Constitutional litigation and cost orders against the State

An award of costs in litigation serves to reimburse the successful party. In the case of Trustees for the time being of the Biowatch Trust v Registrar, Genetic Sources and others CCT 80/08 [2009] ZACC14 the Constitutional Court (“CC”) accepted what is known as the Biowatch principle with regard to cost orders and litigation against the State.

In this case Biowatch, an environmental watchdog organisation, sought to obtain certain information from governmental bodies, on the basis of their statutory obligation to disclose the information. Biowatch succeeded in the High Court, but no cost order was made in its favour and it was ordered to pay the costs of a third party who had an interest in the matter. After a series of appeals the case ended up in the CC.

The court considered four factors concerning cost orders in constitutional litigation:

1. The status of the parties and the issues.
2. The general approach in litigation between private parties and the State.
3. The general approach where the State is sued for a failure to fulfil a constitutional or statutory obligation.
4. The role of appellate courts in appeals against cost orders.

The court also looked at the role that public advocacy groups play in promoting constitutional justice and considered the ruinous effect that adverse cost orders would have on these bodies and their capacity to advance constitutional justice.

The court referred to the decision in the earlier case of Affordable Medicines Trust and Others v Minister of Health and Another [2005] ZACC 3 2006 (3) SA 247 (CC), where it was held that the ability to finance the constitutional litigation should not be a relevant factor. In the Affordable Medicines Trust case the court accepted as a general rule that a party who litigates against the State to assert a constitutional right should not be ordered to pay costs, even if that party is unsuccessful. The court based this approach on the following considerations:

1. Adverse cost orders would have a chilling effect on parties who seek to assert a constitutional right.
2. Constitutional litigation affects the rights of any person in a similar situation.
3. It is the State’s responsibility to ensure that the law and the conduct of the State accord with the Constitution.

The CC found that the High Court in the Biowatch case was incorrect in deviating from the general rule with regard to the cost orders. The CC found in favour of Biowatch and held that the State must pay the costs for the High Court and the CC processes and the cost order against Biowatch in favour of the third party was set aside.

This affirmation by the CC of the general rule on costs in constitutional cases against the State enhances access to the courts and supports the advancement of constitutional justice under the South African Constitution.