Swartbooi and Others v Brink and Another (1) (CCT27/02) [2003] ZACC 5; 2003 (5) BCLR 497 (CC) (3 April 2003)

Swartbooi and Others v Brink and Another (1) (CCT27/02) [2003] ZACC 5; 2003 (5) BCLR 497 (CC) (3 April 2003)

The Constitutional Court held that the correct procedure for seeking leave to appeal in circumstances where the Supreme Court of Appeal has refused leave is governed by rule 18, not rule 20, of the Constitutional Court rules. The refusal of leave by the SCA does not constitute an appealable decision; rather, the appeal lies against the original High Court judgment. The Court found that the issues raised by the appellants—namely, the personal liability of municipal councillors for costs arising from council decisions and the scope of constitutional privileges and immunities—are constitutional matters of significant importance to the functioning of local government and the separation of...

Citation
[2003] ZACC 5
Parties
Appellant: Gabriel Ntleli Swartbooi and Seventeen Others; Respondent: Lilian Ray Brink; Respondent: Gerrit Niewoudt
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
3 April 2003
Case Number
CCT 27/02
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Constitutional Court After Refusal by the Supreme Court of Appeal.
Outcome
Leave to appeal was granted and non-compliance with rule 18 was condoned.
Judges
Yacoob, Chaskalson, Langa, Goldstone, Kriegler, Mokgoro, Ngcobo, O'Regan, Sachs
Legal Topics
Leave to Appeal Procedure, Personal Costs Orders, Freedom of Speech in Council, Separation of Powers
Constitutional Law Civil Procedure Leave to Appeal Procedure Personal Costs Orders Freedom of Speech in Council Separation of Powers

Case Brief

Summary, issues, holding and outcome

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Parties

Gabriel Ntleli Swartbooi and Seventeen Others

Appellant

Lilian Ray Brink

Respondent

Gerrit Niewoudt

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Constitutional Court After Refusal by the Supreme Court of Appeal.

Legal Issues

  1. 1 Whether the appellants followed the correct procedural rule in seeking leave to appeal to the Constitutional Court after refusal by the Supreme Court of Appeal.
  2. 2 Whether the High Court was correct to order municipal councillors to pay costs personally for decisions taken in council meetings.
  3. 3 Whether section 161 of the Constitution and section 28 of the Local Government: Municipal Structures Act protect councillors from personal liability for costs arising from council decisions.

Ratio Decidendi

The Constitutional Court held that the correct procedure for seeking leave to appeal in circumstances where the Supreme Court of Appeal has refused leave is governed by rule 18, not rule 20, of the Constitutional Court rules. The refusal of leave by the SCA does not constitute an appealable decision; rather, the appeal lies against the original High Court judgment. The Court found that the issues raised by the appellants—namely, the personal liability of municipal councillors for costs arising from council decisions and the scope of constitutional privileges and immunities—are constitutional matters of significant importance to the functioning of local government and the separation of...

Court Disposition

Leave to appeal was granted and non-compliance with rule 18 was condoned.

Orders

  • Leave to appeal to the Constitutional Court is granted.
  • Non-compliance with rule 18 of the Constitutional Court rules is condoned.