NEWS & ANALYSIS

Hitting corrupt officials where it hurts

Cherese Thakur writes on personal cost orders against public officials

Part I: A look through the Case Law

22 May 2018

STRIKE WHERE IT HURTS: THE POCKET

Corrupt government officials gladly flout their solemn oaths of office and sacrifice their reputations in pursuing money, power, or both. Further, as witnessed in news media many times, even those who are not corrupt per se appear to act with a wilful recklessness and complete disregard for the cost of their decisions. It follows that something more than public condemnation is required to deter this behaviour, especially when holders of political office are shielded from the consequences of their unethical activities by complicit political institutions.

What is needed is a legal mechanism to jolt malicious or grossly incompetent officials to act in the public interest and being responsible for the consequences of their conduct. Further, where applicable, this accountability should extend not just to specific decision-makers, but also to those who are responsible for supervising them. The question is: what can be done in law to hold such persons liable for their misdeeds in office in their personalcapacity?

LOOKING TO THE LAW

In more egregious cases, criminal law such as the Prevention and Combatting of Corrupt Activities Act[i], the Prevention of Organised Crime Act[ii] and common law rules in relation to theft and fraud can be applied. But what of conduct that is not overtly criminal yet is still carried out in bad faith or is grossly incompetent?

Wayward public officials have demonstrated many times how titles and offices can be used to evade calls for accountability by deftly wielding excuses - such as receiving insufficient information or bad advice from subordinates - to deflect responsibility away from themselves. An alarming trend that has emerged is that when such officials are called upon to account for their conduct in court, they use state funding afforded to their offices to defend themselves, even when the charge laid against them is that they have acted maliciously or incompetently.

It is generally understood that political appointees such as ministers will not always have experience in the sector that they are assigned to lead. Even so, their appointment comes with the expectation that they will conduct themselves diligently and in good faith, surrounding themselves with skilled advisors and enquiring after relevant information so that they can fulfil their duties. In accepting office, they undertake to meet that expectation.[iii]

In addition, it appears to be forgotten that public officials do not act in isolation. They are part of a system that is equipped with structures for reporting and oversight. Accountability must extend upwards. Every person at each “link” in the accountability chain should also be responsible for bad decisions.

And yet such bad decisions persist in the civil service. At times officials are called to account for this failure in court. This creates a valuable window of opportunity for courts to craft orders that pierce the shield of office and hold them liable as individuals.

A CASE LAW GUIDE TO PERSONAL COSTS ORDERS AGAINST PUBLIC OFFICIALS

WHAT NOT TO DO – THE LUSHABA CASE

The 2016 Constitutional Court case of Minister for the Executive Council for Health, Gauteng v Lushaba[iv] (“Lushaba”) is instructive as to how courts should not approach granting relief in the form of a personal costs order. The matter came on appeal from the Gauteng High Court which had ordered that the Minister for the Executive Council (MEC) was liable for damages in respect of a claim based on medical negligence. It had issued a punitive costs order against the MEC in his nominative capacity. The Court then went further by calling on the MEC to show cause on affidavit why he should not also be held liable personally for costs on a punitive scale. If the MEC’s view was that he was not liable, he was required to identify persons in his department or in the office of the State Attorney who should be held responsible for costs.

The MEC’s affidavit referred to two other persons but averred that their decisions were reasonable in the circumstances and in line with procedure. They, together with a third person (from the office of the State Attorney) also filed affidavits explaining their role in relation to the case. The High Court used this evidence as a basis for an order to the effect that these three individuals (and not the MEC) were liable for costs in their personal capacity and on a punitive scale.

In its judgment, the Constitutional Court acknowledged the “flood of medical negligence litigation aimed at provincial health departments”, noting that “worst of all, litigious lawyers seem to prosper and bureaucrats seem to get off scot-free”. However, it found that the High Court had attempted to apply “inapposite implements” to a structural problem: the first order, which had called upon the MEC to identify individuals who should bear responsibility, had impermissibly authorised the MEC to exercise a judicial power. It had effectively allowed the MEC to decide for himself whether he was responsible, and if not, to identify persons who (in his view) were.

But the MEC had not done this – rather, his affidavit did not attribute liability to any other person. The Court also took issue with the High Court’s conclusion that, as the three individuals had deposed to affidavits, the requirement that they be given an opportunity to be heard had been satisfied.

