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[2016] ZACC 45
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Lawyers for Human Rights v Minister in the Presidency and Others (CCT120/16) [2016] ZACC 45; 2017 (1) SA 645 (CC); 2017 (4) BCLR 445 (CC) (1 December 2016)
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Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 120/16
In the matter
between:
LAWYERS FOR HUMAN
RIGHTS
Applicant
and
MINISTER IN THE
PRESIDENCY
First Respondent
MINISTER OF HOME
AFFAIRS
Second Respondent
MINISTER OF
DEFENCE
Third Respondent
MINISTER OF
POLICE
Fourth Respondent
DIRECTOR-GENERAL
OF HOME
AFFAIRS
Fifth Respondent
NATIONAL
COMMISSIONER OF
POLICE
Sixth Respondent
PROVINCIAL COMMISSIONER
OF POLICE,
GAUTENG
Seventh Respondent
CHIEF OF THE SOUTH
AFRICAN NATIONAL
DEFENCE
FORCE
Eighth Respondent
Neutral
citation:
Lawyers
for Human Rights v Minister in the Presidency and Others
[2016]
ZACC 45
Coram:
Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Madlanga J, Mhlantla J, Musi AJ and Zondo J
Judgment:
The Court
Decided
on:
1 December 2016
Summary:
appeal against costs order only —
general costs rule in constitutional litigation — exceptional
circumstances —
inquiry
on
the appropriateness of the proceedings — abuse of process ——
High Court’s discretion to award costs award
of costs in a
constitutional matter raises a constitutional issue — leave to
appeal granted — High Court exercised
its discretion judicially
— no basis to interfere with High Court’s exercise of a
discretion
ORDER
On appeal from the High
Court of South Africa, Gauteng Division, Pretoria:
The
following
order is made:
The application for
leave to appeal is dismissed.
JUDGMENT
THE COURT (Mogoeng
CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Mhlantla J, Musi AJ and Zondo J):
Introduction
[1]
This appeal has its genesis in the
national turmoil that affected all so deeply when attacks on
non-South African nationals were
occurring and large-scale
armed
forces operations took place in 2015. Under
section 13(7) of the South African Police Service Act
[1]
(SAPS Act), the police and the army cordoned off areas in communities
to conduct search and arrest operations.
Multiple
raids took place as part of the joint operations. The
authorities styled this Operation Fiela-Reclaim (main Operation).
[2]
On 8 May 2015 in Johannesburg, search and arrest
operations were carried out in private homes in the early hours
of
the morning without warrants (Operation). Scores of people were
arrested. The applicant, Lawyers for Human Rights
(LHR),
representing most of those arrested, challenged the constitutionality
of the Operation.
[2]
It launched an urgent application
against eight state respondents
[3]
in the High Court of South Africa, Gauteng Division, Pretoria
(High Court). But it only did so six weeks after the Operation
had been completed, on 23 June 2015. LHR asserted that the way
the main Operation was implemented violated the Constitution
because
it was inconsistent with an array of legislation, including the SAPS
Act, the Defence Act,
[4]
the Refugees Act,
[5]
the Criminal Procedure Act
[6]
and the Immigration Act.
[7]
[3]
The urgent application failed.
At issue in this Court is the costs order the High Court granted
against LHR, an unsuccessful
litigant claiming to enforce the
Constitution. This Court
has
decided the application for leave to appeal
against the order without an oral hearing. The Chief Justice
issued directions
inviting the parties to make written submissions,
which they did.
[8]
Litigation History
High Court
[4]
The High Court (Hiemstra AJ) framed
the urgent challenge LHR brought to the constitutional validity of
the main Operation as aimed
at future raids. It was in this
sense pre-emptive. But the Court found that LHR tendered no
evidence that future illegal
raids would occur. So it struck
the application from its roll with costs on the basis that bringing
it as an urgent matter
was gravely inappropriate.
[5]
LHR sought leave to appeal against
the costs order. The High Court refused leave to appeal,
again with costs. Then
LHR unsuccessfully applied for leave to
appeal – only against the costs order – to the Supreme
Court of Appeal.
That application, too, was dismissed with
costs. It now applies for leave to appeal to this Court.
In this Court
Lawyers for Human
Rights’ submissions
[6]
LHR submits that the application was
lodged not to challenge the validity of the main Operation but the
manner in which it was conducted.
Lawful authorisation had not
been obtained. The costs order against it, it says, flouts the
general rule that costs should
not be awarded against unsuccessful
private litigants who seek to vindicate constitutional rights against
state parties.
[7]
LHR invokes the well-established
test for determining whether costs should be awarded against a
private party litigating constitutionally:
was the litigation
frivolous, vexatious or manifestly inappropriate? To be subject
to an adverse costs order, the litigant’s
conduct must be
worthy of censure. Here, LHR points out, the High Court
correctly found that its application was not frivolous
or vexatious.
