Tebeila Institute of Leadership, Education, Governance and Training (TILEGT) approached the Gauteng High Court (operating in this instance as the Limpopo Division), challenging a policy that was implemented by the Limpopo College of Nursing. The policy required prospective nursing students to have obtained a school-leaving certificate no more than three years prior to making an application to the institution. TILEGT averred that this policy irrationally and unfairly excluded many worthy prospective students who completed high school more than three years before they applied to the college.

In passing its judgment, the High Court agreed with the applicant in that there was inadequate justification proffered by the respondents in defence of the bar concerned. The Constitution expressly protects everyone’s right to equality. The exclusion of those who left high school more than three years before application went against the tenets of the equality clause of the Constitution. Therefore, as the discrimination effected by the bar was contrary to the Constitution, the court found it invalid.

The court however ordered each party to pay its own costs, citing the constitutional nature of the issues as the reason for the costs order. In Biowatch Trust v Registrar Genetic Resources and Others, the Constitutional Court ruled that any refusal to grant costs in a case where the vindication of constitutional rights was sought was incorrect. As stated above, the general rule in constitutional litigation between a private party and the state is that if the private party is successful, its costs must be paid by the state. In contrast, if the private party is unsuccessful, each party shall pay its own costs.

Concerning the reluctance of appellate courts to interfere with cost orders, Justice Ngcobo in Biowatch stated “It is clear that a court of first instance has a discretion to determine the costs order to be awarded in light of the particular circumstances of the case, and that a court of appeal will require good reason to interfere with the exercise of this discretion.” The Court considered that matters concerning costs are contentious primarily because appellate courts do not wish to interfere with the discretion of the lower court in relation to costs awards. However, when this reluctance results in the clear contravention of a judicial principle, which in turn ignores the plight of litigants, a clear problem presents itself.

Furthermore, in the Biowatch case, it was held that where the court departs from the general rule, clear and convincing reasons should be put forward for such departure. The exception to this rule is where the application is vexatious or frivolous. The reasons must be furnished so as to assist an appellate court, as well as inform future litigants of what to avoid when approaching similar cases. In the TILEGT case, the court stated that “the High Court did not elaborate its reasoning for depriving the applicant of its costs.

The rationale behind the general principle is that adverse costs have the effect of deterring parties from asserting their constitutional rights. Where a claim is meritorious, a party may decide against approaching the courts due to the fear of financial ruin. In addition, even if a party does pursue the issue successfully, the fear of being deprived of costs due to an inadvertent or technical lapse also features. In this case, the High Court ordered the applicant to pay its own costs and failed to provide reasons for so doing, thus doing exactly what the court in Biowatch was attempting to prevent.

The fact that the highest court of the land was approached to address a matter that concerned only costs when few appellate courts spare the time and resources to do so indicates the importance of the issue.

The importance of this case is that it lends greater understanding of section 34 of the Constitution, which provides that everyone has the right to have disputes resolved by the application of law in a fair public hearing. The decision creates greater access to the courts for ordinary individuals, as is envisaged by the Constitution. The decision also reiterates section 173 of the Constitution. The latter section provides for the inherent power to protect and regulate their own processes, for the Constitutional Court, the Supreme Court of Appeal and the High Courts. This is evidenced by the Constitutional Court’s discussion of the lower court’s discretion in awarding costs. 

By Rebecca Sibanda; Intern, Centre for Constitutional Rights

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