n 29 May 2020 the Constitutional Court of South Africa – the highest court in South Africa – handed down judgment in a much anticipated case between the country’s Public Protector and the Minister of Public Enterprises. The second largest political party had intervened.
The case raised at least two issues:
- whether the Public Protector’s remedial action can be suspended by an application for an interdict pending the determination of a review application
- whether the high court was right to order the head of the Public Protector Office, a Constitutional Institution, to pay any amount of the costs of an application from her own pocket when no reason is advanced for that order
The Constitutional Court answered the first question in the affirmative and the latter in the negative. Dealing with the second question, the Constitutional Court again re-iterated the applicable standard of “bad faith” and “gross negligence”. It then concluded on the personal costs issue as follows:
“The judgment of the High Court concerned an interim interdict against the Public Protector. The traditional tests of bad faith or gross negligence, albeit with a constitutional flavour, were not satisfied. Ordering personal costs where there is no factual basis to support this may have a deleterious effect on the Public Protector’s discharge of her vital constitutional mandate, whoever the incumbent might be.”