But the Court found that bringing the application on the basis of
urgency was manifestly inappropriate.
This, LHR says, is
wrong. This is because, although the Operation had been
completed when the application was launched six
weeks later, the
responsible government officials were at that point not willing to
give undertakings that they would not conduct
more raids. This
implicated possible future conduct. For this reason, it was
appropriate for it to seek urgent relief.
[8]
LHR urges this
Court
to endorse the approach the Supreme Court of
Appeal adopted in
Phillips
.
[9]
Mere impatience on a private litigant’s part, and acting
inappropriately in a technical or procedural sense, does not
amount
to vexatious or manifestly inappropriate conduct. In the light
of this principle, the High Court did not exercise
its discretion
judicially. It considered neither
Biowatch
nor
Phillips
.
Department of Home
Affairs’ submissions
[9]
The Minister and Director-General of
the Department of Home Affairs (Department), second and fifth
respondents, dispute LHR’s
contentions. The Department
submits that LHR made no attempt in the urgent application to
challenge the constitutional validity
of section 13(7) of the SAPS
Act. Its challenge impugned only
how
the raids were carried out during the Operation. These were
matters of fact – challenged long after the events.
The
application was extremely belated; six weeks after the impugned
conduct. The issues were by then purely academic.
[10]
The Department also submits that
there was no need for LHR to litigate on an urgent basis; and, even
if the urgency was warranted,
it should have afforded the Department
and the other respondents reasonable time to file answering papers.
Instead, they
were afforded barely a day to file papers. This
was not merely incorrect – it was manifestly inappropriate.
Accordingly,
Phillips
and
Biowatch
do not apply. More so,
Biowatch
is relevant only in constitutional litigation. It is relevant
to judgments on the merits. The issues raised here were
not
materially constitutional, and the merits were not considered.
The High Court exercised a proper discretion in granting
the costs
order.
South African Police
Service’s and South African National Defence Force’s
submissions
[11]
The South African Police Service and
the South African National Defence Force, the sixth and the eighth
respondents, submit that
Biowatch
is applicable in litigation launched to assert constitutional rights,
where there is no impropriety in the manner in which the
litigation
has been undertaken. There must be a genuine, non-frivolous
constitutional challenge. LHR launched the application
primarily to interdict the state from performing its constitutional
and statutory duties. Its object was not to assert
constitutional
rights. It was to obtain an order, on the facts,
declaring the particular authorisation issued in terms of section
13(7)
of the SAPS Act unconstitutional. This was totally
improper because, when the application was launched, the
authorisation
had long been
implemented and
the events were done and dusted.
Assessment
Nature of the litigation
[12]
The award of costs in a
constitutional matter itself raises a constitutional issue. This
Court has jurisdiction.
[10]
And t
he main Operation affected the rights to
privacy and dignity of
those affected by
the search and arrest operations
. The
issues at stake may affect the interests of the public at large.
On this ground, too, the application raises a
constitutional matter.
Leave to appeal must be granted.
Costs order
[13]
This Court in
Ferreira
[11]
endorsed long-standing High Court and Appellate Division
principles on costs awards.
[12]
Costs are in the discretion of the Court and, in general, the
unsuccessful party must pay:
“
The
[High] Court has, over the years, developed a flexible approach to
costs which proceeds from two basic principles, the first
being that
the award of costs, unless expressly otherwise enacted, is in the
discretion of the presiding judicial officer, and
the second that the
successful party should, as a general rule, have his or her costs.
Even this second principle is subject
to the first. The
second principle is subject to a large number of exceptions where the
successful party is deprived of his
or her costs. Without
attempting either comprehensiveness or complete analytical accuracy,
depriving successful parties of
their costs can depend on
circumstances such as, for example, the conduct of parties, the
conduct of their legal representatives,
whether a party achieves
technical success only, the nature of litigants and the nature of
proceedings.”
[13]
[14]
The purpose of awarding costs to a
successful litigant is—
“
to
indemnify him for the expense to which he has been put through having
been unjustly compelled to either initiate or to defend
litigation as
the case may be. Owing to the operation of taxation, [however,]
such an award is seldom a complete indemnity;
but that does not
affect the principle on which it is based.”
[14]
[15]
But in
Biowatch
,
for constitutional litigation, this Court substantially adapted this
general approach. It held that the general rule is
not
to award costs against unsuccessful litigants when they are
litigating against state parties and the matter is of genuine
constitutional
import.
[15]
[16]
And
Biowatch
makes it clear that this does not apply only to costs orders on the
merits
in
constitutional cases. It applies also to what may be described
as ancillary issues and points. For instance, here,
LHR may
have deserved protection not only in regard to the principal
constitutional arguments it sought to advance, but in regard
to the
procedural means it chose to advance them.
