Constitutional litigation

2017 SCMR 1161 CONSTITUTIONAL-COURT-OF-SOUTH-AFRICA Judicial Precedent

Constitutional litigationOrder as to costsExercise of judicial discretion in awarding costsPrinciplesPower of appellate court to interfere in a costs order made by a court belowScopeApplicants were part of group of students that participated in protest against a public universityApplicants caused extensive damage to the university's property

University filed an application before the Court of first instance and obtained an interdict against several protestors, including the applicants

In addition to granting the interdict, the Court of first instance ordered the applicants to pay university's costs jointly and severally, including the costs of two counsel

Question as to whether the Court of first instance correctly exercised costs discretion

Held, that where the discretion exercised by court below was one in the true sense, contemplating that the court choose from a range of options, an appellate court would require a good reason to interfere with the exercise of such discretion

Cautious approach was, therefore, required

Appellate Court may have a different view on whether the costs award was just and equitable, however, it should be careful not to substitute its own view for that of the court below because it may, in certain circumstances be inappropriate to interfere with the exercise of discretion by court below

Primary consideration in constitutional litigation must be the way in which a costs order would hinder or promote the advancement of constitutional justice

"Nature of the issues" rather than the "characterisation of the parties" was the starting point

Costs should not be determined on whether the parties were financially well-endowed or indigent

Applicants in the present case were engaged in a protest because they could not, among other things, afford the university fees

At the heart of the protest was a seething sense of injustice that prevailed among university students and the country at large at the failure of the state and universities to provide free and quality education

Said issue had the effect on the protesters' Constitutional 'right to education', which concerned not only the applicants, but also other students generally in other universities in the country

Whilst the applicants' conduct went beyond the boundary of a peaceful protest, the constitutional context of the issue which lead to the protests had to be taken into account

Issue raised by the protestors, including the applicants, was of genuine constitutional import

Although the applicants were unsuccessful in the courts below, the courts erred in considering the chilling effect the costs order would have on the litigants, in the context of constitutional justice

Applicants were neither frivolous nor vexatious in opposing the University's application for grant of interdict

Court of first instance erred in not applying the general principle on costs in relation to constitutional litigation and failed to realize that present case did not fall within any of the exceptions to the general principle

Court of first instance did not exercise its discretion judicially in imposing costs on the applicants, therefore the Constitutional Court (present court) was entitled to interfere with the costs award

On a consideration of all relevant circumstances, justice and fairness would best be served if each of the parties were ordered to pay their own costs not only in the Appellate court, but also in the Court of first instance

Constitutional Court directed that each party was to pay its own costs, in the Court of first instance, the Appellate court and the Constitutional Court

Application for leave to appeal was disposed of accordingly.

2017 SCMR 1161 CONSTITUTIONAL-COURT-OF-SOUTH-AFRICA Judicial Precedent

Constitutional litigationOrder as to costsPrinciples

General rule in constitutional litigation was that an unsuccessful litigant in proceedings against the state ought not to be ordered to pay costs

In the first place said rule diminished the chilling effect that adverse costs orders would have on parties seeking to assert constitutional rights

Constitutional litigation frequently went through many courts and the costs involved could be high

Meritorious claims might not be proceeded with because of a fear that failure could lead to financially ruinous consequences

Similarly, people might be deterred from pursuing constitutional claims because of a concern that even if they succeed they would be deprived of their costs because of some inadvertent procedural or technical lapse

Secondly, constitutional litigation, whatever the outcome, might ordinarily bear not only on the interests of the particular litigants involved, but on the rights of all those in similar situations

Thirdly, it was the state that bore primary responsibility for ensuring that both the law and state conduct were consistent with the Constitution

Where there was a genuine, non-frivolous challenge to the constitutionality of a law or of state conduct, it was appropriate that the state should bear the costs if the challenge was good, but if it was not, then the losing non-state litigant should be shielded from the costs consequences of failure

In this way responsibility for ensuring that the law and state conduct was constitutional was placed at the correct door

General rule on costs in constitutional litigation, however was not inflexible and there may be circumstances that justified departure from the general rule such as where the litigation was frivolous or vexatious, or the conduct on the part of the litigant deserved censure by the Court which may influence the Court to order an unsuccessful litigant to pay costs

Ultimate goal was to do that which was just having regard to the facts and circumstances of the case.