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2024
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[2024] ZAFSHC 96
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Afriforum NPC v Ngwathe Local Municipality and Others (A48/2023) [2024] ZAFSHC 96 (28 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no: A48/2023
In
the matter between:
AFRIFORUM
NPC
Appellant
and
NGWATHE
LOCAL MUNICIPALITY
First
Respondent
ACTING
MUNICIPAL MANAGER,
NGWATHE
LOCAL MUNICIPALITY
Second
Respondent
FEZILE
DABI DISTRICT MUNICIPALITY
Third
Respondent
MINISTER
OF WATER AND SANITATION
Fourth
Respondent
CORAM:
MBHELE, AJP
et
REINDERS, ADJP
et
CHESIWE, J
HEARD
ON:
13 OCTOBER
2023
DELIVERED
ON:
28 MARCH 2024
JUDGMENT
BY:
CHESIWE, J
[1]
The appellant is a non-profit company and
describes itself in the papers before us as a civil-rights
organisation with its main
purpose to promote and advocate for
democracy and constitutional rights with an emphasis on civil and
socio-economic rights. It
approached a single judge of this Division
on 30 September 2022 for relief on an urgent basis wherein it
attempted to assert certain
constitutional relief against the first
and second respondents and more in particular the Ngwathe Local
Municipality (the first
respondent).
[2]
The essence of the relief so sought, boiled down thereto that
Respondents be ordered to comply
with its constitutional duty in
supplying residents of the Ngwathe Municipality
[1]
(including also those of the third respondent - Fezile Dabi
Municipality
[2]
) with clean and
safe drinking water, as well as the right of access to sufficient
water.
[3]
[3]
The court hearing the matter removed the application from the roll
finding that there was no urgency
in the matter and ordered the
appellant to pay the wasted costs.
[4]
The Appellant lodged an application for leave to appeal the said
order. The same judge on
10 March 2023 granted leave to appeal
to the full bench of the Free State High Court only in respect of the
cost order. The appeal
was granted in terms of section 17(1)(a)(i),
dealing with reasonable prospects of success, as well as section
17(1)(a)(ii) of the
Superior Courts Act 19 of 2013 (the
Superior
Courts Act). In
passing judgment on the application for leave to
appeal, the learned judge, with reference
to
Biowatch
Trust v Registrar Genetic Resources and Others
[4]
(Biowatch) and
Lawyers
for Human Rights v Minister in the Presidency
[5]
noted that the court grants leave as it “cannot be ignorant of
the sentiments” expressed in Biowatch which ‘is
to the
effect that “a litigant who litigates
bona
fide
to
protect constitutional rights, ought not to be ordered to pay costs
even in the event of not being successful” (hereafter
the
Biowatch-principle).
[5]
The Appellant’s main contention in this appeal is that the
court
a quo
had erred in respect of granting a cost order
against it, as the Appellant approached the court on a matter that
involves a fundamental
human rights issue (a lack of clean water) and
had failed to apply the Biowatch-principle. The Appellant thus seeks
the following
relief:
1.
“
That
the appeal be upheld with costs including the costs of two
counsel and such costs to include the costs of the application
for
leave to appeal which includes costs of two counsel employed by the
Appellant/Applicant.
2.
That the order of the Court
a
quo
be varied to the effect that
each party is to pay their own wasted cost following the removal of
the matter from the roll.”
The
Respondents on the other hand, requested us to dismiss the appeal
with costs.
[6]
Before us it was not contended that the application itself did not
seek to protect the constitutional
rights of the residents of the
mentioned municipalities. The orders sought in the notice of motion
seek declaratory relief that
first and second respondents’
conduct in failing to provide safe and adequate pottable water to its
residents is unlawful,
inconsistent with the Constitution and
invalid. It further sought a declarator that third and fourth
respondent’s conduct
in failing to oversee, monitor, support
and strengthen first and second respondent’s responsibility to
provide safe and adequate
pottable water is inconsistent with the
Constitution. Various ancillary orders are also sought, however it
suffices to say that
the relief sought is based on, amongst others,
s27(1)(b) of the Constitution which guarantees access to clean and
safe water.
[7]
In removing the application from the roll, the court
a quo
found
that, although mindful of the fact that the then applicant acted on
behalf of the community of Parys, it was not entitled
to approach
court on an urgent basis wherefore the mentioned cost order followed.
[8]
In Biowatch
supra
the Constitutional Court found
that the trial court misdirected itself where it made an adverse cost
order against the appellant
in the absence of evidence that appellant
did not act in good faith and/or that the litigation was frivolous,
vexatious or that
it had conducted itself in some manner warranting
censure or disapproval of court. At paragraph [23] of the judgment it
was held:
“…
it
is the state that bears primary responsibility for ensuring that both
the law and state conduct are consistent with the constitution
–
if there should be a genuine, non-frivolous challenge to the
constitutionality of a law or state conduct, it is appropriate
that
the state should bear the costs if the challenge is good, but if it
is not, then the losing non-state litigant should be shielded
from
the cost consequences of failure.”
[6]
[9]
In
Masinga
& Others v Chief of the SA National Defence Force and others
[7]
the Supreme Court set aside a cost order by the full bench and it was
held that as the appellants sought to enforce fundamental
rights
under the Constitution, the court erred by not applying the Biowatch
principle.
[10]
The Constitutional Court in
Affordable
Medicines Trust and Others v Minister of Health and Another
,
[8]
held as follows:
“
The
award of costs is a matter which is within the discretion of the
Court considering the issue of costs… . One such consideration
is the general rule in constitutional litigation that an unsuccessful
litigant ought not to be ordered to pay cost. The rationale
for
this rule is that an award of costs might have a chilling effect on
litigants who might wish to vindicate their constitutional
rights.”
