Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others

• Jurisdiction: South Africa
• Judge: Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J, Sachs J and Trengove AJ
• Judgment Date: 19 March 1996
• Citation: 1996 (2) SA 621 (CC)
• Docket Number: CCT 5/95
• Hearing Date: 19 March 1996
• Counsel: D N Unterhalter for the applicants. No appearance for the other parties.
• Court: Constitutional Court

Ackermann J: E

[1] On 6 December 1995 this Court declared s 417(2)(b) of the Companies Act 61 of 1973 invalid to the extent indicated in the order. [1] No order was made as to costs but the parties were afforded an opportunity of pursuing this matter further. [2] Only the applicants in the Ferreira and Vryenhoek matters have availed themselves of this F opportunity.

[2] The following are the salient facts relating to costs. The applicants' applications to the Witwatersrand Local Division of the Supreme Court for interdicts pending the determination by this Court of the constitutionality of s 417(2)(b) of the Companies Act ('the Act') were dismissed by Van Schalkwyk J. The appeals of all the applicants to the Full Bench of the Witwatersrand Local Division against such dismissals were upheld with costs, that Court ordering that the costs of the applicants in the Court of first instance were to be 'costs in the cause in the matter before the Constitutional Court'. [3] G The predominant reason for the applicants' approach both to the Witwatersrand Local Division and to this Court was their objection to answering questions which might tend to incriminate them and the coercive features of s 417(2)(b) of the Act, which not only compelled them to answer such questions, but expressly provided that such evidence, though self-incriminating, could subsequently be used in proceedings against the applicants (which by implication included criminal proceedings). Van Schalkwyk J referred five issues to this Court in terms of s 102(1) of the Constitution of the Republic H of South Africa Act 200 of 1993 (as amended) ('the Constitution'). The first related to the constitutionality of the subsection of the Act referred to; the other four related to declaratory orders relating to the admissibility of evidence in subsequent criminal and civil proceedings against the applicants and the correct procedures to be followed at enquiries in terms of s 417 of the Act. There is nothing to suggest that the I

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A respondents opposed any of these referrals. This Court held that none of these matters had been correctly referred but, in the exceptional circumstances of the case, heard the first matter by way of direct access in terms of s 100(2) of the Constitution. [4]

[3] The Supreme Court has, over the years, developed a flexible approach to costs which proceeds from two basic principles, the first being that the award of costs, unless expressly otherwise enacted, is in the discretion of the presiding judicial officer, [5] and the second that the successful party should, as a general rule, have his or her costs. [6] B Even this second principle is subject to the first. [7] The second principle is subject to a large number of exceptions where the successful party is deprived of his or her costs. Without attempting either comprehensiveness or complete analytical accuracy, depriving successful parties of their costs can depend on circumstances such as, for example, the conduct of parties, [8] the conduct of their legal representatives, [9] whether a party achieves technical success only, [10] the nature of the litigants [11] and the nature of the C proceedings. [12] I mention these examples to indicate that the principles which have been developed in relation to the award of costs are by their nature sufficiently flexible and adaptable to meet new needs which may arise in regard to constitutional litigation. They offer a useful point of departure. If the need arises the rules may have to be substantially adapted; this should however be done on a case by case basis. It is D unnecessary, if not impossible, at this stage to attempt to formulate comprehensive rules regarding costs in constitutional litigation.

[4] Mr Unterhalter, in the heads of argument filed on behalf of the applicants, submitted that the applicants had no choice but to seek relief from the Courts and that E their complaint, namely that s 417(2)(b) of the Act infringed their right against self-incrimination, was upheld by this Court. The fact that they were unsuccessful in respect of four of the matters referred did not detract from the fact that their success in having s 417(2)(b) struck down to the extent indicated in the order was substantial. In this regard reliance was placed on the dictum in Giuliani v Diesel Pump Injector Services (Pvt) Ltd to the effect that

F '(t)he fact that defendant succeeded in reducing the amount claimed by plaintiff does not, in my view, alter the fact that in these circumstances the plaintiff is the successful party in considering the question of costs, because he had to come to G

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A Court in order to succeed to the extent that he did. (See Fripp v Gibbon & Co 1913 AD 354 at 361).' [13]

[5] In relation to s 417(2)(b) of the Act the issue between the applicants and the respondents was whether the former were obliged to answer self-incriminating questions at the s 417 enquiry. The respondents wanted the applicants' evidence in this B regard; the applicants refused. The order granted by this Court does not assist the applicants in their real dispute with the respondents on this part of the case. They...