Recent Developments Regarding Costs Awards in Constitutional and Public-interest Litigation

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.