This
principle is important. The threat of hefty costs orders may
chill constitutional assertiveness. It may discourage
parties
from challenging constitutionally questionable practices of the
state.
[16]
[17]
In both
Biowatch
and
Helen Suzman Foundation
,
[17]
this Court emphasised that judicial officers should caution
themselves against discouraging those trying to vindicate their
constitutional
rights by the risk of adverse costs orders if they
lose on the merits. Particularly, those seeking to ventilate
important
constitutional principles should not be discouraged by the
risk of having to pay the costs of their state adversaries merely
because
the Court holds adversely to them.
[18]
This, of course, does not mean
risk-free constitutional litigation.
[18]
The Court, in its discretion, might order costs,
Biowatch
said, if the constitutional grounds of attack are frivolous or
vexatious – or if the litigant has acted from improper motives
or there are other circumstances that make it in the interests of
justice to order costs.
[19]
The High Court controls its process. It does so with
a measure of flexibility. So a court must consider
the
“character of the litigation and [the litigant’s] conduct
in pursuit of it”, even where the litigant seeks
to assert
constitutional rights.
[20]
[19]
What is “vexatious”?
In
Bisset
the
Court said this was litigation that was “frivolous, improper,
instituted without sufficient ground, to serve solely as
an annoyance
to the defendant”.
[21]
And a frivolous complaint? That is one with no serious purpose
or value. Vexatious litigation is initiated without
probable
cause by one who is not acting in good faith and is doing so for the
purpose of annoying or embarrassing an opponent.
Legal action
that is not likely to lead to any procedural result is vexatious.
[22]
[20]
Whether an application is manifestly
inappropriate depends on whether the application was so unreasonable
or out of line that it
constitutes an abuse of the process of court.
In
Beinash
,
Mahomed CJ stated there could not be an all encompassing
definition of “abuse of process” but that it could be
said in general terms “that an abuse of process takes place
where the procedures permitted by the rules of the Court to
facilitate the pursuit of the truth are used for a purpose extraneous
to that objective”.
[23]
The Court held:
“
There
can be no doubt that every Court is entitled to protect itself and
others against an abuse of its processes. Where it
is satisfied
that the issue of a subpoena in a particular case indeed constitutes
an abuse it is quite entitled to set it aside.
As was said by
De Villiers JA in
Hudson v Hudson and
Another
1927 AD 259
at 268:
‘
When
. . . the Court finds an attempt made to use for ulterior purposes
machinery devised for the better administration of justice,
it is the
duty of the Court to prevent such abuse.’
What
does constitute an abuse of the process of the Court is a matter
which needs to be determined by the circumstances of each
case.
There can be no all-encompassing definition of the concept of
‘abuse of process’. It can be said
in general
terms, however, that an abuse of process takes place where the
procedures permitted by the Rules of the Court to facilitate
the
pursuit of the truth are used for a purpose extraneous to that
objective.”
[24]
[21]
Ultimately the
inquiry
on the appropriateness of the proceedings requires
a close and careful examination of all the circumstances. This
is what
we have to do here. The considerations include the
period of the delay between the raids and the application, the
reasons
for bringing the application and the prejudice, if any, the
urgent proceedings caused the respondents.
[22]
The
application
before the High Court may not have been fundamentally misdirected and
so unreasonable that merely bringing it counted
against LHR. And
the principal relief LHR sought raised constitutional questions of
pressing significance. It was seeking
to protect the dignity
and privacy of those affected. That was not what triggered the
adverse costs order.
[23]
Despite the constitutional dimensions
of the application itself, the High Court considered the way the
proceedings had been managed
manifestly inappropriate – largely
on the ground of their extreme belatedness, and the fact that they
targeted an operation
that was long gone and done. Indeed,
the
High Court indicated that while it would never suggest that LHR would
launch a frivolous or vexatious application, “its
action in
having the matter placed on the urgent roll was uncalled for and
inappropriate”. This was the basis for awarding
costs
adversely to LHR. The Court made an order it deemed appropriate
to protect its process and
exercised its
discretion in doing so. Unless it exercised that discretion
unjudicially or on a wrong principle, this Court
has no basis to
interfere.
[25]
[24]
Despite LHR’s best efforts, it
has advanced no acceptable basis on which this Court may conclude
that the High Court exercised
its discretion unjudicially.
Nor is the costs order here likely to have a
“chilling effect” on future litigation. The reason
is that the High
Court’s ire about the urgency and the extreme
exaction LHR laid upon the respondents cannot by any stretch be
regarded as
unwarranted. The
Biowatch
principles should not be abused to avoid ordinary court process.
