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[2010] ZACC 7
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Chonco and Others v President of the Republic of South Africa (CCT94/09) [2010] ZACC 7; 2010 (6) BCLR 511 (CC) (16 March 2010)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case
CCT 94/09
[2010]
ZACC 7
In
the matter between:
MQABUKENI
CHONCO AND 383 OTHERS Applicants
and
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA Respondent
Heard
on : 4 February 2010
Decided
on : 16 March 2010
JUDGMENT
KHAMPEPE
J:
Introduction
[1] This
matter is a sequel to
Minister for Justice and Constitutional
Development v Chonco and Others
1
(
Chonco 1
) which was decided by this Court on 30
September 2009. The facts are essentially the same and appear from
the judgment in
Chonco 1
.
2
[2] The present is an application for
direct access as contemplated in section 167(4)(e)
3
of the Constitution. The applicants, Mr Chonco and 383 other
pardon applicants, seek an order declaring that the President
had
unreasonably delayed in considering and deciding their applications
for presidential pardon under section 84(2)(j)
4
of the Constitution which had been filed with the Department of
Justice and Constitutional Development in 2003. The applicants
also
seek an order directing the President to decide their applications
within one month from the date of the order.
[3] On the
day of the hearing, counsel for the President handed in a
supplementary affidavit in which the President stated that
he had
considered all 384 applications. He had decided to reject 230 out
of the 384 applications. No decision had been made
in respect of
the 146 applicants who had elected to apply for pardon under the
special dispensation process. This was because
on 29 April 2009,
the High Court granted an order interdicting the President from
granting pardons under section 84(2)(j) pending
the finalisation of
the main application foreshadowed in Part B of the Notice of
Motion.
5
The application for leave to appeal against the High Court order
was heard in this Court in November 2009 in the matter of
Albutt
v Centre for the Study of Violence and Reconciliation and Others
(
Albutt
).
6
Since no ruling had been made in respect of the application, the
President considered it prudent to defer his decision in regard
to
the 146 applications until judgment had been given by this Court.
The remaining eight applications where the applicants did
not apply
for pardon in terms of the special dispensation process, but whose
circumstances were closely linked to the 146 applications,
were also
not finally decided pending the judgment of this Court in
Albutt
.
In the light of this, the President submitted that it would not be
just and equitable for this Court to grant the applicants
the relief
they sought as the matter had been rendered academic by the
processing of their applications.
[4] Counsel for the applicants
informed the Court that he would no longer persist in seeking relief
as it had been substantially
obtained in the light of the
President’s decision articulated in the supplementary
affidavit. The parties, however, indicated
that they wished to
argue the issue of costs. Therefore this judgment deals only with
the question of costs.
[5] The applicants originally sought
costs on an attorney-and-own-client scale. During argument, counsel
for the applicants indicated
that the applicants were no longer
seeking costs on a punitive scale but still sought costs against the
President on the ordinary
scale. Counsel for the President however
contended that the facts of the case justified an order that the
parties should bear
their own costs.
[6] It is trite that costs are a matter within the discretion of the
Court
7
and that the discretion must be exercised judicially, having regard
to all the relevant considerations depending on the circumstances
of
each case. Such considerations as discussed by this Court include:
the conduct of the parties; the conduct of the legal
representatives; whether a party has had only technical success; the
nature of the litigants; the nature of the proceedings;
8
the nature and complexity of the issues
9
and whether litigation is considered vexatious or frivolous.
10
A further consideration in constitutional litigation must be the
way in which a costs order will hinder or advance constitutional
justice.
11
Ultimately, the Court has to decide what is a just and equitable
order to grant in the circumstances of this case.
12
[7] The inquiry into what would be a
just and equitable order of costs in this case includes a
determination of the reasonableness
of the conduct of the parties in
relation to the proceedings. It is therefore useful to analyse the
conduct of the parties in
the present proceedings. I do so in two
parts.
Was it reasonable to institute
litigation at the time and to persist after the President’s
answering affidavit?
