COSTS
The
general principle by which the Court is guided on the question of
costs is that generally no costs are awarded in constitutional
matters. As is clear from the proviso to Rule 55(1) of the Rules on
costs, the general principle is subject to the overriding principle
to the effect that the award of costs ...
COSTS
The
general principle by which the Court is guided on the question of
costs is that generally no costs are awarded in constitutional
matters. As is clear from the proviso to Rule 55(1) of the Rules on
costs, the general principle is subject to the overriding principle
to the effect that the award of costs is a matter within the
discretion of the court to be exercised judicially, taking into
account the circumstances of each case.
In
the exercise of discretion, courts usually do not order costs against
an unsuccessful private party who seeks to vindicate constitutional
rights against the State or to protect and enforce the Constitution
in the public interest. The rationale for the approach is that orders
of costs in such circumstances might have a
chilling
effect on potential litigants in the same category as the
unsuccessful litigant. As the approach is part of the exercise of
discretion, a court may, in appropriate circumstances, order that
an
unsuccessful private party pay costs in a constitutional case.
The
circumstances that may influence a court to exercise its discretion
and order an unsuccessful private party to pay costs in a
constitutional case include institution of frivolous or vexatious
proceedings. Conduct in the proceedings is a factor a court is
entitled to take into account in deciding whether to award costs
against an unsuccessful litigant. The test is that the award of costs
should be just when regard is had to the facts and circumstances of
the case. It would not be in the interests of the administration of
justice to encourage litigants to believe that they are free to
institute constitutional proceedings challenging the
constitutionality of State action on spurious grounds. Awards of
costs against unsuccessful litigants, in appropriate constitutional
litigation cases, are a necessary means for the protection of the
integrity of the judicial process and maintenance of public
confidence in it.
In
Affordable
Medicines Trust and Others v Minister of Health and Others
2006
(3) SA 247 (CC) the Constitutional Court of South Africa…, held:
“[138]
The
award of costs is a matter which is within the discretion of the
court considering the issue of costs. It is a discretion that must be
exercised judicially having regard to all the relevant
considerations. One such consideration is the general rule in
constitutional litigation that an unsuccessful litigant ought not to
be ordered to pay costs. The rationale for this rule is that an award
of costs might have a chilling effect on the litigants who might wish
to vindicate their constitutional rights. But this is not an
inflexible rule. There may be circumstances that justify departure
from this rule such as where the litigation is frivolous or
vexatious. There may be conduct on the part of the litigant that
deserves censure by the court which may influence the court to order
an unsuccessful litigant to pay costs. The ultimate goal is to do
that which is just having regard to the facts and circumstances of
the case.
In
Motsepe
v Commissioner for Inland Revenue
[1997
2 SA 898 (CC)]
this Court articulated the rule as follows:
'[O]ne
should be cautious in awarding costs against litigants who seek to
enforce their constitutional right against the State, particularly
where the constitutionality of the statutory provision is attacked,
lest such orders have an unduly inhibiting or “chilling” effect
on other potential litigants in this category.
This cautious approach cannot, however, be allowed to develop into an
inflexible rule so that litigants are induced into believing that
they are free to challenge the constitutionality of statutory
provisions in this Court, no matter how spurious the grounds for
doing so may be or how remote the possibility that this Court will
grant them access. This can neither be in the interests of the
administration of justice nor fair to those who are forced to oppose
such attacks.'”…,.
In
De
Lacy and Another v South African Post Office
2011
(9) BCLR 905 (CC) the principle that an award of costs is a matter
within the discretion of a court and that a court may depart from the
general principle that an unsuccessful litigant is not ordered to pay
costs in constitutional litigation was again stated. It was said:
“An
award of costs is a matter which lies in the discretion of a court.
The discretion is exercised judicially and with regard to all
circumstances relevant to the determination of costs. The standard
developed by this Court, to be used in the enquiry, is whether it is
just and equitable to make a particular costs order. We have also
said that where an unsuccessful litigant had sued a State organ with
a view to vindicate a protection afforded by the Constitution, the
litigant should not ordinarily be ordered to pay costs. That,
however, is not an inflexible rule.
A
court may depart from this general rule if it is just and equitable
to do so. This may be the case where the unsuccessful litigant is
shown to have acted with improper motive, or has abused court
process; has conducted the case in a vexatious manner; has not
properly adhered to the rules of court; has made sustained and
unwarranted attacks on other litigants or witnesses or judicial
officers concerned or has not pursued the claim in good faith.
This limited catalogue is not intended to be exhaustive in as much as
what may be an appropriate costs order, even in constitutional
litigation, and may be conditioned by the circumstances of the
case.”…,.
The
above authorities show that costs would be awarded in constitutional
litigation in any of the following circumstances -
(i)
Where the litigation is conducted in a frivolous or vexatious manner;
(ii)
Where the litigation amounts to an abuse of court process;
(iii)
Where the litigation is motivated by improper motive;
(iv)
Where there is non-compliance with the Rules of Court;
(v)
Where unwarranted attacks are made on other litigants, witnesses or
judicial officials; or
(vi)
Where the claim is pursued with mala
fides.
The
list is not exhaustive as cost orders must be made on a case by case
basis if there is to be justice in Constitutional litigation.
The
applicants made an application for leave for direct access without
compliance with the Rules of Court. They sought relief in respect of
an application they intended to place before the Constitutional Court
when the relief they sought in that application was groundless. They
must have known that the relief they sought could not be granted on
the allegations they made.
They
made a frivolous application. The litigation amounted to abuse of
court process.
The
applicants made malicious allegations of improper conduct against
officials in the registry of the Constitutional Court, accusing them
of colluding with State security agents to make documents relating to
their application disappear. They knew that the allegations were
false. They conducted themselves in this manner to attract publicity
for political reasons.
Although
the applicants are unsuccessful private parties in a Constitutional
case, their conduct justifies an award of costs against them.
Counsel
for the fourth respondent
argued
that costs on a legal practitioner and client scale should be ordered
against the applicants. In the opposing affidavit and the heads of
argument, the fourth respondent prayed for the dismissal of the
application with costs. There was no prayer for an order of costs on
the punitive scale.
Rule
55(2) of the Rules provides that if the Court or the Judge considers
that the conduct of a party has been such as to warrant an order of
costs on a legal practitioner and client scale the Court or the Judge
may order the party to pay such costs. Rule 55(4) provides that
before making such an order the Court or the Judge shall give the
party concerned an opportunity to make representations as to whether
or not the order should be made.
The
applicants were not given the opportunity to make representations
whether or not the order of costs on a legal practitioner and client
scale should be made….,.
1….,.
2.
The applicants are to pay the fourth respondent's costs jointly and
severally the
one paying the others to be absolved.
