About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2015
>>
[2015] ZACC 4
|
|
Tebeila Institute of Leadership, Education, Governance and Training v Limpopo College of Nursing and Another (CCT155/14) [2015] ZACC 4; 2015 (4) BCLR 396 (CC) (26 February 2015)
Links to summary
Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 155/14
In
the matter between:
TEBEILA
INSTITUTE OF LEADERSHIP,
EDUCATION,
GOVERNANCE, AND
TRAINING
............................................................
Applicant
and
LIMPOPO
COLLEGE OF
NURSING
......................................................................
First Respondent
MEMBER
OF THE EXECUTIVE COUNCIL,
DEPARTMENT
OF HEALTH,
LIMPOPO
PROVINCE
...........................................................................................
Second
Respondent
Neutral
citation:
Tebeila Institute of
Leadership Education, Governance and Training v Limpopo College of
Nursing and Another
[2015] ZACC 4
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J,
Froneman J, Jappie AJ, Khampepe J, Madlanga J,
Molemela AJ, Nkabinde J,
Theron AJ, and Tshiqi AJ
Judgment:
The Court
Decided
on:
26 February 2015
Summary:
Appeal against costs order —
general costs rule in constitutional litigation — avoid
deterring parties from pursuing
constitutional claims —
exceptional circumstances warranting intervention — costs order
set aside
ORDER
1.
Leave to appeal is granted.
2.
The appeal succeeds with costs.
3.
The costs order of the High Court is set
aside.
4.
The respondents must pay the applicant’s
costs in the High Court.
JUDGMENT
THE
COURT
[1]
At issue is a costs order granted by the
High Court of South Africa, Gauteng Division (functioning as Limpopo
Division, Polokwane)
(High Court) – more particularly, the part
of it that deprived the applicant of the costs it incurred when it
successfully
challenged an exclusion the first respondent applied
when admitting students. The applicant, a non-governmental
educational
institution in a rural area of Limpopo Province, brought
a constitutional challenge to the admissions policy of the first
respondent,
the Limpopo College of Nursing (College). The
policy required aspiring nursing students to have obtained a
school-leaving
certificate “not more than three years ago”.
This, the applicant complained, irrationally and unfairly excluded
many worthy prospective students who had left school more than three
years previously.
[2]
The High Court (Makgoba J) agreed. It
condemned as insufficient the justification the College and the
second respondent, the
Member of the Executive Council for the
Department of Health, Limpopo Province (MEC), attempted to proffer in
defence of the bar.
The Court found it unwarrantable under both
section 9(1) and section 9(3) of the Bill of Rights, and ruled
it constitutionally
invalid.
[3]
So
the applicant succeeded, ringingly. But then came the glitch.
Instead of granting the applicant its costs, the High
Court’s
order specified that “[e]ach party shall pay its own costs”.
[1]
This deprived the applicant of the costs it had to incur to overturn
the ban. In delivering its reasons, the High Court explained
its ruling thus:
“
The
case before me does not warrant an award of costs against the
unsuccessful party in that the issues raised in this matter are
of a
constitutional nature.”
[4]
This
was very plainly a mistake. The applicant was entitled to its
costs. The general principle in constitutional litigation
was
laid down in
Biowatch
.
[2]
In
that case, this Court found that the general rule in constitutional
litigation between a private party and the state is that
if the
private party is successful, it should have its costs paid by the
state, while, if unsuccessful, each party should pay its
own
costs.
[3]
[5]
What
is more, in
Biowatch
the Court held that, when departing from the general rule, a court
“should set out reasons that are carefully articulated
and
convincing”. This, it noted, “would not only be of
assistance to an appellate court, but would also enable
the party
concerned and other potential litigants to know exactly what had been
done wrongly, and what should be avoided in the
future”.
[4]
[6]
In saying this, the Court had in mind the
case before it, where a member of the public, litigating to protect
constitutional rights,
was unjustly saddled with an adverse costs
award, but what it said applies equally to other deviations from the
general rule.
Courts must “carefully and convincingly
articulate” why they deprive members of the public of their
costs when they
successfully challenge constitutional injustices.
[7]
The
Court in
Biowatch
set out the rationale for ruling that successful private litigants
get their costs when litigating against organs of state, but
are not
saddled with the state’s costs when losing.
