Costs in pursuing Constitutional rights: Who is liable?

Limpopo Legal Solutions brought an urgent application against the Vhembe District Municipality in the High Court in which they sought a final interdict directing the Municipality to immediately dispatch a team of contractors to fix a burst sewage pipeline in Section B, Malamulele. The Municipality opposed the application and contended that they became aware of the problem, for the very first time, when the Limpopo Legal Solutions served their urgent application on them. Furthermore, they contended that Limpopo Legal Solutions did not meet the requirements for an interdict because they had alternative remedies, such as reporting the leak to their ward councillor or to the local authority. In light of this, the High Court dismissed the application and it awarded punitive costs on an attorney and client scale against Limpopo Legal Solutions. It concluded that the punitive costs order was warranted because Limpopo Legal Solutions had failed to make out a case for relief and because the application should have not been brought in the first place.

The main application on the merits

On appeal, the legal question before the court was whether Limpopo Legal Solutions was entitled to come to court without notice to the Municipality. The High Court held that they should not have come to court entirely without notice to the Municipality and the Constitutional Court confirmed that the High Court’s decision on the merits was correct.

Argument on costs

In the written submissions filed in the Constitutional Court, Limpopo Legal Solutions argued that the High Court had not applied the Biowatch principle, which provided that in constitutional litigation against the state, a private litigant is spared costs unless the application is frivolous or vexatious. According to Limpopo Legal Solutions, the application concerned health and environmental rights thus it was neither frivolous nor vexatious.

On the other hand, the Municipality submitted that Limpopo Legal Solutions acted improperly by not first bringing the problem to their attention. Litigation brought with no prior warning amounts to an abuse of process that justifies the punitive cost order imposed.

The decision in the Constitutional Court

When a matter does not involve constitutional litigation between a private party and the state, the general rule is that, subject to exceptions, the successful party should have costs. If a matter involves constitutional litigation between a private party and the state, the general rule is that the private party who is substantially successful should have its costs paid by the state but no costs order should be made if the state wins. The general rule of costs in constitutional litigation between a private party and the state is, subject to exceptions, if an application is frivolous or vexatious or in any way manifestly inappropriate then the private party should not expect to be protected from an adverse costs award. 

The Constitutional Court concluded that the application was not frivolous nor was it vexatious and that the High Court had misdirected itself by imposing a punitive cost order against the Limpopo Legal Solutions. The High Court should have applied the Biowatch principle and made no costs order. The costs order against Limpopo Legal Solutions was set aside and each party was ordered to pay its own costs in the High Court. Limpopo Legal Solutions achieved substantial success in overturning the High Court’s costs award therefore they were awarded their costs in the Constitutional Court.

The importance of the Biowatch principle in enforcing Constitutional rights 

The rules on costs have a critical effect on access to justice, which is a fundamental right in the Constitution. The fear of having to pay the costs of the other side may deter people from bringing matters to court and enforcing their rights. Constitutional litigation is important in a democracy and when a private party is successful, it serves a good purpose in society in the sense that the organisations or private parties who institute litigation secure a benefit for the rest of the public who had no part in the litigation.

This judgment is a significant victory for litigants seeking to enforce their constitutional rights against the state. Although this judgment reaffirms the principles enunciated in the Biowatch case, litigants should always be mindful that any litigation against the state that is found to be frivolous and vexatious may be met with an adverse order of costs. Furthermore, it is also unlikely that the courts will apply the Biowatch principle in matters involving the enforcement of constitutional rights which are purely commercial in nature.