Synopsis:
Appeal against costs order — general costs rule in constitutional
litigation — avoid deterring parties from pursuing constitutional
claims — exceptional circumstances warranting intervention —
costs order set aside.
Application for leave to appeal against an order of the High Court, Limpopo Local Division, Polokwane. That Court ordered each party to pay its own costs even though the applicant was successful in constitutional proceedings against government.
In Biowatch, the Constitutional Court held that the general rule in constitutional litigation is that a private litigant in proceedings against organs of state, if successful, should recover costs. If the party is unsuccessful, it should not be ordered to pay costs unless the application was frivolous. Here the applicant succeeded in a constitutional challenge to the admissions policy of a government nursing college. The High Court held that a costs order in favour of the applicant was not warranted as the matter raised constitutional issues.
The Court held that the applicant should have been awarded costs. It reaffirmed Biowatch. If departing from the general rule, a court must give clear reasons for doing so.
The Court granted leave to appeal and upheld the appeal.
Judgment: The Court.