The defects in the High Court’s order were substantial: the three individual officials had not been joined as parties to the matter, and as the court’s initial order did not call on them to make representations as to why they should not be held liable, there was no basis in law for the Court to exercise its judicial authority over them. Further, the Court had punished them without a hearing, in breach of a fundamental principle of the rule of law and section 34 of the Constitution. The personal costs order made by the High Court was accordingly set aside.

It emerged from this judgment that while the Court is not blind to the injustice in taxpayers having to foot legal bills for the failings of errant officials, it is imperative that any person that may be mulcted with a personal costs order should have an adequate opportunity to be heard – either by being joined in the proceedings or being allowed to make representations.

TREADING CAREFULLY: THE CASE OF WESTWOOD

Courts in subsequent cases have internalised the warnings in Lushaba. This much is clear from the 2016 judgment of the KwaZulu-Natal High Court in Westwood Insurance Brokers (Pty) Ltd v eThekwini Municipality[v] (“Westwood”), which concerned the review of a tender. In its initial order, the Court per Pillay J had reserved the question as “to any further order that the Court may make regarding the recovery of costs by the first respondent from its officials involved in the process of the tender” and invited any person who had an interest in this further order to make submissions to the Court.

The Court’s judgment acknowledged the need “not to trench on the rights of potential transgressors, especially the rights to due process and fairness” as well as addressing the concern that certain costs orders could result in incurring more costs or infringe on the principle of the separation of powers.

It addressed these concerns in its judgment. In order to prevent further costs, the Court chose to dispose of the matter having regard to evidence on affidavit and in-chamber consultations (unless a party wished to be heard in open court). The issue of separation of powers also required a careful touch. Therefore, it did not rush into making an order. It directed that the eThekwini Municipality serve its order on a number of political office bearers who were in positions of responsibility with regard to the award of the tender, including its Mayor, Municipal Manager, and the Auditor-General.

Further, in acknowledging that it was not in a position to name the persons who had acted “unlawfully, unconstitutionally and unethically” regarding their involvement in the unlawful tender award, the Court ordered the Mayor and Municipal Manager to provide affidavits naming those persons who were so involved. Those individuals were to be provided with a copy of the judgment and given leave to file affidavits to assist the Court to determine why the contract was awarded. The Court made a wide-ranging order targeting those who were involved with the award of the contract, inviting them to file affidavits to show cause why they should not be held liable for the Municipality’s costs in their personal capacity.

On 5 April 2017, the Court delivered a further judgment which found the explanations proffered to it pursuant to its prior order to be deeply insubstantial. This caused it to characterise the decision to award the tender unlawfully as “so bizarre that unsurprisingly even those who participated in making it cannot explain it”.

It took a dim view of the information provided, noting a recurring theme of non-disclosure by the officials called upon to give an explanation for the tender award. This tight-lipped stance was telling in itself, but it also prevented the court from being able to uncover why the participants were, in its words, “negligent, inattentive to their responsibilities and unaccountable” and ultimately left the mystery unsolved as to why a plainly unsuitable bidder was awarded a tender. Instead of enlightening the court, the responses provided were found by the Court to “fortify their failure and continuing refusal to be not only accountable and transparent but also remorseful for their manifestly inexplicable decision which renders them liable for costs”. The language used by the Court clearly shows its frustration with the officials’ conduct, and the pains that it took to uncover the reasons behind it. Ultimately, however, evidence on affidavit can only go so far, and in this case, there was not enough for the Court to root out which individuals were responsible and whether they were motivated by corrupt purposes.

In the circumstances, the best it could do was to make an order requiring a number of identified officials to pay fifty per cent of the eThekwini Municipality’s costs in their personal capacity. A further order was made instructing the municipality’s accounting officer to report to the Court regarding the steps taken to recover the costs as per the judgment.

The Court, overcautious, granted “any person having an interest in [its] judgment” leave to apply for leave to appeal against it as part of its order. Unsurprisingly, the officials have done so[vi].

The Westwood appeal is not yet finalised, and so at this stage it is not clear whether the Court’s efforts to provide a fair procedure were enough to ensure that the officials will be made to dig deep to pay the municipality’s legal costs. What is clear is that in its (laudable) pursuit to compel the officials to take responsibility personally, the court was pulled in two directions: on the one hand, it tried to prevent the parties from incurring further costs by taking evidence on affidavit instead of in a hearing. On the other, however, the evidence provided to it on affidavit was grossly inadequate and shed no light on how or why the unlawful decision was taken. There was no opportunity for further cross-examination to extract the truth of the matter. Worse still, despite the Court’s best efforts, this procedure may have allowed some officials who were responsible to go unpunished.

