The court noted that the award of costs in a constitutional matter raises a constitutional issue. However, it was unable to overturn the High Court’s finding that the urgent application was manifestly inappropriate. LHR provided no basis for the court to conclude that the High Court had exercised its discretion unjudicially in making the adverse costs award. The Court noted that the High Court controls its own process and does so with a measure of flexibility. Even where the litigant seeks to assert constitutional rights, the court must always consider the character of the litigation and the litigant’s conduct in pursuit of it. The court further noted that the adverse costs order was not triggered by the merits of LHR’s application.
The court cautioned against the abuse of the Biowatch principle. It does not mean risk-free constitutional litigation. The court concluded that a worthy cause cannot immunise a litigant from a judicially considered, discretionarily imposed adverse costs order.
Adverse cost awards; Constitutional law; interpretation of the Biowatch principle
The applicants, Lawyers for Human Rights (LHR) were dealt an adverse costs award by the High Court and sought to appeal against it. This was after they represented most of those arrested during attacks on non-South African nationals in 2015.
This was an application for leave to appeal from the High Court concerning an adverse costs award in constitutional litigation. The judgment dealt with the application of the Biowatch principle (Biowatch Trust v Registrar, Genetic Resources) which provides that even when parties litigating against state parties lose a case, they are generally spared an adverse costs award, provided the case was of genuine constitutional import.
The application was dismissed – but without a costs order in the Constitutional Court
LHR provided no basis for the court to conclude that the High Court had exercised its discretion unjudicially in making the adverse costs award