Recent developments regarding costs awards in Constitutional and Public-interest Litigation

• Author: Tumo Charles Maloka
• DOI: 10.25159/2522-6800/6201
• Published date: 03 December 2019
• Date: 03 December 2019
• Pages: 1-22

Article

Southern African Public Law

https://doi.org/10.25159/2522-6800/6201

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online)

Volume 34 | Number 2 | 2019 | #6201 | 22 pages

© Unisa Press 2019

Recent Developments Regarding Costs Awards in

Constitutional and Public-interest Litigation

Tumo Charles Maloka

Associate Professor, School of Law, University of Limpopo

tumoc.maloka@ul.ac.za

Abstract

This contribution examines the contours of costs jurisprudence since the

foundational trilogy of Ferreira v Levin NO 1996 (2) SA (CC), Affordable

Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) and Biowatch Trust

v Registrar Genetic Resources 2009 (6) SA 232 (CC). Given that the general

rule is not to award costs against unsuccessful litigants when they are litigating

against state parties, the first stage of enquiry asks whether the case raises a

public interest matter of transcendental importance. The second stage of enquiry

delves into the impact that adverse costs orders might have on litigants seeking

to vindicate constitutional rights. The last stage of enquiry considers the knotty

question concerning personal costs awards against public officer-holders for

conduct at variance with the Constitution. The signposts that emerge from

evolving case law is that if an unsuccessful party lowered its ethical and

professional standards in pursuit of a constitutional cause, such party may be

mulcted with costs. It is trite that courts will not hesitate to exercise discretion

to impose adverse costs, and specifically hold public representatives personally

liable for costs in order to reinforce the constitutional tri-norms of

accountability, responsiveness and openness.

Keywords: costs awards; public-interest; constitutional litigation; personal costs

orders; accountability, responsiveness and openness.

Article

2

Introduction

Costs awards are inherent in constitutional litigation. However, they are less studied and

expositions of trends towards the development of coherent costs-awards jurisprudence

are strangely neglected in the scholarly literature.

1

Costs hardly hold the allure that the

decisions on the merits do. Decisions on the merits lie at the heart of the master narrative

that shape constitutional adjudication; by way of contrast, costs orders describe the tail-

end of judgments. In the usual case, the allocation of costs takes up a relatively

insignificant portion of the court’s judgment,

2

whereas the court’s opinion on the merits

may span hundreds of pages.

3

If public-interest litigation is the reigning queen at

Constitution Hill, then costs awards embody the lesser majesty of the lower nobility at

the Constitutional Court.

4

This article seeks to isolate some of the difficult and

interesting questions concerning costs awards in constitutional and public-interest

litigation. The first line of enquiry to be considered is the constitutional import of the

dispute. The second line of enquiry focuses on the impact that adverse costs orders

might have on litigants seeking to vindicate fundamental rights. The third line of enquiry

entails asking whether and under what circumstances public officer-holders should be

held personally liable for costs arising from conduct discordant with the requirements

of the Constitution.

Genesis of the Revolutionary Trend in Costs Jurisprudence

In the well-known case of Ferreira, the Constitutional Court endorsed the long-standing

High Court and Appellate Division principles on costs awards by stating that costs are

in the discretion of the court.

5

In general, the unsuccessful party must bear the costs.

1

For a contemporary exposition see Max du Plessis, Glen Penfold and Jason Brickhill, Constitutional

Litigation (Juta 2013) chapter ‘Costs’; Siyambonga Heleba, ‘Mootness and the Approach to Cost

Awards in Constitutional Litigation: A Review of Christian Roberts v Minister of Social

Development Case No 32838/05 (2010) (TPD)’ (2012)15(5) Potchefstroom Electronic LJ 62; Rosaan

Kruger, ‘The Buck Stops Here: Eastern Cape High Court and Cost Orders in Litigation Against

Organs of State’ (2011) 25(1) Speculum Juris 72.

2

Biowatch Trust v Registrar Genetic Resources 2009 (6) SA 232 (CC) (Biowatch) para 38;

Competition Commission of SA v Pioneer Hi-Bred International Inc 2014 (2) SA 480 (CC) paras 47–

48.

3

A tome of 500 pages: Doctors for Life International v Speaker of the National Assembly 2006 (6) SA

416 (CC) (Doctors for Life) judgment tests the intestinal fortitude of even the most avid reader.

4

The appellate courts have rarely grappled with the issue of costs in the more expansive manner of

Ferreira v Levin NO; Vryehoek v Powell 1996 (2) SA 621 (CC) (Ferreira); Affordable Medicines

Trust v Minister of Health 2006 (3) SA 247 (CC) (Affordable Medicines); Biowatch; Glenister v

President of the RSA 2013 (11) BCLR 1246 (CC); Justice Alliance of SA v Minister of Safety &

Security 2013 (7) BCLR 785 (CC) (Justice Alliance of SA II) and Helen Suzman Foundation v

President of the RSA 2015 (2) SA (1) (CC) (HSF); Tebeila Institute of Leadership, Education,

Governance and Training v Limpopo College of Nursing 2015 (4) BCLR 396 (CC) (Tebeila).

5

Trencon Construction (Pty) Ltd v IDC SA Ltd 2015 (5) SA 245 (CC) paras 83–89 and NDPP v Zuma

2009 (2) SA 277 (SCA) para 82.