The duty of the state to act fairly in litigation

Abstract

South African organs of state are obliged to act fairly, justly and honestly when litigating. These obligations are derived from the Constitution of the Republic of South Africa, 1996, which places positive constitutional duties on an organ of state when it engages in litigation. Organs of state frequently ignore these constitutionally imposed duties, and thereby abuse the court process. Existing control mechanisms in place to ensure compliance are clearly not effective in holding organs of state constitutionally accountable. A punitive costs order granted against the state is paid for by the taxpayer. A costs order de bonis propriis is not always possible or indeed desirable in the circumstances. Accordingly, a change to the current law of civil procedure and professional legal ethics may be necessary. Enforceable guidelines that could provide legal clarity on the constitutional obligation imposed on organs of state during litigation are needed. Such guidelines, known as the model-litigant obligations, are used in Australia to force the state litigant to behave ethically and honestly. This article proposes the adoption of the model-litigant obligations in South African law.