A question arises whether the Court could have gone further by calling on the Municipal Manager and the Mayor to show why they too should not be mulcted with a personal costs order for failing to oversee the structures that made the unlawful tender award. The Court itself had highlighted their respective positions of responsibility when it ordered that the judgment be served on them. Perhaps if it had done this, the Municipal Manager and Mayor would have ensured that their subordinates provided a more coherent account of what went wrong in the award of the tender, instead of attempting to shift blame, to the Court’s frustration.

A SUCCESS STORY

Shortly after the case brought by the Helen Suzman Foundation against the conduct of the SABC Board collapsed[vii] September 2017 saw the handing down of a costs order in the high profile so-called “SABC 8” case[viii] - one which has been characterised as an instance of “vanity litigation” where officials oppose litigation on highly spurious grounds[ix]. Here, the Labour Court expressed its concern that that the dismissals that formed the subject of the litigation were “authorised with reckless disregard for the pending applications [in relation to the dismissals] and with little regard for the relative costs and benefits to the SABC of doing so”. It allowed the persons involved in the decision to file affidavits as to why they should not be held personally responsible and heard argument on this question over two days.

After considering evidence and argument before it, the Court ordered the SABC along with its former Chief Operating Officer Mr Hlaudi Motsoeneng and the acting Group Executive of News and Current Affairs Mr Simon Tebele pay the applicants’ costs jointly and severally. The costs would not doubt have been substantial, as they related to three hearings over a collective five days in court. Later, Mr Motsoeneng and Mr Tebele were refused leave to appeal the costs order against them[x].

CONCLUSION

Personal costs orders against public officials are an important remedy in the fight against corruption, malfeasance, and ineptitude in government. There is a need for robust jurisprudence on when this remedy can be applied and the correct procedure to be employed. And so, despite the obvious difficulties, litigants in such matters should persist in seeking this remedy where appropriate[xi] to contribute to and strengthen this aspect of law. Further, courts would do well to interrogate the chain of supervision that applies to bad decision-making and not shy away from granting such orders wherever a person in a position of responsibility failed in their duties.

Part II will explore ongoing litigation where courts have called on officials to show cause why they should not be liable for costs in a personal capacity and look at further issues regarding this remedy.

Footnotes to part 1 (part 2 follows below)

[i] 12 of 2004.

[ii] 121 of 1998.

[iii] The oath or affirmation of office in respect of ministers and deputy ministers is set out in schedule 2 to the Constitution as follows:

I, A.B., swear/solemnly affirm that I will be faithful to the Republic of South Africa and will obey, respect and uphold the Constitution and all other law of the Republic; and I undertake to hold my office as Minister / Deputy Minister with honour and dignity; to be a true and faithful counsellor; not to divulge directly or indirectly any secret matter entrusted to me; and to perform the functions of my office conscientiously and to the best of my ability.”

[iv] 2017 (1) SA 106 (CC), [2016] ZACC 16.

[v] [2016] ZAKZDHC 46.

[vi] Broughton, T “Durban officials appeal costs order over botched tender” accessed at https://www.news24.com/SouthAfrica/News/durban-officials-appeal-costs-order-over-botched-tender-20170801 on 10 April 2018.

[vii] The erstwhile Chief Operating Officer and Board withdrew their opposition to the Helen Suzman Foundation’s case and settled the matter.

[viii]Solidarity and Others v South African Broadcasting Corporation 2016 (6) SA 73 (LC); [2016] ZALCJHB 273.

[ix]See the article by Carmel Rickard “Labour Court strikes a blow against vanity litigation” at http://allafrica.com/stories/201607290335.html accessed on 12 April 2018.

[x] “Hlaudi Motsoeneng refused leave to appeal SABC 8 costs ruling – Solidarity” in the Citizen, accessed at https://citizen.co.za/news/south-africa/1719558/hlaudi-motsoeneng-refused-leave-to-appeal-sabc-8-costs-ruling-solidarity/ on 12 April 2018.

