Courts imposing personal costs orders on politicians ‘to keep them accountable’

Courts are being forced to resort to impose personal cost orders on politicians and senior bureaucrats to hold them accountable for failures or poor decisions and to protect the integrity of the Constitution, experts say.

This was after the Western Cape High Court yesterday imposed a personal costs order on former minister of rural development and land reform Maite Nkoana-Mashabane for her former department’s failure to comply with a court order to draft a plan to develop District Six in Cape Town.

Presiding Judge Yasmin Meer, who is acting judge president of the Land Claims Court, described the minister’s inaction as “grossly unreasonable”.

Nkoana-Mashabane was ordered to personally pay the costs of counsel from April 17.

The District Six claimants approached the court when the minister and her department did not meet a February court deadline to produce a comprehensive plan to develop the area to which residents forcibly removed by the apartheid authorities between 1966 and 1982 had had their rights restored.

When Nkoana-Mashabane appeared in court, she cited time and legal and financial challenges as the reason the department missed the deadline.

Although Nkoana-Mashabane was no longer head of the department, she had been the minister at the time of the complaint and thus would be penalised by the personal costs order, the judge said.

According to analysts, this ruling, and similar judgments before it, were a wake-up call to those responsible for applying the provisions of the Constitution. It signalled they would be held accountable for not taking requisite action and for bad decisions.

Political analyst Ntsikelelo Breakfast said the Nkoana-Mashabane ruling was an indication the courts were losing patience with politicians and bureaucrats who did not apply their minds in decisions on serious matters.

Breakfast, a senior lecturer in the School of Security and Africa Studies at Stellenbosch University, said the message was clear that they would pay personally for their misdeeds.

“The courts are conveying the message that people must apply their minds on any matter they are responsible for.

“This is especially important for court matters which are expensive to process.”

Breakfast also cited the recent Constitutional Court ruling against Public Protector Busisiwe Mkhwebane ordering her to personally pay 15% of the Absa/ Reserve Bank case’s cost due to her blunders in the matter. The amount she had to pay was estimated at R900,000.

The first cost order that hit a senior politician was handed down in September last year by the Constitutional Court.

Former social development minister Bathabile Dlamini had to personally pay 20% of the legal costs of the Black Sash Trust and Freedom Under Law in the South African Social Security Agency (Sassa) matter.

This was after an inquiry chaired by Judge Bernard Ngoepe investigated whether Dlamini should be held personally liable for the Sassa debacle.

Breakfast noted that when politicians and bureaucrats neglected their duties or made reckless decisions, the poor often bore the brunt.

Independent constitutional expert Phephelaphi Dube said these rulings “serve as a mechanism to protect the integrity of the Constitution”.

– ericn@citizen.co.za

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