By Luyolo Ntikinca and Sihlulelwe Reward Nxumalo

The Constitution makes provision for a Bill of Rights. The Bill of Rights is the cornerstone of democracy in South Africa (SA). It enshrines the right of all people in SA and affirms the democratic values of human dignity, equality and freedom. The Constitution further provides that the state must respect, protect, promote and fulfil the rights mentioned in the Bill of Rights.

The enforcement of constitutionally protected rights is often reduced by the costs of litigation. This article seeks to address how the Constitutional Court (CC) is making access to justice readily available without the anxiety of having to stomach expensive legal fees.

In the case of Harrielall v University of KwaZulu-Natal 2018 (1) BCLR 12 (CC),  the CC considered the Biowatch principle as was formulated in the case of Trustees, Biowatch Trust v Registrar: Genetic Resources, and Others 2005 (4) SA 111 (T).

Background of the Harrielall case

Niekara Harrielall, a student at the University of KwaZulu-Natal, lodged an application for leave to appeal against the order of the Supreme Court of Appeal (SCA), on the basis that the applicant’s appeal was dismissed with costs. In her application she cited the university as a respondent.

In 2015 the applicant applied for admission at the University to study for an MBChB degree, as she aspires to be a medical doctor. However, her application was unsuccessful. To improve her prospects for admission, the following year, the applicant registered for the degree of Bachelor of Medical Science (Anatomy) in 2015. When applications for the 2016 intake were open, she applied again under the policy described as ‘mature students’, which is defined in these terms:

‘Mature students will comprise 20% (40 students) of the class.

Mature students are categorised as follows:

a) Candidates who have completed their Matriculation/Grade 12 examination and exceeding the minimum standards for entry into the MBChB programme as defined above; and have done a year or more of a degree course at a recognised university in South Africa; and achieved outstanding results (open). Twenty five percent (10 students) will be from this open competitive category.’

Ms Harrielall’s application was based on the above-mentioned provision, which applies to candidates who have completed matric and have also done a year or more of a degree course at a recognised university in SA. In addition to her matric qualification, the applicant had done a one year course in the Bachelor of Medical Science (Anatomy) at the same university. When the selection in that category was made the applicant was again unsuccessful. The applicant in the matter logged an application to review the decision, the KwaZulu-Natal Division of the High Court dismissed her application. She then appealed the matter at the SCA and her appeal was dismissed with costs.

Issue of legal costs

The CC held that, the court was satisfied that the application had to fail as it had no prospects of success, the issue of litigation costs had to be considered. The CC held that the High Court and the SCA were not entitled to depart from the Biowatch principle, which requires that an unsuccessful party in legal proceedings against the state be spared from paying the state’s costs in constitutional matters.

The principle was laid down in the Biowatch case, in this case the CC avowed that this rule applies to every constitutional matter involving organs of state.

The purpose of the Biowatch principle is to shield unsuccessful litigants from the obligation of paying costs to the state. In litigation between the government and a private party seeking to assert a constitutional right, the case of Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) established the principle that ordinarily, if the government loses, it should pay the costs of the other side, and if the government wins, each party should bear its own costs.

This rule is, however, subject to exceptions. These exceptions where formulated in the Affordable Medicines case where Ngcobo J said that: ‘There may be circumstances that justify departure from this rule such as where the litigation is frivolous or vexatious. There may be conduct on the part of the litigant that deserves disapproval by the Court which may influence the Court to order an unsuccessful litigant to pay costs.’

The question of whether parties should bear their own costs or not was discussed in Ferguson and Others v Rhodes University 2018 (1) BCLR 1 (CC), where the court dealt with the enforcement of rights as enshrined in the Bill of Rights.

In this case the High Court ordered that the applicants should bear the cost of the proceedings, the SCA upheld the decision of the High court. The CC expressed discontent in that both the High Court and the SCA failed to exercise their judicial discretion in the constitutional context in light of the application of the Biowatch principle.

The Ferguson case dealt with the right to freedom of expression, the right to assembly, picket and present petitions.

Background of the Ferguson case

In April 2016, a student chapter called, Chapter 2.12 Movement comprising predominantly of Rhodes University students, embarked on a campaign to address the issue of rape culture and gender-based violence at Rhodes University. The High Court expressed the view that the issue was ‘deeply emotional, relevant and challenging.’

In pursuit of this campaign, it led to some instances of unlawful conduct, which included the kidnapping and assault of two male students who were suspected of rape or sexual assault.

Rhodes University approached the High Court and obtained an urgent interim interdict. The court accepted oral evidence in support of the relief sought and granted the same. The relief granted was extremely wide in its scope, as well as in its designation of whom the relief covered and was extended to.

The first respondent was cited as the ‘Student Representative Council of Rhodes University’; the second respondent was cited as the ‘students of Rhodes University engaging in unlawful activities on the applicant’s campus’; while the third respondent was cited as ‘those persons engaging in or associating themselves with unlawful activities on the applicants’ campus’.

In these proceedings, the relief sought is pursued only by the applicants. They were cited as the fourth, fifth, and sixth respondents, respectively, in the High Court. The CC referred to them as the ‘applicants’.

The applicants applied for leave to appeal against the High Court’s order. This application was dismissed by the High Court and the applicants were ordered to pay the costs of the respondent.

The applicants subsequently applied for leave to appeal to the SCA. Their application was dismissed with costs.

It was the submission of the applicants that the matter before the court raises significant constitutional issues on the right to freedom of expression and protest as provided for in ss 16 and 17 of the Constitution.

The CC followed the Biowatch principle, and recited the ‘chilling effects’ of court orders that could have on parties seeking to assert their constitutional rights even where unsuccessful.

The assertion of constitutional rights is inextricably linked to the transformative process the Constitution contemplates. The CC failed to reason why the Biowatch principle could not be followed in this case. In support of this deviation the SCA applied the criterion of fairness in making its determination on costs, even though the Biowatch principle was clearly applicable.

The applicants were proclaiming their constitutional rights of freedom of expression and association in challenging the interim interdict, which was ultimately found to be overly wide.

Unambiguously the CC articulated that these ‘proceedings activated the principle enunciated in Biowatch with regard to costs. Thus, despite the High Court granting a cost order that is consistent with Biowatch, to the extent that it premised its order on the consideration of fairness alone, this constitutes an error on its part even though the result arrived at was the same.’

In conclusion, this rule does not apply in cases of private individuals. Bona fide constitutional litigation between individuals and organs of state should be encouraged without the fear of ‘chilly’ legal costs where the individuals lose the case against an organ of state.

In the very same tone, legal representatives should also take the initiative in reducing their legal fees, where possible. This would also encourage the spirit of ‘access to justice’.

Luyolo Ntikinca LLB (WSH) is a professional assistant at the State Attorney in Port Elizabeth and Sihlulelwe Reward Nxumalo is an LLB student at NMU.

This article was first published in De Rebus in 2018 (April) DR 20.