HELD ACCOUNTABLE

The judiciary has been working on the idea that officials may be ordered to pay damages or legal costs out of their own pockets

Unless you live along the eastern seaboard, you may have missed a significant case unfolding there: Westwood insurance brokers against ethekwini municipality.

With public attention rightly focused on the mega-criminals stealing billions from SA we may not be thinking as much about the ordinary, bad civil servants, the corrupt or indolent, who defy accountability and ignore the courts.

But the judiciary has been working on the problem, refining the idea that officials may, where appropriate, be penalised with an order to pay damages or legal costs out of their own pockets.

Various conditions must first be met. For example, the officials must be given an opportunity to say why they should not be punished in this way. But still, even in the case of disgraced social development minister Bathabile Dlamini, the courts have threatened, rather than acted. In the Westwood case, however, judge Dhaya Pillay has actually ordered certain officials to pay. They were involved in a completely inexplicable decision awarding a tender for the supply of insurance for members of the public against accidental water leaks, to a company offering professional indemnity insurance.

If Westwood, the company that lost the R80m tender, had not litigated to stop the deal, the result would have been “catastrophic” for the people of the municipality, said the judge. She asked how a municipality’s officials could have given a tender to a company supplying the wrong services and commented: “By no stretch of any linguistic or intellectual gymnastics” could professional indemnity cover provide for “water loss arising from underground leaks” at individual homes.

Though she gave all the officials involved in this extraordinary decision at least two opportunities to explain themselves, “no explanation was forthcoming”. People carrying out public services were constitutionally obliged to be “accountable and transparent” and in this case the seniority of some of the officials was an aggravating factor.

As for South West, the company to which the tender was originally awarded, she said no tenderer should be allowed to escape with impunity “for deliberate misrepresentations in public procurement processes”. South West “created the situation that compelled this litigation”, she held, and ordered that the company pay half the costs, and the balance by the officials involved in the decision but who refused to explain themselves and their bizarre award.

When the municipality applied to appeal against her decision, the judge asked that an advocate appear to represent the interests of the people of the city in the hearing, since the municipality was clearly not doing so.

What was the ‘little error’?

Now she has agreed that, given its “novelty”, her decision may be appealed to a full bench of the Kwazulu Natal high court.

In reaching that decision, she considered all the grounds on which the city wanted to appeal, responding with some sharp observations.

For example, the city argued that the judge’s costs order would “terrorise and paralyse employees” into not doing their jobs out of fear that “every little error” would be met with extreme punishment. What was the “little error” in this case, she asked: no-one had yet explained it to the court and it was this “refusal to disclose” that caused her costs order.

As public officials became “more brazen” in their failure to account for the exercise of public power, “afflicting (society) so detrimentally”, the courts needed to act to ensure justice, she concluded.

Whatever happens in the next round, this looks like a judgment headed to the highest court where, given the attitude of the judges in recent cases of official dereliction of duty, the public might finally get some satisfaction.

As public officials become ‘more brazen’ in their failure to account for the exercise of public power, the courts need to act to ensure justice