Politicians (especially those on the opposition benches) and constitutional lawyers (yours truly included) often natter on about the importance of respect for the Rule of Law. What is often lost sight of, is that the Rule of Law will remain an empty phrase unless ordinary people have access to an independent and impartial judiciary to claim their rights under the Constitution.
The sad fact is that most South Africans – as a practical matter – at present do not have access to our courts because they do not have the money to pay for lawyers to bring cases to court. In that sense, we really cannot talk about South Africa as a country where the Rule of Law is alive and well.
One of the few ways ordinary citizens can access courts, is through civil society organisations who would approach the court on their behalf in the public interest. But if such organisations are “punished” with cost orders and their donors stop giving them money to approach courts, one of the few ways for ordinary people to vindicate their rights will be destroyed and the Rule of Law will become even more of a joke than it already is in South Africa.
On Thursday the Constitutional Court dealt with just such a case when it handed down judgment in the Biowatch case. Writing for a unanimous court, Sachs J said that decisions on whether to order cost should not be determined by whether the parties are financially well-endowed or indigent or, as in the case of many NGOs, reliant on external funding. The primary consideration in constitutional litigation must be the way in which a costs order would hinder or promote the advancement of constitutional justice.
The Court has previously stated that there is a general rule in constitutional litigation that an unsuccessful litigant ought not to be ordered to pay costs to the state – regardless of whether the litigant has deep pockets or not.
This does not mean that a losing party will never have cost awarded against it in constitutional litigation cases. Such parties:
[S]hould not be immunised from appropriate sanctions if its conduct has been vexatious, frivolous, professionally unbecoming or in any other similar way abusive of the processes of the Court….It bears repeating that what matters is not the nature of the parties or the causes they advance but the character of the litigation and their conduct in pursuit of it. This means paying due regard to whether it has been undertaken to assert constitutional rights and whether there has been impropriety in the manner in which the litigation has been undertaken. Thus, a party seeking to protect its rights should not be treated unfavourably as a litigant simply because it is armed with a large litigation war-chest, or asserting commercial, property or privacy rights against poor people or the state.
Where an institution or individual has undertaken litigation to assert constitutional rights and where there has been no impropriety in the manner in which the litigation has been undertaken, cost should not be given against the party – even where the party loses the case.
This rule is important because it diminishes the chilling effect that adverse costs orders would have on parties seeking to assert constitutional rights. Constitutional litigation frequently goes through many courts and the costs involved can be high. The danger will always be that meritorious claims might not be proceeded with because of a fear that failure could lead to financially ruinous consequences.
It is also true that cases often have far reaching effect that goes well beyond the parties to the case as judgments can set precedent binding on the rest of society.
But lawyers should be careful. Merely labeling a case “constitutional” and shotgun style littering papers with references to the Constitution might not be sufficient to avoid a cost order. There must be a genuine attempt to raise a serious constitutional issue.
Where this general rule is departed from lower courts – who retain its discretion to order costs – must provide clear reasons for their decision.
I am not a practitioner but I have been told some horror stories about lower courts ordering cost against serious and bona fide litigants raising important constitutional issues. Hopefully this judgment will help to guide judges to avoid the “chilling effect” the Constitutional Court spoke of.
What the judgment did not deal with (for obvious reasons) is the far greater problem of important constitutional issues never getting to court, or never getting to the Constitutional Court (the right to education is a case in point) because those affected are usually poor and do not have access to clever lawyers who charge healthy fees.
Maybe the new Minister of Justice could think of ways to deal with this. One suggestion would be to earmark money (it can be “ring fenced”) for the Human Rights Commission to bring potentially precedent setting cases of poor and marginalised communities to court in an attempt to help poor communities to vindicate their rights.
Until this happens, it will be difficult to say with a straight face that South Africa is a country in which the Rule of Law is alive and well.
A good judgment.
Costs always have a chilling effect on those involved in public interest litigation. Ask arms deal activist Terry Crawford-Browne about it.
I have been involved in lots of pro bono work and it has always fascinated me how the most pious of public interest lawyers become these vicious, lying cheating people when they happen to act on the side of a large corporate involved.
In fact, in one instance in which I was involved, the corporate had had prepared such piss poor papers that they lost the case with costs on a technicality. Second time around they brought the same case on properly prepared papers – even though they didn’t have a really good case in the first place – and asked in their costs prayer for costs against attorney X in the event that attorney X represented the defendants AND advised them to oppose the matter.
Prof. Access to court is a huge problem in SA. If you look at employment, in particular discrimination cases, there is little hope when one’s rights have been violated by companies with huge war chests (litigation money). Canada, UK, US and Hong Kong all have public bodies that help employees in fighting discrimination cases. What does South Africa have?
Unless we give employees access to courts, discrimination that currently bedevils our country will remain the thorn in our democracy.
Joe Public,
Comparing SA to the UK, Canada et cetera et cetera is not really comparing apples with apples. South Africa is a poor country, with defunct state departments that can barely spend the current budget wisely (Free State ARV’s comes to mind), whereas first world countries has quite a bit more money and active non-ANC aligned NGO’s and not to mention working state departments.
