IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: A179/2025
In the matter between:
MY VOTE COUNTS NPC First Appellant
THE DEMOCRATIC ALLIANCE Second Appellant
And
THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA First Respondent
THE MINISTER OF JUSTICE AND CORRECTIONAL Second Respondent
SERVICES
THE MINISTER OF HOME AFFAIRS Third Respondent
THE ACTING SPEAKER OF THE NATIONAL ASSEMBLY Fourth Respondent
Coram: Ndita, J et Henney, J et Da Silva Salie, J
Heard on: 23 January 2026
Delivered on: 25 May 2026
Summary:
CONSTITUTIONAL LAW – Political Party Funding Act 6 of 2018 – Electoral Matters
Amendment Act 14 of 2024 – urgent constitutional litigation concerning alleged lacuna
in political party donation thresholds and disclosure limits shortly before 2024 national
elections – rule nisi granted by court a quo – interim operational relief refused – appeal
confined to costs orders – application of Biowatch principle – substantial success by
public-interest litigant – whether court a quo adopted unduly fragmented approach to
costs – whether adverse costs order against appellant justified despite absence of
frivolous or vexatious conduct – intervention application by Democratic Alliance
dismissed – whether non -party properly mulcted in costs associated with substantive
proceedings – doctrine of effectiveness considered in relation to practicality and
implementation of costs -in-the-cause order by taxing master – appeal upheld – costs
orders set aside and substituted.
ORDER
1. The appeal succeeds.
2. Paragraph 16(e) of the judgment and order of the court a quo is set aside and
substituted with the following:
“The prayer for the terms of the order set out above, to immediately
operate as an interim order, is dismissed with costs associated therewith
being costs in the cause of the rule nisi as set forth below.”
3. Paragraph 16(f) of the judgment and order of the court a quo is set aside and
substituted with the following:
“The first and third respondents are to pay the costs of the rule nisi jointly
and severally, to be taxed on the basis of Scale B.”
4. The respondents are ordered jointly and severally, the one paying the other to be
absolved, to pay the costs of appeal on Scale B.
JUDGMENT
DA SILVA SALIE J:
Introduction
[1] This appeal concerns the correctness of certain costs orders granted by Thulare
J on 27 May 2024 under case number 10607/24 arising from urgent constitutional
litigation instituted shortly before the national elections following the commencement of
the Electoral Matters Amendment Act 14 of 2024 (“the EMAA”). Leave to appeal to the
Full Court was subsequently granted by the court a quo on 14 April 2025. Although the
appeal is confined to costs, the issues cannot be viewed in isolation from the broader
constitutional and democratic setting within which the urgent proceedings arose. The
litigation concerned the statutory framework regulating political party funding, disclosure
obligations and donation thresholds, matters which lie at the heart of transparency,
accountability and informed electoral participation in a constitutional democracy.
[2] The central question before this Court is whether the costs orders granted by the
court a quo were judicially and properly exercised in circumstances where the first
appellant, My Vote Counts NPC (“MVC”), obtained substantial relief through the grant of
a rule nisi, and where the second appellant, the Democratic Alliance (“the DA”),
notwithstanding the dismissal of its intervention application, was nevertheless ordered
to contribute towards the costs associated with the rule nisi proceedings.
Background
[3] The litigation giving rise to this appeal emerged against the backdrop of
amendments to the Political Party Funding Act 6 of 2018 (“the PPFA”) introduced
through the EMAA, which came into operation on 8 May 2024, mere weeks before
national and provincial elections. Prior to the commencement of the EMAA, the PPFA
imposed an upper annual limit of R15 million on donations made to political parties by a
single donor and further required disclosure of donations exceeding R100 000. Those
thresholds existed by virtue of regulations promulgated under the PPFA.
[4] The amendments introduced by the EMAA materially altered the mechanism
through which those thresholds would henceforth operate. The amended provisions
empowered the President, after a resolution of the National Assembly, to determine the
upper limit and disclosure threshold by notice in the Gazette. MVC contended in the
urgent proceedings that while the old regulations had been repealed and substituted, no
new thresholds had yet been determined. According to MVC, this created an immediate
lacuna in the legislative framework governing political party funding.
