In the tapestry of South Africa’s constitutional framework, the right of access to the courts is a fundamental pillar of our democracy. This right is enshrined in section 34 of the Constitution and affords everyone within the Republic the right to a fair and public hearing before a court to resolve disputes, assert rights and seek redress for constitutional violations. But the cost of litigation excludes a significant portion of society from the realisation of this fundamental right.
These costs encompass not only the expenses incurred during litigation but, also the cost order awarded by the courts at the end of a legal dispute, ordinarily in favour of the successful litigant. This article focuses on the latter, cost order awards. My analysis will be on the Biowatch principle, which the Constitutional Court introduced as a crucial departure from the traditional cost awards, and was intended to eliminate any deterrent effects linked to adverse cost awards.
The principle rests on the idea that public interest litigants, regardless of their financial resources, should not bear the burden of costs when they unsuccessfully challenge the state in court. Imagine the Biowatch principle as the sling that was wielded by David to defeat Goliath.
But the widespread inconsistency in the application and the apparent reluctance to embrace the Biowatch principle by our judges in the lower courts, particularly those in the high court and the supreme court of appeal, is concerning.
This pattern not only undermines the doctrine of stare decisis, which holds that a decisions of a superior court is binding on lower courts, and thus ensures predictability of legal outcomes, but it also perpetuates a climate of uncertainty for litigants, resulting in an uneven legal playing field by deterring financially constrained members of the public from litigating on the public interest.
The foundational principles governing cost orders in South African law can be traced back to the Appellate Division judgment in 1913 of Fripp v Gibbon & Co, which established the so-called traditional principle of costs by setting out two core principles guiding the determination of costs.
The first provides that a court possesses the discretion in order costs, which is not unfettered. The judicial officer must consider both precedent and the relevant factors of the specific case when exercising this discretion. The second principle states that costs should follow the successful litigant — this principle is subject to the former.
In Ferreira v Levin NO and Others 1996, the constitutional court found that the traditional principle in public interest cases should not be applied rigidly, because this could result in public interest groups or private litigants being deterred from enforcing and protecting constitutional rights. Similar sentiments were expressed by the same court in Motsepe v Commissioner for Inland Revenue 1997, which held that where a litigant raises a constitutional matter caution in awarding costs against such litigants should be exercised, because the consequences flowing from that has a chilling effect on parties who wish to assert constitutional rights. Moreover, relaxing the traditional approach to costs is necessary to prevent protracted litigation by the state against private individuals, which it can do as it has a bottomless legal purse.
The Biowatch Trust sought leave from the constitutional court to appeal two unfavourable cost decisions from the lower courts where a constitutional matter was raised. Justice Albie Sachs outlined three reasons for departing from the traditional principle in legal disputes between private parties and the state.
“In the first place it diminishes the chilling effect that adverse costs orders would have on parties seeking to assert constitutional rights … 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 is the state that bears primary responsibility for ensuring that both the law and state conduct are consistent with the Constitution.”
Sachs also highlighted the crucial contributions of public interest litigators in raising important constitutional issues.
He argued that when a court is deliberating on a suitable cost order the focus should not be on the nature of the parties involved, whether they are “pursuing commercial interests and have deep pockets. Nor should they be looked upon with favour because they are fighting for the poor and lack funds themselves. What matters is whether rich or poor, advantaged or disadvantaged, they are asserting rights protected by the Constitution.”
Since the constitutional court established the Biowatch principle, there has been a noticeable hesitance in its acceptance in both the high court and the supreme court of appeal (SCA).
The first example is the case of Hotz v University of Cape Town 2018. It involved an appeal against a high court decision that interdicted the applicants from participating in a student protest at the University of Cape Town, as well as the adverse cost order imposed on them, which was subsequently affirmed by the SCA.
The applicants argued that the Biowatch principle should have been applied by the high court in determining costs, given that constitutional rights were raised, particularly the right to higher education, freedom of expression, assembly, picketing, and petitioning, as well as the right to freedom of association. In its ruling, the constitutional court noted that a university is a public institution that the state uses to fulfil its constitutional mandate to provide further education and training. The court correctly reversed the cost order decision because the application of the applicants raised constitutional issues in the high court and their claim were “clearly not frivolous or vexatious”, which are the only exceptions for not applying the Biowatch principle.
Another constitutional matter reached the constitutional court, where the Biowatch principle was overlooked. Niekara Harrielall sought to appeal an SCA decision that dismissed her review application with costs (Harrielall v University of KwaZulu-Natal 2018). The constitutional issue raised concerned a review of an administrative decision taken by the University of KwaZulu-Natal that resulted in her being denied admission into the university’s medical programme.
It is trite that reviewing an administrative action by a public institution constitutes a constitutional matter, as it affects the right to administrative justice provided under section 33 of the Constitution. When the university rejected Harrielall’s application it exercised public power, and this triggered the application of the Biowatch principle to cost, regardless of the outcome of her review application, provided that the litigation was not spurious. The failure to adhere to this principle where warranted exacerbates the chilling effect of costs and demonstrates defiance of established legal authority in the constitutional court by lower courts. In response to the non-application of the Biowatch principle in this case reiterated its importance in our constitutional democracy and characterised the reluctance of lower courts to embrace it as “unfortunate”.
One of the consequences of the inconsistent application of the Biowatch principle is causing public interest groups or private individuals to resort to alternative ways of asserting their rights, including self-help, instead of relying on the judicial system. An example of self-help is the week-long protest action over service delivery issues that took place in Parys, Free State, last year. Frustrated by the continual neglect of their complaints, residents of Ngwathe local municipality burnt the house of the mayor’s mother. While this incident did not involve any issue that was before a court of law, it underscores the risks associated with self-help and the consequences when marginalised people bypass legal channels to address grievances.
The trend of failing to employ the Biowatch principle continued in Limpopo Legal Solutions and Others v Vhembe District Municipality and Others 2017. Here the high court ordered adverse costs against a nonprofit organisation asserting constitutional rights. What sets this case apart is that the cost ordered was punitive — on an attorney and client scale.
In reversing the outrageous cost award, the constitutional court held that: “The court should ordinarily be very loath to grant a punitive costs order in a case like this. This is constitutional litigation and parties should never be forced to be too careful to assert their constitutional rights through a court process, for fear of a costs order … Punitive costs should therefore never be an easy option, regard being had to the Biowatch principles.
The logical conclusion created from the cited examples is that to enforce the Biowatch principle requires litigants to pursue legal action up to the constitutional court and incur additional costs simply because the lower courts are reluctant to adhere to this established legal authority on costs.
Addressing the apparent knowledge gaps is vital, and a resolution could involve mandating all courts to conduct a preliminary assessment at the beginning of legal proceedings initiated by private litigants against the state to determine whether the matter raises a constitutional issue. If so, the presiding judicial officer would be obligated to inform all parties of the applicability of the Biowatch principle, irrespective of whether the private litigant explicitly argued its relevance in their papers.
Implementing such a rule would ensure the Biowatch principle’s constant consideration and application where it is warranted, thereby safeguarding the constitutional rights of the private litigant(s) and maintaining fairness throughout the court process.
It would also be beneficial to consider introducing an interim costs award as a subsidiary relief mechanism within the framework of the Biowatch principle, similar to the Canadian approach. This kind of advance order is not foreign to our legal system; a similar interim relief is available to divorce litigants under Rule 43 of the Uniform Rules. Such interim costs have the potential to facilitate wider access to justice for the public. They would also ensure that the state complies with its constitutional duties.
Sello Ivan Phahle is a legal adviser and analyst.