[25]
Although the issues LHR raised before
the High Court may in other circumstances have protected them if they
lost the litigation,
bringing them six weeks after the Operation –
and giving the government respondents barely a day in which to
respond –
was not just imprudent. It was not proper.
[26]
A worthy cause or worthy motive cannot
immunise a litigant from a judicially considered,
discretionarily-imposed adverse costs
order. The High Court
here concluded that the application was inappropriately pursued.
And that this warranted an adverse
costs award against LHR.
Applying
Biowatch
and
Helen Suzman Foundation
,
it is impossible to fault its exercise of its discretion.
Costs in this Court
[27]
Needless to say, LHR did not act
frivolously or inappropriately in seeking leave in this Court to set
aside the High Court costs
order. It will be spared a costs
order here.
Order
[28]
The
following
order is made:
The application for leave
to appeal is dismissed.
For the Applicant:
For the Second and Fifth
Respondents:
For the Third, Fourth,
Sixth, Seventh and Eighth Respondents:
P Kennedy SC and J A
Harwood instructed by Lawyers for Human Rights, Johannesburg Law
Clinic
G Bofilatos SC and T
Mphahlane instructed by the State Attorney
B R Tokota SC and Z
Madlanga instructed by the State Attorney
[1]
68 of 1995.
[2]
Operation Fiela
-Reclaim
actions are conducted by member departments of
the Inter-Ministerial Committee on Migration.
[3]
The respondents are: Minister in the Presidency
(first respondent), Minister of Home Affairs (second respondent),
Minister
of Defence (third respondent), Minister of Police (fourth
Respondent), Director General of Home Affairs (fifth
respondent),
National Commissioner of Police (sixth respondent),
Provincial Commissioner of Police, Gauteng (seventh respondent) and
Chief
of the South African National Defence Force (eighth
respondent).
[4]
42 of 2002.
[5]
130 of 1998.
[6]
51 of 1977.
[7]
13 of 2002.
[8]
The parties were directed to file written
submissions on whether the principles in
Biowatch
Trust v Registrar, Genetic Resources
[2009]
ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC)
(
Biowatch
)
should have been applied when the High
Court awarded costs.
[9]
Phillips v South African Reserve Bank
[2012] ZASCA 38;
2013 (6) SA 450 (SCA).
[10]
Biowatch
above n
8 at para 17.
[11]
Ferreira v Levin NO
[1995]
ZACC 13; 1996 (2) SA 621 (CC); 1996 (1) BCLR 1 (CC).
[12]
See
Fripp v Gibbon &
Co
1913 AD 354
at 357-8;
Kruger
Bros. & Wasserman v Ruskin
1918 AD
63
at 69;
Union Government (Ministry of
Railways and Harbours) v
Heiberg
1919 AD 447
at 484;
Merber v Merber
1948 (1) SA 446
(A) at 452-3; and
Mofokeng
v General Accident Versekering Bpk
1990 (2) SA 712
(W) at 716D.
[13]
Ferreira
above n
11 at para 3. See also
Gamlan
Investments (Pty) Ltd v Trillion Cape (Pty) Ltd
1996 (3) SA 692
(C) at 701C-G.
[14]
Texas Co (SA) Ltd v Cape Town Municipality
1926 AD 467
at 488.
[15]
Biowatch
above n
8 at para 24.
[16]
See in general id at para 28.
[17]
Helen Suzman Foundation v President of the
Republic of South Africa
[2014] ZACC
32
;
2015 (2) SA 1
(CC);
2015 (1) BCLR 1
(CC) at paras 36-8.
[18]
Id and
Biowatch
above n 8 at paras 20 and 23-4.
[19]
See
Helen Suzman
Foundation
id. See also
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. This
approach was underscored by the Supreme Court of Appeal in
Kini
Bay Village Association v The Nelson Mandela Metropolitan
Municipality
[2008] ZASCA 66
;
2009 (2)
SA 166
(SCA) at para 17.
[20]
Biowatch
above n
8 at para 20.
[21]
Bisset
v
Boland Bank Ltd
1991 (4) SA 603
(D) at
608D-F.
[22]
See also section 2(1)(b) of the Vexatious
Proceedings Act 3 of 1956.
[23]
Beinash v Wixley
[1997]
ZASCA 32
;
1997 (3) SA 721
(SCA) at 734F-G.
[24]
Id at 734D-G.
[25]
Trencon Construction (Pty) Limited v
Industrial Development Corporation of South Africa Limited
[2015] ZACC 22
;
2015 (5) SA 245
(CC);
2015 (10) BCLR 1199
(CC) at
paras 83-9 and
National Director of
Public Prosecutions v Zuma
[2009]
ZASCA 1
;
2009 (2) SA 277
(SCA) at para 82.