[xi]The Court in the unreported case of De Vries v MEC: Free State Department of Health [2017] ZAFSHC 23 declined to grant a personal costs order on the basis that the relief had not been requested by the applicant. Interestingly, it is not apparent from the Westwood judgment whether the relief had been specifically prayed for by the applicant. The Court, at paragraph 66, specifically states that its mandate to enquire as to whether any officials should be held liable personally

comes from section 172(1)(b) of the Constitution which empowers the courts when deciding a constitutional matter within its power to ‘make any order that is just and equitable’. In deference to the separation of powers I confine the exercise of my discretion to my judicial powers to determine an appropriate order for costs in execution of the role of the courts as guardians of our Constitution”.

Arguably, that an applicant has not asked for the remedy should not be a complete bar to a Court granting it, on the basis of its wide jurisdiction under section 172 of the Constitution, provided that due care is exercised not to trench on the principle of the separation of powers.

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PART II - LEGAL COSTS ORDERS - AN UNDERUSED TOOL FOR 

Part I of this brief series explored recently decided case law where orders were handed down holding public office-bearers personally liable for their impugned conduct in the context of litigation. The purpose of this Part II is to examine cases currently before the courts where such orders are contemplated.

And what cases they are - aimed squarely at high-ranking holders of political office, including a current member of Cabinet, Ms Bathabile Dlamini, and the former President of South Africa, Mr Jacob Zuma, both of whom are now fighting to avoid personal liability. Unsurprisingly so, given the potentially ominous financial and political consequences of such a court order.[i]

MR JACOB ZUMA

The genesis of Mr Zuma’s potential liability for legal costs in his personal capacity is the judgment in President of South Africa v The Office of the Public Protector and Others[ii]. This case was the former President’s attempt to fire a salvo at the remedial action proposed by Public Protector – the appointment of a Commission of Inquiry - in her report State of Capture.

After finding that Mr Zuma was not entitled to the relief that he sought in terms of the review, the High Court went on to consider costs. On this issue, the Court did not hold back in criticising Mr Zuma’s actions. It referred to the

reckless misconception underpinning the [former] President’s application seeking to review and set aside the remedial action. The review application was a clear non-starter and the [former] President was seriously reckless in pursuing it as he has done. His conduct falls far short of the high standard expressed in section 195 of the Constitution”.

The word “reckless” appeared again a paragraph later along with the descriptor “ill-advised” when recounting the former President’s conduct in launching the review application against the Public Protector’s decision. In doing so, the Court found that Mr Zuma had failed to support the Public Protector, a constitutional institution, despite his being afforded an opportunity to confront and address the allegations against him. As such, he was found to have acted unreasonably in the circumstances. Therefore, the Court found, a personal costs order was justified and should be granted against him.

The Court’s order as to costs was sharply decisive. Without offering any further opportunity for representations, it ordered Mr Zuma to pay the costs of the application in his personal capacity on a punitive scale.

A week after the ruling, while Mr Zuma was still in office as President, he launched an appeal against the High Court’s cost order[iii]. In setting out grounds for appeal, Mr Zuma referred to Black SashTrust v Minister of Social Development and Others[iv] (“Black Sash”), emphasising how the Constitutional Court had stated that where costs orders are concerned “potentially affected parties should be joined in the proceedings in their personal capacities and given an opportunity to explain their conduct in relation to each of these issues”. He therefore argued that the Court had erred in law by not doing either of these before making its order.

Mr Zuma subsequently resigned his position on 14 February 2018, after which President Cyril Ramaphosa was inaugurated as President. On 6 April 2018, President Ramaphosa’s lawyers withdrew the appeal against the cost order against Mr Zuma, leaving him in a precarious position of having to fund his appeal out of his own pocket[v].

If Mr Zuma’s appeal fails, he will liable for approximately R10 million in legal costs[vi]. In deciding whether to continue with the appeal, something that must have weighed on his mind is the Democratic Alliance’s judicial review of a “deal” Mr Zuma concluded in 2006 to the effect that the State would pick up his legal costs[vii]. If the application succeeds, it could result in an order that he repay money the State paid on his behalf in defending cases that concerned him in his personal capacity. This is a daunting prospect, given Justice Minister Michael Masutha’s disclosure to Parliament that Mr Zuma’s legal fees during his time in office ran to approximately R24 million.[viii]

Mr Zuma’s situation is interesting. Considering the grounds raised on appeal against the personal costs order in light of recent case law as discussed in Part I of this brief series, there may well be a basis upon which the appeal can succeed: he was not afforded an opportunity to argue reasons as to why he should not be held liable in a personal capacity. This raises a question of whether a special, higher standard of conduct is expected of a person in the position of President which would override or reduce generally accepted requirements to be adequately heard – one which no doubt will be answered when the appeal is decided.

