Making legal costs personal would reduce silly state cases

by | Aug 17, 2016 | General | 1 comment

THE vituperative exchanges in the various court cases concerning the style of management at the SABC and the continuation in office of its chief operations officer, Hlaudi Motsoeneng, have had a healthy spin-off that deserves closer examination.

After the #SABC4 — four journalists dismissed by the SABC for being intelligently disobedient over its new and unconstitutional censorship policy — were reinstated by the Labour Court in Johannesburg, they were initially prevented from returning to work even though an appeal had not yet been noted.

The noting of an appeal would, in the normal course, have suspended the operation of the reinstatement order, but without taking that step, the SABC was skating on thin ice by barring the four from returning to work as ordered by the court.

When their union, Solidarity, asked pointedly for the identity of the person or persons involved in the decision-making processes regarding the possibility of appealing, with a view to seeking punitive costs out of their pockets (rather than from the usual source — public funds), the opposition evaporated like morning mist and the four were allowed to return to work.

The thought of being held in contempt of the court order and being mulcted in costs clearly had a back-straightening effect on the mandarins of Auckland Park.

James Selfe, the DA leader who has been piloting the litigation over Motsoeneng’s irregular appointment, his penchant for giving himself ludicrously large increases and his tendency to make irrationally unconstitutional policy decisions, has lost patience with litigating at the taxpayers’ expense and has rattled his sabre in the direction of a punitive costs award against Motsoeneng in his personal capacity.

The same step has yet to be taken in the long-running review of the decision to withdraw charges against President Jacob Zuma, but the simple notice to do so is palpably overdue.

Seeking costs de bonis propriis (from their own pockets) from politicians and public servants who litigate in a representative capacity is a useful weapon in the armoury of public interest litigants.

It is hardly in the public interest that the public purse be raided with monotonous regularity due to baseless technical legal points or the pursuit of unmeritorious defences in litigation of this kind.

One aspect that has yet to enjoy the publicity that flowed from the utterances of Judge Bernard Ngoepe, the tax ombud who is concerned about the wastefulness of raiding the fiscus for unnecessarily incurred legal costs, is the question of whether the punitive costs awards should be paid by the lawyers who advise the public servants.

At the risk of being accused of cannibalism, or at least unsporting behaviour, it is necessary to point out that the courts have used costs awards against errant lawyers since time immemorial as a means of bringing an end to pointless, vexatious and frivolous litigation.

Sometimes this outcome occurs at the request of the opposing party, but more often it is at the initiative of the court itself. The basis for doing so is that there has been improper or unreasonable conduct on the part of the lawyer concerned, or that a lack of bona fides is evident. In such circumstances, the courts have been known to make costs awards against those who advise the course of action in the litigation for the purposes of delay, frustration of claims and other nefarious goals such as the running up of costs for no good reason.

In the South African legal system, costs can be awarded in litigation at the discretion of the courts. Usually the successful party gets its party-and-party costs from the unsuccessful litigant. This does not apply in public interest litigation, in which a litigant unsuccessfully asserts a right in the Bill of Rights. Usually no costs award is made in such a case.

It does sometimes happen that a successful litigant is made to pay part of the costs of the loser, especially where protraction of the case and prolixity of the paper-work occur. An award of attorney-and-client costs is made to mark the disapproval of the court in respect of the way in which the losing litigant has conducted the case. Sometimes this type of punitive costs award is increased to an attorney-and-own-client award so as to ensure the winning litigant recovers most, if not all, of the costs of the case from the recalcitrant loser.

In civil litigation against the state, the government, quasi-governmental institutions and parastatal corporations, it is necessary for a representative of the entity sued to make decisions on whether or not to defend the case, usually on the advice of the state attorney. According to recent research by the Public Service Commission, the office of the state attorney has a success ratio of just three out of every 10 cases in which it represents its clients. Any private law firm that lost 70% of the cases it runs would fail within a short period.

The state attorney is obviously not profit-driven, and the tendency to fight any and all cases seems to be based on the lack of capacity to obtain proper and sensible instructions from the organ of state involved. This phenomenon, hardly the fault of the state attorney, leads to the filing of “bare denial” pleadings that cannot withstand the scrutiny of the courts in the light of documentary, oral and expert opinion evidence presented by claimants at great expense and after long delays.

This malaise is most effectively treated in the manner the labour court is now contemplating in respect of the #SABC4 litigation. The officials concerned with the decision-making that led to the suspension and dismissal of the journalists have been called upon to explain why they should not personally pay the costs the journalists and their trade union were put to in litigating a just solution to the issues that arose from the irregular suspension and dismissal.

It is to be hoped this approach will be replicated in other courts with a view to promoting respect for the rule of law, protection of the rights guaranteed to all in the Bill of Rights (which include the right to fair labour practices) and the effective and efficient administration of justice.

The state attorney’s success ratio will improve exponentially if public servants and politicians are made aware of the risks they run by frivolously and vexatiously litigating bad points in cases that have no merit and ought to be settled expeditiously.

• Hoffman is a director of Accountability Now

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1 Comment

  1. Anton Boswel

    Excellent article Paul.


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