The personal liability of public officials for constitutional litigation costs

Abstract

The central theme in this dissertation is a discussion on the imposition of personal costs orders on public officials in constitutional litigation. The issue of costs in litigation involving state functionaries (public officials) has been an issue of long topical standing. Over the years there has been emerging judicial trends where public officials have been embroiled in litigation on behalf of the state and have been ordered by the courts to pick up the litigation costs. The norm has always been where a public official is involved in litigation, in representative capacity, the State picks up the legal costs. Over the years this has been changing. The courts have recently begun to hold public officials responsible for their negligent, reckless and incompetent acts. The judicial wheel has been turning slowly and changing. Despite this welcome change, the courts have not yet provided clear precedence to justify these developments. This dissertation therefore investigates the foundation of what constitutional litigation entails, more specifically the issue of costs. Case law where public officials have been found personally liable for litigation costs lack uniformity. The courts use the already developed principles such as negligence, bad faith, ultra vires amongst other principles to impose personal liabilities but there is a lack of uniform guidelines to help courts in conclusively holding that the principles were fully complied with to warrant such imposition. This study contains a step by step discussion of the principles at play in imposing personal costs liability on public officials. It discusses cases where these principles have been used to weigh in on the loopholes that need to be attended to in order to conclusively develop the issue of personal costs on public officials in constitutional litigation. Hence after a detailed discussion the final chapter proposes guidelines that may be considered and adopted by the courts to justify personal costs orders. In coming up with guidelines this study is intended to contribute to the vindication of the Constitution, to alleviate unwarranted demands on the fiscus, to promote just administrative action and to contribute to the efforts to bring errant public officials to book. The Constitution provides for just administrative action, accountability and responsiveness of state functionaries and this study is designed at promoting just that.