The South African Constitutional Court has found that cabinet ministers can now be held personally liable for the costs of legal proceedings to which they are a party.
This finding was made in the case of Black Sash Trust v Minister of Social Development and Others (Freedom Under Law NPC Intervening), in which judgment was delivered on 15 June 2017.
In this case, the court examined the law relating to personal liability for public officials for the costs of legal proceedings, including liability for legal representatives for proceedings, in which their clients are involved, and found that the Constitution buttressed these rules. The court then had no difficulty, relying on the principles of accountability and responsiveness implicit in the Constitution, in extending personal liability for costs to cabinet ministers.
The court stated that, in terms of the Constitution, cabinet ministers are responsible for the powers and functions of the executive assigned to them by the president. In this regard, they must act in accordance with the Constitution, and all constitutional obligations must be performed diligently and without delay.
The court stated that that all organs of state must provide effective and accountable government, and that the basic values and principles governing public administration include the promotion of efficient, economic and effective use of resources. The court went on to say that public administration must be accountable, and transparency must be fostered by providing the public with timely, accessible and accurate information.
The court held that within that constitutional context, the tests of bad faith and gross negligence, previously espoused in cases in a different context, remain well-founded, but must be applied on a case-by-case basis.
Accordingly, if a cabinet minister acts in bad faith or with gross negligence in connection with litigation, he or she can be found to be liable for the costs of the legal proceedings.
In this particular case, the court found that it could not make a finding against Minister of Social Development, Bathabile Dlamini, on the basis of contested allegations in affidavits that bear strongly on whether she had acted in bad faith. The court therefore ordered that the parties be given an opportunity to agree on a process to get to the bottom of the issue, failing which the court will determine the process.
This case is a big step forward for the South African public as it means that ministers are not insulated from liability by their representative capacities as ministers of a particular portfolio, but are exposed to personal liability if they do not comply with the standards laid down by the Constitution.