But still agree with your point, access to courts in South Africa is “reserved” for the elite or JZ…
The question is who should be funding this?
Prof seems to think the state should, but as I have pointed out “defunct state departments that can barely spend the current budget wisely”.
Perhaps the government (pro-poor government remember) thinks of this as a bit of a nice to have.
I mean for each Mercedes ML65 AMG that the Gauteng Dept of Agriculture (there are farms in Gauteng?!) buys and looses we can fund how many ARV’s, cheaper court access, better education and health care… the list goes on and on??
Good idea – there’s massive potential.
But really not the HRC (that ANC / Malema lapdog). Just identify some NGO with credibility.
Won’t somebody please whisper in Kollapen’s ear that he should rather resign. For the sake of the institution?
Of course, the State, through instruments such as Legal Aid, should fund deserving cases (even if against the Government). It is only through such litigation that the rights and responsibilities under the Constitution will be clarified. The State should have a responsible budget – less Mercedes ML63 AMGs, and more to housing, health, education, access to justice, etc. In fact, the more of responsible budgeting, the less there is a need to go to Courts!
Norman, the Legal Aid Board does take cases were litigants are indegent or earn below R3500 a month. Whilst this is good it is not enough. Any litigant even if earning R50000 a month might be in difficult financial position when litigating against a company with almost limitless resources.
George, I am comparing public and privates aids to access to courts. Whether or not a country is rich or poor is immaterial.
Snowman, you are right, sometimes companies and those with money let litigation continue simply because they have resources, even if the case has no merit.
Both the public and private sector have much to do to improve access to courts for all. In the US, the private equity funds that invest in litigation. Apparently returns can be good. In SA there is one company that does this, but they have not been successful. Public bodies need to do more, the HRC and equality court exclude labour law which is where most litigation with parties with massivle different financial strenghts litigate.
Joe Public // Jun 8, 2009 at 10:15 am
The LAB’s means test might be in need for reconsideration – What does a Silk bill per day? Certainly not R3,500.00 divided by 30!
Wouldn’t it be better that we have a system where, at least all criminal matters are defended by soimeone from the LAB, where the latter is allowed to withdraw only once the accused person expressly terminates the LAB’s mandate and chooses to employ his/her own lawyer or to conduct his/her own defence? Furthermore, that all persons who want to take a constitutional not necessarily criminal) matter to court be supplied with LA at their request as long as the LAB can be satisfied that it is indeed a matter deserving of a court’s attention? If it an important enough matter to go to the High Court, SCA or the CC, the LAB is well positioned to brief advocates and SC’s to handle mattters on its behalf. Although private lawyers bill exorbitant fees, at least people will be provided with some legal representation subject top their choice to be or not to be represented. Even where people choose not to be represented, we need to move in a direction where judicial activism (Indian style) will provide people with proper access to courts where they are assisted by the presiding officers if necessary to formulate and present their repective cases. It is high time that we start thinking about moving away from the strict adversarial system that we have, especially in criminal matters.
Anon, I will not comment on criminal matter as my knowledge is limited. On civil matters, especially those that involve constitutional matters, it is worthwhile to have a system that allows access to courts.
In see three general routes to get to that. First, is changes in legislations and this can take forever to implement. Second, through the courts where is remedies (e.g. damages on lossing parties payable to a fund to fight for human rights) or court orders (declaring any legislative provision that limits access to court unconstitutional). Thirdly, private sector (contigency insurance; litigation investing) business paying litigation cost with an understanding that they share in the spoilts: for this to work our courts would have to be less conservative in awarding damages.
Prof, what are you thoughts on improving acccess to courts? Would you part-take in a forum or even case that seeks to open access to courts?
Joe Public
Of course the Legal Aid Board must prioritise. But if there are cases deserving legal aid, regardless of the financial position of the litigant, then legal aid must be provided.
Norman, the difficulty will always be on what basis you prioritise. It is not always possible to determine what the merits of a case are until one does the files for discovery which is way into the litigation process. So one would not know if the cases are deserving from the very onset.
Looking at income only is also not the best way, as discussed already.
But consider this. If there was a fund where lawyers and their clients (litigants) can jointly apply to for litigation funding. But applications would only be made, once the lawyer is clear of the merits of the case. The funding approved will pay, the costs already incurred and the legals costs going forward. Where the case has no merit, the application can be rejected and the lawyer can reclaim no more than x% of his fee from the cleint. This x% is a signal from the litigant of serious intent to pursue the matter and the (1-x%) is the lawyers signal that he/she has made his/her homework. Sometimes lawyers do terrible work because they will get their fee come what may.
Prof, what do you think?
Maybe an independent panel of legal experts could sift through applications and award money by applying a set amount of criteria: (i) how winnable is the case; (ii) will the case have a broader effect beyond the interests of the individual litigant and will it set a precedent; (iii) financial position of the litigant; (iv) will it promote constitutionalism and a rights culture.