Proceedings before the court a quo:
[5] MVC accordingly approached the urgent court contending that, absent judicial
intervention, there existed at least temporarily no effective upper limit on donations to
political parties and no enforceable disclosure threshold. MVC maintained that this state
of affairs undermined constitutional values of openness, accountability and
transparency. Furthermore, it impaired the ability of voters to exercise informed
electoral choice in the period immediately preceding the elections.
[6] It was against this background that MVC sought a rule nisi calling upon
interested parties to show cause on a return date why an order should not be made final
deeming the pre-existing thresholds of R15 million and R100 000 respectively to remain
operative pending either constitutional proceedings challenging the validity of the
amendments or the lawful determination of fresh thresholds in terms of the amended
statutory framework. MVC further sought that the rule nisi operate immediately as
interim relief pending the return date.
[7] The DA thereafter sought leave to intervene in the urgent proceedings. The DA
contended that, as a registered political party directly affected by the legislative regime
regulating political funding, it possessed a direct and substantial interest in the
proceedings. While disputing MVC’s contention that a lacuna existed, the DA
simultaneously sought alternative declaratory relief which would, in practical effect,
preserve the operation of the existing thresholds pending proper determination under
the amended statutory scheme.
Judgment a quo
[8] The judgment a quo considered the nature and purpose of a rule nisi. The court a
quo emphasised that the urgent proceedings before it did not constitute the final
adjudication of the constitutional issues raised by MVC and held that fuller ventilation of
the issues was appropriate on the return date, after notice to interested parties and
broader participation in the litigation process.
[9] In considering the DA’s intervention application, the court a quo observed that the
DA’s opposition appeared directed not merely at whether MVC had established a prima
facie case for interim intervention, but rather at the ultimate determination whether a
lacuna in fact existed. The court a quo remarked that the DA was “ahead of its time” in
seeking definitive findings which properly belonged to the return date court. The court a
quo further observed that the court on the return date might well be exposed to what it
described as an “expanded festival of ideas” as interested parties enriched the
jurisprudential debate concerning the interpretation and constitutional implications of the
amended statutory framework.
[10] The judgment a quo traversed developments within the National Assembly
following the commencement of the EMAA. In particular, the court a quo referred to the
National Assembly Order Paper of 9 May 2024, which expressly recorded that, absent
resolutions authorising the President to determine the relevant thresholds, “a gap in the
law” would arise concerning donation caps and disclosure obligations. The National
Assembly thereafter contemplated resolutions intended to enable the President to
determine fresh thresholds under the amended statutory framework. In my view, the
significance of those developments lies in the fact that Parliament itself initially
proceeded on the footing that uncertainty existed regarding the continued operation of
the pre -existing thresholds following the commencement of the EMAA. The evolving
position adopted within Parliament accordingly reinforced, rather than undermined,
MVC’s contention that the amendments had generated sufficient constitutional and
regulatory uncertainty to warrant urgent judicial scrutiny and fuller ventilation on the
return date.
[11] Importantly, the court a quo expressly accepted that MVC had established a
prima facie case warranting the grant of a rule nisi. In doing so, the court a quo
recognised that the amendments introduced by the EMAA had repealed and substituted
the prior regulatory framework governing the upper limit on donations and the disclosure
threshold. The court a quo further accepted that uncertainty existed regarding the
immediate operation and practical implementation of the amended provisions pending
determination of fresh thresholds by the President following a resolution of the National
Assembly. It was against this background that the court a quo concluded that the
issues raised by MVC warranted fuller ventilation on the return date after interested
parties had been afforded an opportunity to be heard.
[12] The court a quo accordingly granted the substantive rule nisi relief sought by
MVC. The non -joinder objections raised against MVC were rejected. The DA’s
intervention application was dismissed. However, the court a quo refused the prayer
that the rule nisi operate immediately as interim relief pending the return date. In doing
so, the court a quo drew a distinction between, on the one hand, the grant of a rule nisi
to preserve the dispute and permit fuller ventilation of the constitutional and regulatory
issues on the return date and, on the other, the granting of operative interim relief which
would effectively revive and enforce the pre -existing donation thresholds pending final
determination of the matter.
The costs orders
[13] The court a quo thereafter granted the costs orders which now form the subject
matter of this appeal. MVC was ordered to pay the costs associated with the refusal of
interim operational relief, while the first and third respondents together with the DA were
ordered to pay the costs associated with the rule nisi proceedings.