MS BATHABILE DLAMINI

The Constitutional Court is in the process of considering whether a costs order should be made against Ms Bathabile Dlamini, the current Minister of Women in the Presidency, in her personal capacity. Dlamini’s potential liability comes about due to her former role as Minister of Social Development and her oversight over the social assistance debacle giving rise to the judgment in AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others (“AllPay”)[ix] and a number of other related judgments.

In one such judgment, Black Sash, the Constitutional Court issued an order that called upon Ms Dlamini to show cause why she should not be joined to the proceedings in her personal capacity and why should not be made to pay the costs of application out of her own pocket. The Court highlighted that Ms Dlamini, as Minister, was ultimately responsible to ensure that SASSA fulfils its functions. Despite this, attempts made to elicit evidence as to what steps she took after the second AllPay judgment were fruitless. The Court went on to state that:

Given this chain of responsibility, there may thus be no grounds, in the end, for considering whether any individual officials of SASSA should be mulcted, personally, in costs. 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.

With this foundation laid, the Court concluded that more scrutiny was required but only after the joining of affected officials in their personal capacities so that they may provide an account of their involvement to the Court. Eventually, the Court joined Ms Dlamini in her personal capacity. However, disputes of fact arose between the affidavits provided by Ms Dlamini and by two officials – the CEO of SASSA and the deputy director-general of the Department for Social Development (both of whom have since resigned their posts). In order to get to the bottom of these disputes of fact, the Court appointed retired judge Bernard Ngoepe to conduct an inquiry in terms of section 38 of the Superior Courts Act[x]. The Court honed in on a number of specific questions that Ngoepe J was required to inquire into and report on to the Court.

The inquiry was extensive – oral evidence was heard between 22 January and 19 March 2018 – during which Ms Dlamini and the two officials gave testimony. Ms Dlamini was given the opportunity to make written submissions as well, including one made after Ngoepe J filed his report[xi] setting out his findings on 7 May 2018. It appears that one ground that Ms Dlamini has advanced in her defence against a costs order is that the Constitution envisages that it is the National Assembly, and not the courts, who are responsible to hold members of Cabinet accountable for their conduct in office.[xii]

By ordering this inquiry, the Court had given Ms Dlamini more than ample opportunity to present her version of events and motivate to the Court why she should not be held liable in her personal capacity.

It is now for the Court to consider all the evidence before it along with the findings of Ngoepe J and come to a conclusion on this important question: whether Ms Dlamini should be made to pay what must by now be the mammoth costs bill racked up in the SASSA debacle, and if so, the extent of her liability.[xiii] A personal costs order on this scale is unprecedented, and would no doubt be a wakeup call for any official whose conduct could potentially leave them in a similar position.

CAN LIABILITY BE EXTENDED TO LEGAL ADVISORS?

Thus far, the focus has been on personal liability of public officials. But is there scope to go even further by asking whether legal advisors can be penalised on the basis of counsel provided to their clients and upon which their clients subsequently acted. For instance, should lawyers be held liable for legal costs where they advise their clients to make use of the so-called “Stalingrad defence” style of litigation, where matters are endlessly frustrated and sometimes stalled in pursuit of various points of procedure (many of which are ultimately proven to be without merit and dismissed)?

This is a difficult question. Before imputing such liability, consideration should be afforded to the various obligations and ethical duties that lawyers owe. These include obligations to their client to represent them to the best of their ability within the confines of the law, as well as duties held as officers of the court to uphold and respect the law. Recourse for a failure to meet these standards generally lies with complaints to professional bodies such as the Law Society (in the case of attorneys) or the relevant Bar (in the case of advocates).

The conduct of a legal advisor came under scrutiny in a case discussed in Part I of this brief series, Westwood Insurance Brokers (Pty) Ltd v eThekwini Municipality and Others[xiv]. The Court called upon the Municipality’s lawyer to explain her conduct in opposing an interdict preventing the unlawful tender award from being implemented. She stated that her clients had instructed her that the tender award was urgent and the delay in awarding the tender had put the Municipality in a dangerous predicament. This caused her to oppose the urgent application without interrogating the merits of doing so. The Court considered that although she was under significant pressure to oppose, once better information came to light, she withdrew the application. While it did criticise the attorney’s dismissive attitude towards the non-compliance with a clause of the tender as flippant and irresponsible, it absolved her from any liability.

