Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
7 June 2009

Without access to court there is no Rule of Law

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.

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