Moreover,
the Court overturned the order on costs made by the High Court and
ordered that each party should bear its own costs.
[11]
Counsel for the first and second respondents argued that the orders
of the court a quo are correct
and unassailable. It was submitted
that the procedure set out in Uniform Court Rule 6(12) is not simply
there for the taking and
that the Appellant did not set forth facts
and reasons rendering the matter urgent. We were referred to
Lawyers for Human Rights
supra in arguing that the
applicant’s reliance on urgency was manifestly inappropriate.
[12]
In
Lawyers
for Human Rights
supra
the Constitutional Court reiterated the Biowatch principle. The court
stated that the threat of hefty cost orders may “chill
constitutional assertiveness” and may discourage parties from
challenging constitutionally questionable practices.”
[9]
The court reiterated that the principle does not mean “risk
free constitutional litigation” and that costs might be
ordered
against an entity if the constitutional grounds of attack are
frivolous or vexatious or where the litigant has acted with
improper
motives or there are other circumstances that makes it in the
interest of justice to so order costs.
[10]
However, the Constitutional Court concluded that the high court
correctly found that the way the proceedings had been managed and
the
extreme belatedness by targeting an operation that was long gone and
done, as the basis for deviating from the Biowatch principle.
[13]
The respondents did not and could not argue that the appellants did
not attempt to raise a constitutional
issue in favour of the
residents of the Ngwathe Municipality. They did not and could not
convince us that the appellant was mala
fide, frivolous or vexatious
in bringing the application before the trial court. To the contrary,
the matter was instituted on
an urgent basis for the mere fact that
the issue of non-supply of clean water was on-going.
[14]
It is trite that an appeal court ought not to interfere with the
judicial discretion of the Court
a
quo
.
In
Ex
Parte
Neethling
and Others,
[11]
the court said:
“
Can
it be said in the present case that the Court a quo has exercised its
discretion capriciously or upon a wrong principle, that
it has not
brought its unbiased judgment to bear on the question or has not
acted for substantial reasons.”
[15]
Accepting that this discretion is not to be interfered with, however,
the Court
a quo
in my view did not pay sufficient account to
the issue that the matter was before it on an urgent basis, nor did
the Court
a quo
consider the
Biowatch
principle and
apply it to the facts. As the matter involves a constitutional
right, bearing in mind that clean water is a
basic need for all, it
ought in my respectful view have been done so.
[16]
It would be an injustice if litigants have to fear to approach courts
with matters relating to constitutional
litigation, that if
unsuccessful, they will be saddled with costs orders, specifically if
the government is the respondent in such
matters.
Litigants should not be discouraged from seeking to vindicate their
constitutional rights against government
institutions.
[12]
[17]
I therefore come to the conclusion that the issue that was raised was
to be considered in respect of the
cost order from the point of view
set out in Biowatch, namely where the appellant was unsuccessful each
party should bear its own
costs. It was on this very basis that the
trial court granted leave and the order for the reasons aforesaid,
should be rectified
to conform with this constitutional principle.
[18]
In respect of the appropriate cost order to be made in this appeal, I
am mindful thereof that one of the
purposes of a costs award to a
successful party is to indemnify it for the expenses to which it had
been put through having been
unjustly compelled to either initiate or
to defend litigation.
[13]
A cost order is not intended to be compensation for a risk to which
one has been exposed but a refund of expenses actually
incurred.
[19]
Based on the above, I am inclined to grant an order that each party
should pay their own costs. Even though
the Appellant is the
successful party, the Respondent cannot be faulted for having opposed
the application.
[20]
The following orders are issued:
20.1
The appeal succeeds and paragraph [2] of the Court Order granted on
30 September 2022 is set aside and replaced with
the following:
“
2.
Each party to pay their own costs.”
20.2
Each party to pay their own costs in the appeal.
CHESIWE,
J
I
concur
MBHELE,
AJP
I
concur
REINDERS,
ADJP
On
behalf of the Appellant:
Adv.
A T Lamey
Assisted
by Adv. P Eilers
Instructed
by:
Hurter
Spies Inc
c/o
Hendre Condradie Inc.
BLOEMFONTEIN
On
behalf of the First and
Second
Respondents:
.
L Nyangiwe
Instructed
by:
Raborifi
Inc Attorneys
c/o
Phatshoane Henny Inc
BLOEMFONTEIN
[1]
Towns resorting under Ngwathe include Parys, Vredefort, Heilbron,
Koppies and Edenville.
[2]
It includes, amongst others, Kroonstad, Sasolburg, Cornelia and
Deneysville.
[3]
See section 24 (a) and 27 (1) of the Constitution of the Republic of
South Africa 1996 – the Constitution.
[4]
2009 (6) SA 232
(CC).
[5]
2017
(1) SA 645 (CC).
[6]
See
also:
South
African Breweries v Minister of COGTA
[2021] 4 All SA 189
(WCC) at paras [13]- [17]
[7]
(2022)
43 ILJ 805 (SCA) at para [51].
[8]
(CCT27/04)
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) (11 March 2005).
[9]
At
para [16].
[10]
At
para [18].
[11]
1951 (4) SA 331
(A) at 335E (See also Florence v Government of the
Republic of South Africa
2014 (6) SA 456
(CC) para [26].
[12]
See Biowatch at para [12]- public interest litigation could be
jeopardised by severe financial penalty costs orders imposed on
organisations bringing the suit.
[13]
See
Payen
Components South Africa Ltd v Bovic Gaskets CC and others
(448/93)
[1995] ZASCA 57
;
1995 (4) SA 441
(AD); (AD);
[1995] 2 All SA
600
(A) (25 May 1995).