The door on lawyers’ personal liability for costs was by no means closed by this finding. However, this remedy would be most unusual – lawyers act on their clients’ instructions, and ultimately the client is responsible.

CONCLUSION

Balance needs to be struck when awarding costs orders in a personal capacity. It should be viewed as an extraordinary remedy, invoked where there is wilful malfeasance or an inexcusably high degree of negligence. Whether an official’s conduct meets these criteria should be established on evidence and after having given that person an opportunity to explain their conduct. But once the court is satisfied that grounds for such an order exist, there should be no compromise on meting out severe consequences.

This remedy could well be a way forward to prevent office-bearers from embarking on frivolous litigation or the defence of cases where there are no prospects of success – where the apparent (if not stated) aim is not only delaying the inevitable, but also of placing additional financial pressure on other parties who do not have access to state funding. It could force them – under pain of pecuniary cost - to be more considered about their decisions regarding litigation. If used properly, it can be an effective means to ensure officials act diligently in performing their duties – and in so doing, fortify the constitutional project.

Cherese Thakur is a Legal Researcher at the Helen Suzman Foundation. 
This article first appeared as an HSF Brief. 

Footnotes:

[i]Political consequences are no longer relevant to MrZuma, however, since he resigned his position as President, and no longer holds political office.

[ii] 2018 (2) SA 100 (GP), [2017] ZAGPPHC 747.

[iii] The appeal as filed with the court can be found at https://www.scribd.com/document/367755216/Zuma-application-leave-to-appeal#download&from_embed (accessed 17 April 2018).

[iv] 2017 (3) SA 335 (CC), [2017] ZACC 8.

[v] Maughan “Zuma instructs lawyers to challenge R10 million State Capture order against him” Business Day accessed at https://www.timeslive.co.za/politics/2018-04-18-zuma-instructs-lawyers-to-challenge-r10m-state-capture-costs-order-against-him/ on 24 April 2018.

[vi] Maughan “Jacob Zuma to fight attempt to cut his legal funding” Business Day accessed at https://www.businesslive.co.za/bd/national/2018-04-17-jacob-zuma-to-fight-attempt-to-cut-his-legal-funding/ on 17 April 2018.

[vii]Madia “State attorney had no authority to oblige taxpayers to pay Zuma's legal fees – DA argues in court papers” News24 accessed at https://www.news24.com/SouthAfrica/News/state-attorney-had-no-authority-to-oblige-taxpayers-to-pay-zumas-legal-fees-da-argues-in-court-papers-20180323 on 22 May 2018.

[viii] Gerber “Justice Dept paid R24m for Zuma’s legal costs - Masutha” News24 accessed at https://www.news24.com/SouthAfrica/News/justice-dept-paid-r24m-for-zumas-legal-costs-masutha-20180417 on 17 April 2018.

[ix] 2014 (1) SA 604 (CC), [2013] ZACC 42.

[x] 10 of 2013. Section 38(1) provides that:

(1) The Constitutional Court and, in any civil proceedings, any Division may, with the consent of the parties, refer—

(a) any matter which requires extensive examination of documents or a scientific, technical or local investigation which in the opinion of the court cannot be conveniently conducted by it; or

(b) any matter which relates wholly or in part to accounts; or

(c) any other matter arising in such proceedings,

for enquiry and report to a referee appointed by the parties, and the court may adopt the report of any such referee, either wholly or in part, and either with or without modifications, or may remit such report for further enquiry or report or consideration by such referee, or make such other order in regard thereto as may be necessary or desirable.

[xi] The report can be accessed at http://www.judiciary.org.za/index.php/news-category/157-judge-ngoepe-report-sassa-inquiry.

[xii]Thamm “BathabileDlamini says only Parliament can hold ministers accountable, not courts” Daily Maverick accessed at https://www.dailymaverick.co.za/article/2018-05-14-bathabile-dlamini-says-only-parliament-can-hold-ministers-accountable-not-courts/#.WvwZp4iFPIU on 16 May 2018.

[xiii] It bears noting that Ms Dlamini potentially faces yet another costs order in her personal capacity in relation to her service as Minister of Social Development: In an order granted on 23 March 2018 in response to an application by SASSA requesting an extension of the suspension of the declaration of invalidity, the Constitutional Court (after granting the extension) included an order calling upon Ms Dlamini and the current CEO of SASSA to show cause why they should not be liable in their personal capacities for the costs of that application.

[xiv] [2016] ZAKZDHC 46.