One of the advantages of living in a constitutional democracy with separation of powers is that when organs of state make decisions that citizens believe to be unlawful or irrational, those decisions can be challenged in court.
South African courts have repeatedly rescued the populace from the impact of decisions made by officials who appear to have no idea that their jobs exist to protect and advance the rights of the people they were elected to represent.
Sometimes these cases have national repercussions: last week, in a challenge brought by the Organisation Undoing Tax Abuse (Outa), the Pretoria high court ruled that electricity generation licences issued to Karpowership by the National Energy Regulator of South Africa (Nersa) are invalid.
The licences followed minister Gwede Mantashe’s decision to award 20-year “emergency power” contracts to Karpowership, which would have cost South African taxpayers hundreds of billions.
Other challenges benefit a smaller group of citizens but nevertheless send an important message about abuse of power, such as AfriForum’s recent success against the City of Tshwane. The Pretoria high court found on July 31 that Tshwane’s decision to impose a “cleansing levy” on residents who do not have their waste removed by the municipality does not comply with the constitution or the city’s statutory framework.
Then there are cases that are less significant for the country at large but hugely important for the individuals involved. Like the farmers whose land and water were poisoned when contractors working for the department of forestry, fisheries & the environment’s (DFFE’s) Working for Water programme used a deadly pesticide they were not authorised to apply.
In a judgment delivered on July 14, the Pretoria high court found that the DFFE’s actions amounted to gross negligence and criminal conduct which had “the most devastating effect on the economic viability of the farm through contamination”.
Reading these cases leaves one with a disturbing picture of government entities doing far more harm than good.
The judge in the AfriForum case found that “the city is also ill informed about the way the public’s basic rights are affected by its actions”. In the DFFE case, the judgment states that, apart from one individual who testified, “it is a sad indictment that none of the state officials from [the DFFE] ... were familiar with their roles and responsibilities in safeguarding the environment”.
In each of these cases, the court made a costs order against the state respondent/defendant, which means they must pay the costs incurred by the applicants in bringing and litigating the case. In the DFFE case, the department is also liable for damages incurred.
Crucially, however, none of the individuals involved in making these unlawful decisions bears any personal responsibility — financial or otherwise — for the outcomes of these cases. All the costs ultimately fall on the taxpayer.
Judges don’t automatically make costs orders but will do so if conduct justifies it. And in each of these cases, the poor conduct of the government entity and/or its legal representatives worsened the situation.
Nersa did not file a single answering affidavit in its own defence in three years of litigation, and it also failed to withdraw the licences of its own accord, which would have quickly ended the case.
The judge in the AfriForum case dedicated the last 10 pages of his judgment to a scathing indictment of the conduct of the City of Tshwane and its legal representatives, accusing them of acting in bad faith, failing to comply with legislation and attempting to “obfuscate the real issues”, compounded by filing hundreds of pages of irrelevant documents.
The judge also criticised the conduct of the city’s lawyers, finding that they did not live up to their ethical duty as legal practitioners.
In considering costs orders in the DFFE case, the judge found that the department had done nothing to address the farmers’ complaint, even after its investigation, and that the department’s lawyers had unnecessarily wasted the court’s time, and thus the plaintiffs’ scarce resources.
In cases playing out across the country, therefore, citizens are paying three times over for government incompetence and illegality: first for the damage done by the decision or action that is being challenged; second, for the cost of legal fees in defending the case; and third, for punitive costs against the respondent for legal conduct failures.
This means that unlawful behaviour of government officials becomes a huge and completely wasteful drain on the public purse. Until the individuals responsible are forced to take personal responsibility for their conduct, it is unlikely that these court decisions will have an impact on our culture of misconduct and impunity.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.