Prof, please do not publish this comment. Please read section 5 of the document I emailed you. I believe it covers what you have just alluded to above in all material respects. I will call you as soon as you get back to your office.
As someone who worked at a Legal Aid Clinic – private as it is alligned to a University (as opposed to a Legal Aid Board – Government) for two full years I know what utter rubbish some people might want to take to court merely cause they know they will not be paying a cent. I was opening and closing files like there is no tomorrow in which the concerned client had a serious and real problem and met our means test but merely lost interest in due course devoid of giving s reasons why or of even doing us the courtesy of formally terminating our mandate.
My point is that, whatever legal aid is given to people, it should be deserving people indeed.
Sne – I agree, but how will one know whether a case is ‘deserving’, or whether the littigants are ‘deserving’ LA if there is no sifting mechanism (other than [or over-and-above] the means test). I more or less agree with Prof De Vos’ venture at // Jun 8, 2009 at 12:15 pm
Mouse,
I also agree with Prof. However, the constitution or make up of the deciding panel hs to be very independent of the LA concerned otherwise we may find out that the very people who were turning people away from LA may be the same ones or have an influence on the ones who must determine who meets the broader test propounded by Prof.
This of course is another issue which must be meticulously handled as it is susceptible to abuse of the tax-payers money or to the obstruction of the establisment of the LA Boards through the indescretions of the decision-makers as to who qualifies for LA and who does not.
Access to courts is a huge problem, particularly for those in the middle income bracket. Where the poor and indigent are able to apply for Legal Aid, those above the threshold have to pay for legal costs themselves.
A few years ago, my husband’s company tried to get rid of him through constructive dismissal. We consulted an attorney who is a family friend and he took on the case at a reduced fee. We did the majority of the prep work and prepared pages of documents proving constructive dismissal. (Fortunately, I had never trusted my husband’s boss and had advised my husband to ensure that he got everything in writing.)
We had one day of the hearing and the company settled. Despite the reduced legal fees, we still paid over half of the settlement amount to our attorney, who was NOT operating on a contingency basis. So, had we lost the case, we would still have had to find a huge sum of money.
I personally know very few people who can afford to litigate. There are people who cannot even afford to get divorced because of the legal costs!
We have LAB, Law clinics, amicus and pro bono. I believe the Natal Law Society aims at getting all practicing attorneys to do 24 hrs per year of pro bono work. If every attorney does that then it would be helpful – the larger firms have pro bono departments… Law clinics do their bit. The LAb could possibly be run more effectively but those people have a lot on their plate. It may be wise to make a flexible test – as suggested by De Vos. An unexplored avenue is standard training of paralegals so that they will be able to at least do the preliminary investigations and make the process faster. I now turn to the role of academics. Academics, even those who’ve never practiced, have some skill and could help identify whether or not a case may be successful. We should encourage academics to serve some time at Law Clinics associated to their respective schools.
Another thing is that the CCMA accepts documents in various forms and the reliability of electronic documents is becoming better by the year. The courts should now make some concesions to allow accessability to those in rural and far areas, where a paralegal may be able to access a fax machine or internet that is closer than the courts. The travelling costs etc may be reduced drastically and that should be the aim of both the Justice dept and those in practice.
Indeed without access to court, there is not rule of law…. I wonder why Judge Hlope and the NPA: Western Cape, refuse to place my HC-CPD Appeal A 696-04, on the roll for hearing, since June 2006!!!
Denied Access to have your Appeal Heard, without any reasons for the refusal of its being placed on the roll for hearing, because the issues therein are highly controversial….
FYI….
Official Legal and Political Complaint to Nobel Institute: Norwegian Nobel Committee (excerpt):
Dear Norwegian Nobel Committee,
Notice of Legal and Political Request to:
(I) Withdraw Nobel Peace Prize’s from Nelson Mandela, F.W. de Klerk, and Archbishop Desmond Tutu, for (a) Intellectual Dishonesty & Hypocrisy; (b) Moral, Political and Religious Prostitution; and (c) ‘TRC-RSA’ Fraud and Betrayal; and
(II) Accept Nobel Peace Prize Nominations for Dr. Albert Bartlett; Dr. Garret James Harden, and Dr. M. King Hubbert, for Intellectually Honest and Politically Honourable Ecologically Sustainable, Human Rights, Peace and Social Justice Advocacy.
Please Take Notice of Request for the Norwegian Nobel Committee’s:
1. Official Forwarding of: Final Honourable Notice of Legal and Political Delivery: Elimination of ‘TRC-RSA’ Nobel Peace Prize Recipients Plausible Deniability, to allegations that your Human Rights Advocacy is guilty of (i) Intellectual Dishonesty and Hypocrisy; (ii) Moral, Political and Religious Prostitution; and (iii) ‘TRC-RSA’ Fraud and Betrayal, to ‘TRC-RSA’ Peace Prize Recipients: (I) Former South African Presidents: (i) Nelson Mandela and (ii) F.W. de Klerk; and (II) Archbishop Desmond Tutu………….