[8] In urging this Court to grant them
costs, the applicants submitted that they were entitled to approach
this Court for the
relief sought and that they would have succeeded
in their application for direct access. The applicants filed their
application
on 28 October 2009, less than a month after the
judgment in
Chonco 1
was handed down. The applicants
conceded during argument that the facts and cause of action in this
matter and in
Chonco 1
were “basically the same”.
The only difference, they submitted, is that it is now the
President who stands as respondent,
and that there has been an
additional period of delay in processing the pardons.
[9] They further conceded that during
that period, they made no attempt to communicate with the President
in order to inquire,
given the decision in
Chonco 1
,
when he would be in a position to complete the process. The
applicants however argued that in the light of the history of the
litigation and the unresponsiveness on the part of the government to
their numerous inquiries, they did not see any benefit in
writing to
the President to determine when the applications would be
considered. They therefore contended that they had taken
a
“reasonable course” in the circumstances and that one
could not speculate as to whether the President would have
been
inclined to process the applications following the decision in
Chonco 1
. They stated that the impending litigation was
the only real “bargaining chip” available to them in
order to exert
pressure on the President to move forward with the
applications.
[10] The past conduct of the
Presidency gives some credence to this argument. Throughout the
history of this matter, it would
seem that the Presidency has taken
action only in response to the litigation. The President also
conceded that prior to the
lodging of his affidavit, he had not
communicated with the applicants or given them an indication of when
he would be in a position
to make a decision regarding the
applications. Neither the papers nor the judgment in
Chonco 1
shed any light on the status of the applications.
[11] Counsel contended that it was
unreasonable for the applicants to institute the present proceedings
without affording the
President an opportunity to indicate how he
intended to respond to the judgment. In this regard he emphasised
the fact that
the founding papers were signed only nine days after
the decision in
Chonco 1
. When it was suggested that
the President should have, shortly after the decision in
Chonco 1
,
informed the applicants how he intended to proceed with their
applications, counsel pointed out that the President had to obtain
legal advice on the outcome of the decision in
Chonco 1
,
an exercise that was time consuming.
[12] On a consideration of the facts,
the applicants, in my view, acted unreasonably in engaging this
Court without making any
inquiries from the President on how he
intended to attend to the processing of the applications. This is
so because first, the
President was not a party, strictly speaking,
to the previous litigation and needed sufficient time to be briefed
on the matter
including the legal implications of the judgment as it
related to the further processing of the applications. Of course,
this
does not suggest that he was not aware of that litigation but
justifies the need to have sought sufficient time to obtain legal
advice considering that this Court had recently clarified the nature
and scope of the President’s powers, functions and
duties in
relation to applications for pardon in terms of section 84(2)(j).
Second, the decision in
Chonco 1
was delivered only on
30 September 2009. The fact that the applicants’
founding affidavit was deposed to on
9 October 2009, merely
nine days after the Court’s decision, and that the application
was lodged on 28 October
2009, suggest that the applicants had
little intention of investigating viable alternatives for the
settlement of the dispute
but were minded to rush to this Court.
[13] I am mindful that the applicants,
in the context of this case, would wish to vindicate their rights
with greater urgency
and use these proceedings as a “bargaining
chip”. This Court would not wish to deprive the litigants of
a necessary
weapon to use in order to vindicate their rights. But
in the circumstances it is difficult not to conclude that the
institution
of these proceedings was hasty. At the very least, it
behoved the applicants to put the Presidency on terms before
resorting
to litigation. A simple letter to the President putting
him on terms or making inquiries in regard to the processing of
their
applications for pardon, given the decision in
Chonco 1
,
would have sufficed. The facts of this case simply illustrate that
had the applicants written such a letter to the President,
he would
probably have given the same response that is contained in his
answering papers. The conduct of the applicants in the
circumstances was therefore plainly precipitate.
[14] As mentioned previously, counsel
for the President argued that after the decision in
Chonco 1
,
the President needed time to be briefed and to obtain legal advice
on how best to deal with the 384 applications. There is
some
substance in this argument, particularly bearing in mind that at the
time of the institution of these proceedings, there
was a pending
interdict which prevented the President from finalising the
applications for pardon. As already stated, this Court
was then
seized with the application for leave to appeal against the order
granted by the High Court and had not ruled on the
matter.
