THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 778/2024
In the matter between:
AFRIFORUM NPC Appellant
and
NGWATHE LOCAL MUNICIPALITY First Respondent
ACTING MUNICIPAL MANAGER,
NGWATHE LOCAL MUNICIPALITY Second Respondent
FEIZILE DABI DISTRICT MUNICIPALITY Third Respondent
MINISTER OF WATER AND SANITATION Fourth Respondent
Neutral citation: AfriForum NPC v Ngwathe Local Municipality and Others
(778/24) [2026] ZASCA 28 (13 March 2026)
Coram: MEYER, MOLEFE and BAARTMAN JJA and MABESELE and
NORMAN AJJA
Heard: 9 March 2026
Delivered: 13 March 2026
Summary: Costs – Award – General Principles – costs follow the result – if the
government loses in litigation between the government and a private party seeking to
assert a constitutional right it should pay the costs of the private party – Whether a full
court misdirected itself in not applying these general principles in its award of costs.
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ORDER
On appeal from: Free State Division of the High C ourt, Bloemfontein (Mbhele AJP,
Reinders ADJP and Chesiwe J, sitting as court of appeal):
1. The appeal is upheld, and the first and second respondents are to pay the
appellant’s costs of the appeal.
2. Paragraph 2 of the order of the full court is set aside and replaced with the following:
‘The first and second respondents are to pay the appellant’s costs of the appeal.’
JUDGMENT
Meyer JA ( Molefe and Baartman JJA a nd Mabesele and Norman AJJA
concurring):
[1] This appeal concerns two principles applicable to awards of costs: the general
rule ‘that costs follow the result and that the unsuccessful party must pay the costs of
the successful party’ (the result principle);1 and the Biowatch2 principle that-
‘[i]n litigation between the government and a private party seeking to asser t a constitutional
right, Affordable Medicines established the principle that ordinarily, if the government loses, it
should pay the costs of the other side, and if the government wins, each party should bear its
own costs.’3
[2] The appeal, with specia l leave of this Court, is against the costs award made
by the Full Court of the Free State Division of the High Court, Bloemfontein (Chesiwe
J with Mbhele AJP and Reinders ADJP concurring), made on 28 March 2024 (the full
1 NU Africa Duty Free Shops (Pty) Ltd v Minister of Finance and Others [2023] ZACC 31; 2023 (12)
BCLR 1419 (CC); 2024 (1) SA 567 (CC) para 149.
2 Biowatch Trust v Registrar, Genetic Resources and Others [2009] ZACC 14; 2009 (10) BCLR 1014
(CC) 2009 (6) SA 232 (CC) para 22.
3 The Biowatch principle was first established in Affordable Medicine Trust and others v Minister of
Health and Others [2005] ZACC 3; 2006 (3) SA 247 (CC) ; 2005 (6) BCLR 529 (CC) and was given
further content in Biowatch. Pertinent to this appeal is also the following passage in Independent
Candidate Association SA NPC v President of the Republic of South Africa and Others [2023] ZACC
41; 2024 (3) BCLR 321 (CC); 2024 (2) SA 104 (CC) para 160:
‘… the general rule for an award of costs in constitutional litigation between a private party and the state
is that, if the private party is successful, then it should have its costs paid by the state‘.
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court), in an appeal against the costs award made by a single judge of that division,
PJ Loubser J (the court of first instance), in an opposed application in which the
appellant, AfriForum NPC (AfriForum),4 sought to assert the constitutional rights of the
residents of the first respondent, the Ngwathe Local Municipality (the local
municipality), to, inter alia, safe drinking water, 5 and to an environment that is not
harmful to their health and well-being.6 The second, third, and fourth respondents are
the Acting Municipal Manager of the local municipality (the municipal manager), the
Feizile Dabi District Municipality (the district municipality), and the Minister of Water
and Sanitation (the minister), respectively.
