Whilst the vast majority of state officials are competent and honest, and deserving of our full support, there will always be a few “bad eggs” to contend with. We’ve all had our run-ins with state bureaucracy, and where it causes you significant loss of any sort, ask your lawyer if you can sue. Act quickly; a 6 month time limit applies.
Of course first prize is always to avoid the hassle and risk of litigation by motivating an obstructive official into doing his/her job properly in the first place. And whilst threatening to go the legal route should help, there’s a problem here. If you win, government pays your damages and legal costs. In other words, it’s not the errant official who risks having to cough up; it’s you and I as taxpayers.
The good news is that our courts have signaled clearly that they will not tolerate the actions of that minority of state officials who seem to think that they can trample all over our constitutional rights with impunity.
How the “Social Grants Crisis” judgment helps
The Constitutional Court case (Black Sash Trust v Minister of Social Development and Others (Freedom Under Law NPC Intervening) (CCT48/17)  ZACC 8) around the social grants crisis finds the Social Development Minister at risk (as at date of writing) of having to pay the many millions in legal costs at stake in that case “from her own pocket”.
She has to show cause on affidavit why that shouldn’t be ordered, and it will be interesting to see what argument she advances in light of the Court’s reference to her “extraordinary conduct” and its finding that: “The office-holder ultimately responsible for the crisis and the events that led to it is the person who holds executive political office. It is the Minister who is required in terms of the Constitution to account to Parliament. That is the Minister, and the Minister alone.”
Regardless of the outcome, errant state officials and their superiors have now been given an unambiguous warning by the highest court in the land – they risk personal liability for legal costs caused by their dereliction of duty.
In the High Court: The “bull in a china shop” doctor
A recent High Court decision (De Vries and Associates v MEC: Free State Department of Health (3484/2016, 3516/2016)  ZAFSHC 23) illustrates the sort of unacceptable conduct that will expose a state official to the risk of paying costs personally –
- A specialist radiology practice, operating in an academic hospital, obtained two interim court orders against a provincial Department of Health which had tried to close them down by removing their equipment and locking them out.
- Disputes over the validity of a lease of equipment and over the practice’s rights to treat private as well as public patients led to litigation.
- Whilst the litigation was still pending, two senior Departmental officials (both doctors) “decided to act as prosecutor, judge and executioner on the legal issue . . . thereby taking the law into their own hands”.
- Much “harassment and intimidation” later, the practice’s equipment was unlawfully seized and removed by one of the officials, accompanied by a “platoon” of security guards. In defiance of court orders the Department failed to return the equipment and prevented access to the practice. Most alarmingly the state doctor in question, again with a platoon of security guards, was found to have intruded on a “life-threatening, intricate and complicated procedure” in an operating theatre.
- He had, said the Court, “acted like a bull in a china shop” and is perhaps lucky that an application to have him committed to prison for 90 days for contempt of court could not be pursued.
- And it certainly didn’t help the Department’s case that the radiologists were specialists with “rare skills” who mostly treated public patients, nor that the officials had acted in a “high-handed, arrogant and aggressive manner”, had displayed an “arrogant, foolhardy and recalcitrant attitude”, and had acted “in flagrant disregard of the laws of our country”.
- The Court confirmed both orders against the Department with a punitive attorney and client scale costs order, but the real victory for the public lies in the Court’s clear indication that – had it been asked to do so – it would have ordered the errant officials to pay the legal costs personally.
So the next time a “bad egg” bureaucrat abuses your rights . . .
When you bump heads with one of the “bad eggs” try this – have your lawyer formally warn him/her (and their superiors) that you will do everything you can to hold them personally liable for all your costs. Our courts are behind you!