13
The applicants must have been aware of this development when
instituting these proceedings. It is therefore not inconceivable
that the President would have required consultation with regard to
how to further process the applications in the light of the
interim
interdict granted in
Albutt
and the appeal proceedings
directed at the interdict before this Court. It was therefore not
reasonable to proceed without putting
the President on terms.
[15] Nor was it reasonable for the
applicants to proceed after the President lodged his answering
affidavit on 13 December
2009 with an undertaking that he was
considering the applications and that he intended to finalise them
by the end of January
2010. Notwithstanding that undertaking, the
applicants contended that having regard to the protracted
non-responsiveness on
the part of the President to their inquiries,
they were justified in waiting for a firm assurance from the
President that the
applications had in fact been processed. They
submitted that the firm assurance arrived only in the form of the
supplementary
affidavit filed on the morning of the hearing and that
it would be unreasonable to have expected the applicants to abandon
the
litigation before that point.
[16] Counsel for the President argued
that after the President had made an undertaking under oath, the
applicants should not have
pursued the matter. Even in the written
submissions, the President submitted that it was evident that he was
doing exactly what
the applicants sought in the notice of motion and
that there was, therefore, no real issue on the merits.
[17] In my view, the Presidency’s
previous tardiness cannot justify the applicants’ stance.
They ought to have exercised
caution and put the President on terms
with regard to the further processing of their applications after
Chonco 1
before litigating. In the circumstances, the
proper administration of justice demands that such precaution be
taken by litigants
before embarking upon litigation in this Court.
The applicants’ stance may well have been justified if it
would have been
reasonable to expect the Office of the Presidency to
continue with its dilatory conduct notwithstanding the judgment of
this
Court in
Chonco 1
. There was no evidence that the
President had in the past failed to comply with orders granted by
this Court or undertakings
so given. Therefore, they had no reason
to believe that the President would not take heed of this Court’s
finding in
Chonco 1
. This fortifies my view that the
applicants’ conduct was precipitate when they chose litigation
as their first and last
resort. Counsel for the President submitted
that at the very least, after the President’s answering
affidavit was filed,
the applicants could have sought a postponement
sine die
in order to assess if the President would follow
through on his undertaking, a view I am inclined to accept.
The relevance of
the costs order in Chonco 1
[18] The applicants’ counsel
further conceded that despite being unsuccessful in
Chonco 1
,
a costs order was granted against the government in the applicants’
favour. This order was granted to express this Court’s
displeasure at the conduct of the Presidency and the Minister in
having unreasonably delayed the processing of the 384 applications
for pardon. In
Chonco 1
, Langa CJ intrepidly found that
the conduct of the Presidency and the Minister was unacceptable:
“
Six years have passed
since Mr Chonco posted his application for pardon to the Minister.
Yet, despite public undertakings made
by the President and the
Minister to expedite a response to the applications, the respondents
have waited in vain. This is unacceptable.
The Constitution
requires that all constitutional obligations, wherever they lie,
‘must be performed diligently and without
delay.’”
14
(Footnote omitted.)
[19] From the above it is plain that,
although the costs order was made against the government, the reason
for the order was the
dilatory conduct of the President. Notably,
the costs order the applicants obtained in
Chonco 1
not
only indemnified them from the expense of that litigation, it also
constituted a public censure against those responsible
for the long
delay in processing their applications.
[20] That same delay is the subject
matter of the present application. In my view it would not be just
and equitable to grant
further costs in favour of the applicants in
respect of the same delay.
Conclusion
[21] Having regard to all these
considerations, I am of the view that it would not be just and
equitable for this Court to award
the applicants costs.
Costs in
relation to the application for condonation
[22] Although the applicants have
tendered costs in respect of the application for condonation for the
late preparation of the
record, the President has declined them. In
the result no costs order will be made in that regard.
