Personal cost orders: protecting the public purse
Author Wesley Vos
Affiliations: BCom LLB cum laude, Candidate Attorney: Bowmans
Source: Stellenbosch Law Review, Volume 31 Issue 1, 2020, p. 138 – 157
South African courts are employing a novel instrument in the fight against corruption, such instrument being the imposition of a personal costs order against state officials. This article briefly discusses corruption and accountability in state institutions and argues that ordering personal cost orders against state officials is a promising prospect in the fight against corruption. Personal cost orders are then analysed by addressing eight concerns that arise when such orders are imposed. These concerns are: what the legal basis is for being held personally liable for costs; whether there is a uniform test to be applied when considering a personal cost order; whether such an order can be made on a punitive scale; the joinder of affected parties; whether it can be imposed without the matter being heard in open court; the power of courts to impose such an order; whether it infringes on the separation of powers doctrine; and lastly, whether it could lead to an ineffective system of public administration. The article concludes by finding that there is no legislative deficit in the fight against corruption and finds that until officials are held personally accountable for their misfeasance, they will continue to exploit their position as they are protected by their public office. This “protection” and inclination to misappropriate public funds might fall away if officials are ordered to pay legal costs in their personal capacity.