Oranje Vrystaatse Vereniging vir Staatsondersteunde Skole and Another v Premier van die Provinsie Vrystaat and Others (CCT12/96) [1998] ZACC 4; 1998 (3) SA 692; 1998 (6) BCLR 653 (12 May 1998)

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[1998] ZACC 4
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Oranje Vrystaatse Vereniging vir Staatsondersteunde Skole and Another v Premier van die Provinsie Vrystaat and Others (CCT12/96) [1998] ZACC 4; 1998 (3) SA 692; 1998 (6) BCLR 653 (12 May 1998)

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CONSTITUTIONAL COURT OF
SOUTH AFRICA
                                                                                                                       Â
CaseÂ
CCT 12/96
DIE ORANJE
VRYSTAATSE VERENIGING
VIR
STAATSONDERSTEUNDE SKOLE
                          First
Applicant
DIMAKATSO ANNA
NKIANE                                  Second Applicant
versus
DIE
PREMIER VAN DIE PROVINSIE VRYSTAAT          Â
                     First Respondent
DIE LID VAN DIE
UITVOERENDE RAAD VIR                            Â
ONDERWYS EN KULTUUR,
PROVINSIE VRYSTAAT            Second Respondent
DIE LID VAN DIE
UITVOERENDE RAAD VIR
FINANSIES EN UITGAWES,
PROVINSIE VRYSTAAT            Third Respondent
Decided on:
12
May 1998
JUDGMENT
GOLDSTONE J
:
[1]
            During
October 1995 an application was heard by Lombard J in the Orange Free State
Provincial Division of
the Supreme Court (as it was then called), in which the
applicants sought to have a decision of the Orange Free State Provincial

Administration set aside.  The decision had the effect of terminating the
bursaries and transport subsidies for pupils attending
what were known as
“state-aided schools”.  In addition to an order declaring the decision to be in
violation of the interim
Constitution,
1
the applicants also
sought consequential relief in the form of orders requiring
the respondents to reinstate and pay the bursaries and subsidies with
effect
from the beginning of the 1995 school year, and interdicting them from again
terminating the bursaries or subsidies without
having conducted the
negotiations provided for in section 247 of the interim Constitution and the
White Paper on Education which
had been issued by the National Government on 15
March 1995.
2
[2]
            Lombard
J granted the declaratory order sought by the applicants and ordered the
respondents to pay the applicants’
costs.  The applicants were aggrieved at the
refusal by the learned Judge to grant the consequential relief sought by them.Â
They applied to this Court for leave to appeal against that decision.
[3]
            The
President of this Court issued directions for the hearing of the application
for leave to appeal and
set it down for hearing on 11 March 1997.  However, on
23 December 1996 the applicants purported to withdraw their application.Â
They
did not tender to pay the respondents' costs.  It would appear that there then
followed negotiations between the parties
in an endeavour to reach agreement on
costs.  They were unsuccessful and in a letter dated 12 August 1997 the State
Attorney informed
the Registrar of this Court that the respondents wished to
have the question of costs determined by the Court.  The respondents
now seek
an order compelling the applicants
to pay the costs incurred by them in consequence of the
proceedings in this Court relating to the application for leave to appeal.Â

After some further delay, in response to a direction issued by the President,
written submissions on the costs issue were filed
by the parties.  According to
the written submission from the applicants resisting an order for costs they
explain their withdrawal
of the appeal by reference to the provisions of the
South African Schools Act, 84 of 1996
, in terms of which “state-aided schools”
were abolished with effect from 1 January 1997.  The relief they sought had
become
moot.
[4]
            In my
opinion we should not make the order sought by the respondents.  The
applicants’ complaints were
clearly not frivolous or vexatious and there can be
no suggestion that they acted from improper motives.  The withdrawal of the

bursaries and subsidies was of moment to the applicants and to other parents
whose children were attending “state-aided schools”.Â
As this Court has made
plain on a number of occasions, litigants should not be discouraged from
enforcing their constitutional
rights by having to run the risk of having to
pay the costs of their governmental adversaries.
3
  There is no suggestion that  the
applicants withdrew their application for leave to appeal for a reason other
than that stated
by them.
[5]
            I
would emphasise that I am not suggesting that the applicants were entitled to
the
relief granted to them by Lombard J.  The merits of their
case have not been argued before or considered by this Court.  And it
would
obviously not be in the interests of justice for argument to be heard on issues
which have now become moot and are no longer
of any consequence to the parties
or indeed anyone else.  The costs of such a proceeding would greatly exceed
those which the
parties have incurred pursuant to the application for leave to
appeal.
[6]
            The
following order is made:
With regard to the application for
leave to appeal there is no order as to costs.
 Chaskalson P, Langa DP,
Ackermann J, Kriegler J, Madala J, Mokgoro J, O’Regan J,  Sachs J and Yacoob J
concur in the judgment
of Goldstone J.
1
           The Constitution of the Republic
of South Africa, Act 200 of 1993.
2
           Published in Government Gazette
16313.
3
           See
Ex Parte Gauteng
Provincial Legislature: In Re Dispute Concerning the Constitutionality of
Certain             Provisions
of the Gauteng School Education Bill of 1995
[1996] ZACC 4
; ,
1996 (3) SA 165
(CC);
1996 (4) BCLR 537
(CC) at para 36;
Motsepe v
Commissioner for Inland Revenue
,
[1997] ZACC 3
;
1997 (2) SA 898
(CC);
1997 (6) BCLR 692
(CC) at para 30.