[3] The residents of the local munic ipality were plagued with a supply of unsafe
bad smelling drinking water provided to them by the local municipality, which caused
many residents to become ill. AfriForum, therefore, engaged the services of various
accredited laboratories to obtain test sam ples of tap water in the town of Parys and
surrounding areas, and to test the quality of those test samples. The test results
showed unacceptably high levels of bacteria coliforms and E.coli bacteria present in
the water, in contravention of various statut ory and regulatory requirements,
specifically those relating to the quality of potable water prescribed by the South
African National Standards (SANS) 241:2015. The test results showed that the water
was in an unsafe state and not fit for human consumption.
[4] AfriForum’s attempts at resolving the water crisis with the local and district
municipalities (the municipalities), failed. In the result, it initiated an urgent application
on behalf of the residents of the local municipality in the high court agai nst the
municipalities and the minister on 22 September 2022. It sought an order aimed at
compelling the municipalities-
compelling the municipalities-
4 AfriForum is a non-profit company acting as a civil organisation with its main purpose to promote and
advocate for democracy, constitutional rights and human rights with an emphasis on socio -economic
rights.
5 Section 27(1)(b) of the Constitution provides that:
‘Everyone has the right to have access to-
(b) sufficient food and water;’
6 Section 24 of the Constitution provides thus:
‘Everyone has the right-
(a) to an environment that is not harmful to their health or well-being.’
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(a) ‘to comply with their constitutional and statutory obligations to provide a consistent, safe
and sustainable supply of potable water, which complies with all the requisite legislative
standards and which is fit for human consumption’;
and the district municipality and the minister-
(b) ‘by way of a structural supervisory interdict, to carry out their constitutionally and statutory
mandated duties to oversee the Municipalities’ failures in service delivery proactively and to
support them to ensure a co nsistent supply of potable water that is safe for human
consumption. Applicant also seeks to compel [the district municipality] and the Minister to
support and assist [the local municipality] in these endeavours, in line with the principles of
cooperative governance and to intervene accordingly’.
[5] The local municipality opposed the application, primarily, on the basis that the
report relied upon by AfriForum was not authenticated and that the water from the
Parys Water Works Site was tested by the Univ ersity of the Free State and shown to
be compliant with the SANS 241 standard.
[6] The application was set down for hearing on the urgent roll on 30 September
2022, PJ Loubser J, the presiding judge, formed the view that the matter was not
urgent. He, accordingly, made the following order:
‘1. The matter is removed from the roll for want of urgency.
2. The applicant shall pay the wasted costs occasioned by the removal.’
AfriForum launched an application for leave to appeal against the punitive costs award
made in the urgent application. On 10 March 2023, PJ Lou bser J made the following
order:
‘1. The applicant is granted leave to appeal to the Full Court of the Free State High Court
against the order of costs only.
2. Costs of the application for leave are costs in the appeal.’
[7] On 13 October 2023, the appeal was heard by the full court. On 28 March 2024,
the full court delivered its judgment, and made the following order:
the full court delivered its judgment, and made the following order:
‘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 its own costs.”
2. Each party to pay their own costs in the appeal.’
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[8] The full co urt, in considering the issue of costs, held that the court of first
instance ought to have applied the Biowatch principle, particularly given that the matter
before it implicated the residents’ constitutional right of access to clean and safe water.
The full court underscored the importance of applying that principle in litigation of this
nature, where constitutional rights are directly implicated. The full c ourt was in
agreement with AfriForum that the appropriate costs order was one aligned with the
Biowatch principle and, further, that as the successful party, AfriForum was ordinarily
entitled to its costs. Despite this finding, the full court ultimately departed from that
position and ordered that each party bear its own costs.
[9] The full court reasoned thus:
‘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 a nd
could not convince us that the appellant was mal a 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 ongoing.’
However, the full court then concluded:
‘Even though the Appellant is the successful party, the Respondent cannot be faulted for
having opposed the application.’
