Voices

Courts must suffocate liars with personal cost orders

2019-08-06 22:45

Courts are on the right track in their refusal to sympathise with the dishonest and the uncouth who abuse public trust

We must always remember that the apartheid and colonial bigotry was based on lies, deceit and dishonesty.

We must also always remember that apartheid and colonial bigots, and their state functionaries, operated on the basis of duplicity.

The members of Parliament, the executive and some members of the apartheid judiciary thrived on lies and deceit, and were handsomely rewarded for that.

The cover-ups, even by some members of the judiciary then, of apartheid brutality were done in circumstances of extreme dishonesty.

We must therefore be very careful as a society to not undermine the critical importance of honesty and integrity in public affairs and to seek to protect, directly and indirectly, those whom the courts have found not to be honest.

Our Constitution requires those who exercise public power to do so and act without fear or favour.

This constitutional injunction is premised on two important principles.

The first is to ensure a measure of absolute integrity in decision-making by those who wield and exercise public power.

The second is to ensure a high standard of ethical and professional conduct in the performance of duties and exercise of powers.

This seeks to protect the public against abuse of power and prevent rendering the public vulnerable to bad public decision-making with impunity.

The second principle is intended to protect the decision-makers and those performing public functions from gravitating into a state of incompetence to their own and the public’s detriment.

Personal cost orders are an exception to the rule. Judges exercise discretion when determining the issue of costs.

Although the rule is that costs generally follow the outcome, it is not always that once a judgment is against a litigant, the court will order costs against the unsuccessful litigant.

It is not unheard of that courts often make adverse punitive cost orders or, for that matter, costs orders even against the lawyers who represent clients to pay the costs from their own pockets.

Lawyers who, for instance, act in an unprofessional manner or are grossly negligent and/or part of abusing the court process are often visited with this type of punishment.

The same applies to litigants who abuse court process or are dishonest in their dealings with the court.

State employees are appointed with the sole purpose of serving the public interests and must always act in the public interest. They are the tool through which the state carries out its obligations and responsibilities to the public.

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They are the eyes and ears, the feet, the heads and the hands of the state. They enjoy a special status as the people who exercise public power and use state authority.

There must be a higher level of expectation on their conduct and behaviour when they perform state functions.

Citizens must sleep comfortably at night knowing state functionaries are there to perform their duties with a high level of integrity, diligence and care.

What members of the public do not want are state functionaries who do not make decisions at all or who make decisions in a state of fear or favour.

They must not fear that their decisions will offend their political masters even if the decisions are correct, or that their decisions will not please those who want outcomes which only suit them.

They must not take decisions which improperly favour some to the detriment of others.

In equal measure, they must indeed live with the fear that if their decisions are subjected to judicial scrutiny and they are found to have acted improperly, there will be personal consequences for them.

Ordinarily, the state as an employer is obliged to visit consequences upon its functionaries who act improperly, and to always take corrective action against such officials.

Often public servants lose their jobs as a consequence of their improper conduct.

This however limits the impact of conduct between the employer and the employee and does not often take into account the impact on the public at large.

Bad decisions

Bad decisions, particularly the ones made with either fear or favour or made in circumstances of the lapse of moral courage, often violate human rights or undermine the rule of law.

For this reason, they are an affront to the Constitution and our constitutional values.

When state functionaries abuse their powers, act contrary to public interest and use lies and deceit in the performance of their duties or exercising of their powers, they become a serious threat to constitutional democracy and human rights.

It is one thing for a state functionary to make a bad decision in good faith and another for that person to do so in bad faith.

Bad faith involves a deliberate act of undermining and violating the legal and ethical obligations a functionary has.

Courts will not simply go out of their way to conclude that a state functionary lied to it, acted in bad faith or was grossly negligent in the performance of his or her duties or exercising of his or her powers.

The court relies on evidence before it and those who made the impugned decisions or actions owe it to the courts to demonstrate and prove they acted in good faith even if they erred.

They owe it to the public and the courts to be honest to enable the court to dispense justice in a proper manner.

To mislead a court means the person doing so seeks to further manipulate even the judiciary to escape scrutiny and prevent the court from providing redress to those affected.

Public interest requires that redress be provided when rights are violated and the laws not adhered to.

Incompetence cannot be an excuse for bad decision making.

State functionaries who are incompetent and who do not take responsibility for their actions are as dangerous to our constitutional democracy as are murderers to the sanctity of life.

Those who have no capacity to perform their duties must not be appointed to these positions and should not accept such appointments.

Their acceptance of these positions means that they accept their obligation to be diligent.

Where they have shortcomings, it’s their primary responsibility to seek help and develop their capacity.

They cannot occupy positions and derive the benefits from them when they give no value to the public.

Courts are on the right track in their refusal to show sympathy to the dishonest and the uncouth who abuse public trust.

One of the tenets of our constitutional democracy is accountability and responsibility without which our democracy is at great risk.

One of the consequences of ineptitude and dishonesty is clearly the capture of part of the state.

The key players in this saga deliberately abused their powers, were dishonest and advanced personal interests at the expense of public wellbeing.

It is disconcerting when those tasked with protecting the public interests become a threat to that very public.

It gets worse when they use lies and deceit in the execution of their duties. It becomes the worst form of betrayal which must be met with a concomitant rebuke by our courts.

As part of asserting judicial control over the exercise of public power, courts must always inquire into whether those exercising such power are acting with the highest level of integrity.

Courts must discourage and set an example with the trustees of our constitutional order that dishonesty has no place in our public service and constitutional order.

They must make, among other rulings, personal cost orders the norm and fashionable for those found wanting in the same way that courts treat callous criminals when sentencing them.

There must never be a space for liars to be clothed with constitutional and public power.

They must be suffocated with personal cost orders, among other measures.

Mannya is an advocate and writer

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August 25 2019