal council joined as a party; directions issued for further submissions; costs to be costs in the cause.
Judges
Yacoob, Chaskalson, Langa, Goldstone, Kriegler, Mokgoro, Ngcobo, O'Regan, Sachs
Legal Topics
Costs De Bonis Propriis, Municipal Council Liability, Separation of Powers, Privileges and Immunities, Local Government Structures Act
Constitutional Law Civil Procedure Costs De Bonis Propriis Municipal Council Liability Separation of Powers Privileges and Immunities Local Government Structures Act

Case Brief

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Parties

Gabriel Ntleli Swartbooi and Seventeen Others

Applicant

Lilian Ray Brink

Respondent

Gerrit Niewoudt

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Constitutional Court Following Refusal by the High Court and Supreme Court of Appeal.

Legal Issues

  1. 1 Whether the Constitutional Court has jurisdiction to determine when members of a municipal council may be ordered to pay costs de bonis propriis.
  2. 2 Under what circumstances is it appropriate for municipal council members to be ordered to pay such costs personally.
  3. 3 Whether, in this case, the High Court was correct in ordering the applicants to pay costs de bonis propriis.

Ratio Decidendi

The Constitutional Court held that important constitutional and procedural issues arise regarding the liability of municipal council members for costs de bonis propriis. The matter affects all municipal councils and has significant implications for local government functioning. The Court found it desirable to grant leave to appeal so that these issues could be authoritatively determined. Furthermore, the Court ordered the joinder of the municipal council as a party, recognizing its material interest in the outcome, and directed that relevant organs of state be notified and given an opportunity to make submissions. The costs of the application were ordered to be costs in the cause of the...

Court Disposition

Leave to appeal granted; municipal council joined as a party; directions issued for further submissions; costs to be costs in the cause.

Orders

  • The applicants are granted leave to appeal.
  • The municipal council of the Nala local municipality is joined as a party in the appeal and must lodge written argument by 13 December 2002.