[10] In Independent Communications Authority of South Africa and Others v Op en
Heaven Community Radio and Others,7 this Court held that:
‘An award of costs is a matter wholly within the discretion of the trial court. An appeal court
will not generally interfere with a court of first instance’s decision on costs. However, in
Sublime Technologies (Pty) Ltd v Jonker and Another this Court held that an appeal court will
only interfere with the discretionary orders granted by a lower court where it is shown that the
lower court had not exercised its discretion judicially, or that it had been influenced by wrong
principles or a misdirection on the facts, or that it had reached a decision which in the result
could not reasonably have been made by a court properly directing itself to all the relevant
facts and principles.’8
7 Independent Communications Authority of South Africa and Others v Open Heaven Community Radio
and Others [2025] ZASCA 117; [2025] 4 All SA 321 (SCA); 2026 (1) SA 70 (SCA).
8 Ibid para 28.
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[11] The crisp question in this appeal, therefore, is whether the full cou rt exercised
its discretion judicially and properly when it deviated from the result and Biowatch
principles, and made the costs award for each party to pay their own costs, or whether
it misdirected itself in doing so. AfriForum argues that the full court did not exercise its
discretion on costs judicially. It seeks this Court to interfere with the full court’s exercise
of discretion and substitute its costs award with one awarding AfriForum its costs in
respect of the successful appeal in the full court. The local municipality did not file
heads of argument before this Court on the issue of costs. Its answering affidavit is
confined to the merits of the dispute relating to the water issue within its area of
jurisdiction. Before the full court, the municipality sought the dismissal of AfriForum’s
appeal with costs. The absence of heads of argument before this Court is unexplained,
and there is likewise no indication that the respondents intended to abide the decision
of this Court.
[12] The default position – that the successful party is awarded its costs – does not
operate in an inflexible manner, binding courts to apply it in every case. Courts retain
a discretion to depart from the result principle where the circumstances so warrant.
Any such dep arture must, however, be exercised judicially and be supported by
compelling and proper justification. In Ferreira v Levin NO and Others; Vryenhoek and
Others v Powell NO and Others,9 the Constitutional Court held:
‘One of the general rules is that, alth ough an award of costs is in the discretion of the Court,
successful parties should usually be awarded their costs and that this rule should be departed
from only where good grounds for doing so exist.’
[13] There are numerous examples of the circumstanc es in which a court may
deprive a successful litigant of its costs. For example, vexatious litigants, although
deprive a successful litigant of its costs. For example, vexatious litigants, although
successful, may be deprived of their costs if the court considers that the litigation was
‘so wholly unnecessary as to appear to have been merely vexatious, or for the sole
purpose of creating costs’.10 In appropriate circumstances the conduct of a litigant may
be viewed to be vexatious within the ‘extended meaning’ where it results in
9 Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others [1995] ZACC 13;
1996 (1) SA 984 (CC); 1996 (1) BCLR 1 para 155.
10 Lyons v Weir 1916 CPD 226 at 229.
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‘unnecessary trouble and expense which the other side ought not to bear’.11 Cases in
which a successful party is ordered to pay the costs of the unsuccessful party are
usually in which the court disapproves of the conduct of the successful party.12
[14] The Biowatch principle is also not cast in stone. Where appropriate, courts have
the discretion to deviate from it. The Constitutional Court, in refusing to apply the
Biowatch principle in S S v V V S,13 said this:
‘While it was submitted on behalf of the applicant that the Court should not make any order as
to costs in the event of the application being dismissed, the principle in Biowatch should not
apply. This is precisely the kind of case that should invoke the exception to Biowatch for
litigation that is “frivolous or vexatious, or in any other way manifestly inappropriate”. In light
of the totality of circumstances at the two hearings before this Court, and the applicant’s
wanton conduct, my view is that the litigation was “manifes tly inappropriate”. Given the
applicant’s conduct compromising K’s best interests and this Court’s integrity, his continued
application can be viewed as “so unreasonable or out of line that it constitutes an abuse of
process”. As this Court aptly stated in Limpopo Legal Solutions, “although Biowatch changed
the costs landscape for constitutional litigants, it gives no free pass to cost-free, ill-considered,
irresponsible litigation” and applicants “seeking to vindicate constitutional rights must respect
court processes”.’