The appellants’ submissions
[14] On appeal, MVC submitted that the court a quo materially misdirected itself in
relation to costs. Counsel submitted that the litigation was quintessential constitutional
litigation directed at issues of democratic accountability, electoral transparency and
constitutional governance. MVC argued that the litigation fell squarely within the ambit
of the principle enunciated in Biowatch Trust v Registrar, Genetic Resources and
Others 2009 (6) SA 232 (CC) and that no basis existed to depart from the ordinary
constitutional protections applicable in such litigation.
[15] MVC further contended that the court a quo failed to appreciate properly that it
had achieved substantial success in the urgent proceedings. Although the prayer that
the rule nisi operate immediately was refused, MVC nevertheless secured the
substantive rule nisi relief which constituted the central objective of the urgent
application. Counsel submitted that the interim operational relief was ancillary to the
broader proceedings and intrinsically connected to the substantive relief ultimately
granted.
[16] The DA similarly submitted that once its intervention application had been
dismissed, it could not properly be mulcted in costs associated with substantive
proceedings in which it had not been admitted as a party. The DA argued that the order
compelling it to contribute to the costs associated with the rule nisi was inconsistent with
established principles governing costs orders against non-parties.
Legal principles applicable to costs in constitutional litigation
[17] It is trite that costs orders fall within the discretion of the court of first instance
and that appellate courts interfere only in exceptional circumstances, where such
discretion was not exercised judicially, where material misdirection occurred, or where
the result is plainly wrong. Importantly, constitutional litigation has generated important
refinements to ordinary costs principles, particularly where private litigants seek to
vindicate constitutional rights or challenge state conduct.
[18] The Constitutional Court in Biowatch recognised that adverse costs orders in
constitutional litigation may deter litigants from approaching courts to vindicate
constitutional rights and hold the state accountable. The Constitutional Court
accordingly held that successful private litigants in constitutional matters should
ordinarily recover their costs from the state, while unsuccessful private litigants ought
not ordinarily to be mulcted in costs unless their conduct is frivolous, vexatious or
manifestly inappropriate.
[19] The present litigation plainly bore the hallmarks of constitutional litigation
contemplated in Biowatch. MVC approached court in circumstances involving alleged
deficiencies in legislation regulating political funding transparency immediately before
national elections. The litigation implicated constitutional values of openness,
accountability and informed electoral participation. Indeed, the court a quo itself
repeatedly recognised the constitutional significance and public importance of the
issues raised.
[20] Significantly, there was never any finding by the court a quo that MVC’s litigation
was frivolous, abusive, reckless, vexatious or manifestly inappropriate. To the contrary,
the judgment demonstrates careful engagement with MVC’s concerns and acceptance
that the issues warranted judicial scrutiny and fuller ventilation upon the return date.
[21] Nor can the proceedings properly be characterised as proceedings in which MVC
was unsuccessful. MVC secured the principal relief sought in the urgent court, namely
the grant of the rule nisi. The procedural objections raised against MVC failed. The court
a quo expressly recognised that the issues raised by MVC warranted further
adjudication. While MVC did not succeed in obtaining immediate interim operation of the
rule nisi, that aspect of the relief remained ancillary to and dependent upon the
substantive rule nisi proceedings.
[22] The difficulty with the approach adopted by the court a quo is that it isolated the
refusal of interim operational relief from the broader complexion and overall outcome of
the litigation. Constitutional litigation of this nature must be assessed holistically. The
enquiry is not whether every procedural component of the litigation succeeded, but
whether the litigation (as a whole) constituted genuine constitutional litigation
responsibly pursued and substantially successful in substance.
[23] The court a quo’s own reasoning demonstrates that MVC succeeded in placing
before the court sufficiently weighty constitutional concerns to warrant urgent judicial
intervention through the mechanism of a rule nisi. The court a quo accepted that
uncertainty existed within the statutory framework. It accepted that the matter warranted
fuller ventilation. It rejected the principal procedural objections advanced against MVC.
Against that backdrop and having regard to those findings, an adverse costs order
against MVC cannot be sustained.