[5]
It explained that adverse costs orders have a chilling effect on
parties seeking to assert constitutional rights. But
it noted
further implications, observing that “[m]eritorious claims
might not be proceeded with because of a fear that failure
could lead
to financially ruinous consequences”.
[6]
And it added, presciently for the arguments in this case, that—
“
[s]imilarly,
people might be deterred from pursuing constitutional claims because
of a concern that even if they succeed they will
be deprived of their
costs because of some inadvertent procedural or technical lapse.”
[8]
The applicant invokes precisely this
point. It says that its right of access to courts, and that of
other litigants, is impeded,
because the costs order here will make
it reluctant to litigate against the state where this is necessary,
because of the risk
of not being indemnified for its costs even when
it succeeds.
[9]
And, indeed, the applicant’s fears
have an added edge here as there was no lapse, inadvertent,
procedural or technical, that
could have justified depriving it of
its costs. The applicant appears to have conducted its case
impeccably. So there
was no basis at all for departing from the
general rule.
[10]
The costs order granted by the High Court
seems to have been a mere slip. In an inadvertent transposition
of logic, the Court
appears to have taken the rule that protects
unsuccessful constitutional applicants from adverse costs orders, and
applied it for
the benefit of state institutions here by depriving
the applicant of the favourable costs award to which it is entitled.
[11]
In
these circumstances, the applicant asks this Court to overturn the
costs order. This Court issued directions on 3 December
2014
requiring the parties to submit short argument on whether it is in
the interests of justice to approach this Court directly,
instead of
the Full Court
[7]
of the High
Court and the Supreme Court of Appeal, and on the merits of the
challenge to the costs order.
[12]
The
respondents oppose. They contend that the High Court did not
exercise its discretion capriciously or incorrectly.
But that
is wrong. In this case, the High Court did not elaborate its
reasoning for depriving the applicant of its costs.
Its order
was plainly an inadvertent misapplication of the
Biowatch
logic. That constituted a clear misdirection. If it is shown
that a court exercised its discretion based on incorrect principles
of law, an appeal court may interfere with that exercise of
discretion.
[8]
[13]
The
more difficult question – which the respondents fail to address
– is whether this Court should use its clout to
intervene and
fix the mistake. That involves difficult issues of
institutional power, energy and time. Few appellate
courts
countenance appeals on costs alone, and indeed the statute regulating
appeals from a High Court to a Full Court or the Supreme
Court of
Appeal has long provided that an appeal may be dismissed on the sole
ground that the decision sought “will have
no practical effect
or result” and that, save under exceptional circumstances, the
question whether there would be any practical
effect or result must
be determined “without reference to any consideration of
costs”.
[9]
The
practical impact of this provision is that appeals on costs alone are
allowed very rarely indeed.
[10]
[14]
All this makes this Court reluctant to
correct the mistake here. And we have given careful
consideration to the alternative.
This is to dismiss the
application and send the applicant back to the High Court, in order
to seek its leave to appeal against
the costs order to the Full
Court. But, as shown above, that course may fail on the very
point that appeals against costs
orders alone are not countenanced.
So, for the applicant, that would likely be a dead end.
[15]
There
are considerations militating in the applicant’s favour in this
Court. The subject of the challenge it litigated,
namely access
to further education, was plainly constitutional.
[11]
And those on whose behalf it brought the challenge – students
in the country’s rural areas – are entitled
to particular
respect for their social and constitutional entitlements.
[16]
Moreover,
there are exceptional circumstances warranting this Court’s
intervention.
[12]
First,
this is the first time this Court has been confronted with a case
where a litigant who has successfully vindicated
constitutional
rights has been deprived of its costs. The case therefore makes
a singular claim for intervention.
[17]
Second, it is nearly six years since this
Court handed down
Biowatch
.
The applicant’s plaint affords this Court a useful opportunity
to restate the principles laid down in
Biowatch
and to emphasise the rationale behind them. In particular, the
case serves as a reminder to judicial officers handing down
costs
orders that litigants successfully asserting their constitutional
rights against state institutions should get their costs
unless there
are “carefully articulated and convincing” reasons to
deprive them of those costs.
[18]
For these reasons, the interests of justice
favour granting the applicant leave to appeal. They also favour
intervening to
set aside the costs award. There will be a
consonant order.
Order
1.
Leave to appeal is granted.
2.