[15] In Free State Department of Social Development and Others ,14 the following
was said in relation to the exceptions to the Biowatch principle:
‘The operation of the Biowatch principle is restricted to genuine constitutional challenges. It is
not available to a litigant who is guilty of unacceptable behaviour in relation to how litigation is
conducted. Such litigant may be ordered to pay costs. Over and above the rule being limited
conducted. Such litigant may be ordered to pay costs. Over and above the rule being limited
to constitutional challenges, it also excludes vexatious and frivolous litigation.’
[16] The urgent application was instituted by AfriForum to vindicate a fundamental
constitutional right of the residents of the local municipality, namely the right of access
to clean, safe, and adequate drinking water. A reading of the record of the proceedings
11 City Council of Johannesburg v Television and Electrical Distribution (Pty) Ltd and Another [1996]
ZASCA 97; [1997] 1 All SA 455 (A); 1977 (1) SA 157 (A) at 177D-F.
12 See, for example: Mahomed v Nagdee 1952 (1) SA 410 (A) at 420-421; Hamza v Bailen 1949 (1) SA
993 (C) at 1003.
13 S S v V V S [2018] ZACC 5; 2018 (6) BCLR 671 (CC).
14 Mbuyisa v HOD: Free State Department of Social Development and Others (3243/2024) [2025]
ZAFSHC 79 (13 March 2025) para 4.
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in the court of first instance supports the full court’s finding that AfriForum was not
mala fide in bringing the urgent application, nor was it frivolous or vexatious. To that I
should add that nothing in the record s hows that the litigation was manifestly
inappropriate, ill -considered, or irresponsible, or that there was any misconduct or
impropriety on the part of AfriForum or the residents of the local municipality, and there
is also no suggestion to that effect.
[17] The only reason why the full court ordered each party to pay their own costs of
the appeal, was because of its view that the local municipality could not be faulted for
having opposed the application. However, the application of the Biowatch principle
turns on the nature of the dispute, the bona fides of the litigant, and the way the
litigation is conducted. It does not turn on whether the state could or could not be
faulted for having opposed the proceedings.
[18] The full court’s reasoning does not afford any lawful or principled basis upon
which to justify a departure from the result principle or the Biowatch principle. The full
court misdirected itself on the application of both principles and their exceptions. It
reached a decision on the costs of the appeal which in the result could not reasonably
have been made by a court properly directing itself to all the relevant facts and
principles. The full court, therefore, failed to exercise its discretion judicially.
Accordingly, this Court is at large to interfere with the impugned costs award and to
correct the misdirection.15
[19] AfriForum requests that the costs of two counsel be included in the costs award,
on appeal before the high court and in this Court. However, this matter has no factual
or legal complexities. It would, in my view, be unfair and unjust to saddle the
municipalities with the costs of two counsel. It is AfriForum which elected to litigate on
such a luxurious scale irrespective thereof that this is a matter where the services of
such a luxurious scale irrespective thereof that this is a matter where the services of
one counsel would have been adequate.
[20] In the result, the following order is made:
15 Compare Tebeila Institute of Leadership, Education, Governance and Training v Limpopo College of
Nursing and Another [2015] ZACC 4; 2015 (4) BCLR 396 (CC) para 13.
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1. The appeal is upheld, and the first and second respondents are to pay the
appellant’s costs of the appeal.
2. Paragraph 2 of the order of the full court is set aside and replaced with the following:
‘The first and second respondents are to pay the appellant’s costs of the appeal.’
________________________
P A MEYER
JUDGE OF APPEAL
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Appearances
For appellants: A T Lamey with P Eilers
Instructed by: Hurter Spies Inc., Pretoria
JH Conradie Inc., Bloemfontein
For first and second respondents: No appearance.