[24] Viewed holistically, the proceedings bore all the hallmarks of genuine
constitutional litigation responsibly pursued in the public interest. The substantial
success achieved by MVC through the grant of the rule nisi, coupled with the absence
of frivolousness, vexatiousness or abuse, rendered the resultant adverse costs order
difficult to reconcile with the Biowatch principle. In these circumstances, interference on
appeal with the discretion in respect of costs as exercised by the court a quo is justified.
The costs order granted against the DA
[25] The appeal brought by the DA ought similarly to succeed. Once the DA’s
intervention application was dismissed, the DA was not admitted as a substantive party
to the proceedings relating to the grant of the rule nisi. While the DA undoubtedly
participated actively in argument and advanced submissions opposing MVC’s
interpretation of the legislation, the dismissal of its intervention application carried
important procedural consequences.
[26] It is trite that a litigant who has been refused intervention cannot thereafter be
treated as a substantive party for purposes of costs associated with the principal
proceedings. The court a quo, however, ordered the DA jointly liable for the costs
associated with the rule nisi notwithstanding the dismissal of its intervention application.
[27] Properly considered, the inclusion of the DA in the rule nisi costs order
constituted a material misdirection. The DA’s participation occurred within the broader
setting of constitutional litigation concerning electoral transparency and political funding
regulation. The submissions advanced by the DA cannot be characterised as frivolous
or vexatious. The court a quo itself engaged extensively with those submissions.
However, once intervention was refused, the DA could not be mulcted in costs
associated with substantive proceedings to which it was not admitted. In those
circumstances, the subsequent costs order gives rise to difficulty.
The practical implementation of costs orders and the doctrine of effectiveness
[28] Counsel for MVC submitted that fairness would best be served either by directing
that costs associated with the refusal of interim operational relief become costs in the
cause or alternatively that each party bear its own costs associated with that aspect of
the proceedings. During argument, counsel further submitted that an order that each
party to pay its own costs, would, in practical terms, create unnecessary difficulties for
the taxing master in attempting to distinguish and allocate costs associa ted exclusively
with the refusal of the interim operational relief from those incurred in relation to the
broader rule nisi proceedings.
[29] Counsel submitted that the intertwined nature of the urgent proceedings
rendered such apportionment unduly burdensome when attempting to separate costs
incurred. It seems to me that there is merit in that submission. A costs order should,
insofar as possible, be framed in a manner capable of practical and effective
implementation. An order which is difficult to apply in taxation, or which leaves
uncertainty as to the allocation of recoverable costs, risks undermining the doctrine of
effectiveness. Neither the taxing master nor the parties should be left in a position
where the execution of the order becomes speculative or unduly burdensome in
separating costs incurred in relation to closely interwoven aspects of the same urgent
proceedings.
Conclusion
[30] It follows that fairness and the applicable constitutional principles are best served
by directing that the costs associated with the refusal of interim operational relief be
costs in the cause of the rule nisi . That approach appropriately recognises the
constitutional nature of the litigation, the substantial success achieved by MVC in
securing the rule nisi, and the absence of frivolousness or abuse.
[31] The costs associated with the rule nisi properly remain payable by the first and
third respondents in accordance with the order granted by the court a quo, save that the
DA ought not to have been included within that order.
Order
[32] In the result, I would make an order as follows:
[32.1] The appeal succeeds.
[32.2] Paragraph 16(e) of the judgment and order of the court a quo is set aside
and substituted with the following:
“The prayer for the terms of the order set out above, to immediately
operate as an interim order, is dismissed with costs associated therewith
being costs in the cause of the rule nisi as set forth below.”
[32.3] Paragraph 16(f) of the judgment and order of the court a quo is set aside
and substituted with the following:
“The first and third respondents are to pay the costs of the rule nisi jointly
and severally, to be taxed on the basis of Scale B.”
[32.4] The respondents are ordered jointly and severally, the one paying the
other to be absolved, to pay the costs of appeal on Scale B.
__________________________
G. DA SILVA SALIE
JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION
I agree
__________________________
R.C.A. HENNEY
JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION
I agree and it is so ordered.
__________________________
T. NDITA
JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION
Appearances
For First Appellant: Adv. M Dafel
Sandton
Instructed by: Webber Wentzel Sandton
For Second Appellant: Adv. P Olivier
Instructed by: Minde Schapiro & Smith Inc.
For First to Fourth Respondents: State Attorney Cape Town
Ref: Ms Karjiker