Order
[23] The following order is made:
(a) No order is made on
the application.
(b) There is no order as
to costs.
Ngcobo CJ,
Moseneke DCJ, Cameron J, Froneman J, Jafta J,
Mogoeng J, Nkabinde J, Skweyiya J,
Van der
Westhuizen J and Yacoob J concur in the judgment of
Khampepe J.
Counsel
for the Applicants:
Counsel for the Respondent:
Advocate TJ Kruger
SC and Advocate C Van Jaarsveld instructed by JH van der Merwe
Inc.
Advocate MTK
Moerane SC and Advocate NH Maenetje instructed by the State
Attorney, Pretoria.
1
Minister for Justice and Constitutional Development v Chonco and
Others
[2009] ZACC 25
, CCT 42/09, 30 September 2009, as yet
unreported.
2
Id at paras 2-6. For the background to the litigation in that
matter see paras 7-13.
3
Section 167(4)(e) provides:
“
Only the Constitutional Court may—
. . .
(e) decide that Parliament or the President has failed
to fulfil a constitutional obligation”.
4
The relevant part of section 84 provides:
“
(1) The President has the powers entrusted by
the Constitution and legislation, including those necessary to
perform the functions
of Head of State and head of the national
executive.
(2) The President is responsible for—
. . .
(j) pardoning or reprieving offenders and remitting any
fines, penalties or forfeitures”.
5
Centre for the Study of Violence and Reconciliation and Others v
President of the Republic of South Africa and Others
Case No
15320/09 North Gauteng High Court, Pretoria, 29 April 2009,
unreported.
6
The application in
Albutt v Centre for the Study of Violence and
Reconciliation and Others
[2010] ZACC 4
, CCT 54/09, 23 February
2010, as yet unreported, was filed on 2 June 2009 and the matter was
heard on 10 November 2009.
The matter related to the
issue of victim participation in the special dispensation process
set up to deal with pardons for
politically motivated crimes.
Judgment was handed down on 23 February 2010.
Ngcobo
CJ found that the exercise of the power to grant pardon must be
rationally related to the purpose sought to be achieved
by it.
Given the history of our country, victim participation in accordance
with the principles of the Truth and Reconciliation
Commission was
the only rational means to contribute towards the President’s
stated objectives in instituting the special
dispensation process,
namely to promote national reconciliation and national unity.
Accordingly, Ngcobo CJ held that victims
are entitled to an
opportunity to be heard before the President makes a decision to
grant a pardon under the special dispensation.
7
Biowatch Trust v Registrar, Genetic Resources,
and Others
[2009] ZACC 14
;
2009 (6) SA
232
(CC) at paras 7-9;
Affordable
Medicines Trust and Others v Minister of Health and Others
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC)
at para 138 and
Ferreira v Levin NO and Others;
Vryenhoek and Others v Powell NO and Others (No 2)
[1996] ZACC 27
;
1996 (2) SA 621
(CC);
1996 (4) BCLR 441
(CC) at para
3.
8
Ferreira v Levin NO and Others
above
n Error: Reference source not found at para 3.
9
Executive Council, Western Cape v Minister of Provincial Affairs
and Constitutional Development and Another; Executive Council,
KwaZulu-Natal v President of the Republic of South Africa and Others
[1999] ZACC 13
;
2000 (1) SA 661
(CC);
1999 (12) BCLR 1360
(CC)
at para 138.
10
Affordable Medicines Trust
above
n Error: Reference source not found at para 138.
11
Biowatch
above n Error: Reference source not found at para
16.
12
In
Affordable
Medicines Trust
above n Error: Reference source not found
at para 138 it was held:
“
The award of costs is a matter which is within
the discretion of the Court considering the issue of costs. It is a
discretion
that must be exercised judicially having regard to all
the relevant considerations. . . . The ultimate goal is to do that
which
is just having regard to the facts and circumstances of the
case.”
13
Above n Error: Reference source not found. Judgment was handed down
on 23 February 2010.
14
Chonco 1
above n Error: Reference source not found at para
45.