The appeal succeeds with costs.
3.
The costs order of the High Court is set
aside.
4.
The respondents must pay the applicant’s
costs in the High Court.
For
the Applicant:
S
Tebeile and K Mokwena instructed by Obi Matlaila Attorneys.
For
the Respondents:
C
Brand SC and O Mudau instructed by State Attorney, Polokwane.
[1]
The
applicant brought its application on an urgent basis. The High
Court granted the applicant the substantive order it
sought,
together with the impugned costs order, on 27 August 2014. The
High Court furnished the reasons for the order on
8 September 2014.
[2]
Biowatch
Trust v Registrar Genetic Resources and Others
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC)
(
Biowatch
).
[3]
Id
at para 43.
[4]
Id
at para 25.
[5]
The
full passage in the
Biowatch
judgment at para 23 reads:
“
The
rationale for this general rule is three-fold. In the first
place it diminishes the chilling effect that adverse costs
orders
would have on parties seeking to assert constitutional rights.
Constitutional litigation frequently goes through many
courts and
the costs involved can be high. Meritorious claims might not
be proceeded with because of a fear that failure
could lead to
financially ruinous consequences. Similarly, people might be
deterred from pursuing constitutional claims
because of a concern
that even if they succeed they will be deprived of their costs
because of some inadvertent procedural or
technical lapse.
Secondly, constitutional litigation, whatever the outcome,
might ordinarily bear not only on the interests
of the particular
litigants involved, but also on the rights of all those in similar
situations. Indeed, each constitutional
case that is heard
enriches the general body of constitutional jurisprudence and adds
texture to what it means to be living in
a constitutional
democracy. Thirdly, 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 of 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 costs
consequences of failure. In this way responsibility
for
ensuring that the law and State conduct are constitutional is placed
at the correct door.” (Footnote omitted.)
[6]
Id.
[7]
A
Full Court is the statutory term for a bench of three High Court
judges sitting as an appeal court of that Division. See
sections 1
and
16
(1)(a)(i) of the
Superior Courts Act, 10 of 2013
and
section
20(2)(a)
of the repealed Superior Courts Act, 59 of 1959.
[8]
See
Giddey
N.O. v JC Barnard and Partners
[2006] ZACC 13
;
2007 (5) SA 525
(CC);
2007 (2) BCLR 125
(CC) at para
19.
[9]
Section
16
of the
Superior Courts Act 10 of 2013
, entitled “Appeals
generally”, provides:
“
(1)
Subject to
section 15(1)
, the Constitution and any
other law—
.
. .
(2)
(
a
) (i)When at the hearing of an appeal the issues are of
such a nature that the decision sought will have no practical effect
or
result, the appeal may be dismissed on this ground alone.
(ii)
Save under exceptional circumstances, the question whether the
decision would have no practical effect or result is to be
determined without reference to any consideration of costs.”
This
provision was almost identically contained in section 21A(1) and (3)
of the Supreme Court Act 59 of 1959.
[10]
This
Court’s decision in
Coetzee
v National Commissioner of Police and Another
[2013] ZACC 29
;
2013 (11) BCLR 1227
(CC) (
Coetzee
)
provides an illustration. The Court refused leave to appeal
against an adverse costs award of the Supreme Court of Appeal
because the issue at stake was not constitutional. The
challenge to the Supreme Court of Appeal’s findings was
largely factual. To the same effect is this Court’s
decision in
Justice
Alliance of South Africa v Minister for Safety and Security and
Others
[2013] ZACC 12
;
2013 (7) BCLR 785
(CC), where this Court refused to
set aside adverse costs awards against the applicant on the basis
that the challenge it brought
was not based on any infringement of a
fundamental right in the Constitution (see para 15).
[11]
In
this respect, the present case differs from
Coetzee
id and is more like
Stainbank
v South African Apartheid Museum at Freedom Park and Another
[2011] ZACC 20
;
2011 (10) BCLR 1058
(CC) (
Stainbank
).
That matter involved a recusation challenge. This Court
plainly had constitutional jurisdiction. While rejecting
the
constitutional challenge, the Court held that the applicant’s
related complaint, about the High Court’s costs
order, was an
issue connected with a constitutional issue, which gave it
jurisdiction (see para 27).
[12]
See
Stainbank
id at para 29 and
Biowatch
above n 2 at para 11.