About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2017
>>
[2017] ZACC 14
|
|
Limpopo Legal Solutions and Others v Vhembe District Municipality and Others (CCT159/16) [2017] ZACC 14; 2017 (9) BCLR 1216 (CC) (18 May 2017)
Links to summary
CONSTITUTIONAL COURT OF
SOUTH AFRICA
Case CCT 159/16
In the matter between:
LIMPOPO
LEGAL
SOLUTIONS
F
irst
Applicant
SANNIE
TINTSWALO
MALULEKE
Second
Applicant
SINDILE
CHAVANE
Third
Applicant
SARAH
MATODZI
MAPONYANI
Fourth
Applicant
and
VHEMBE
DISTRICT
MUNICIPALITY
First Respondent
MINISTER
OF
ENVIRONMENTAL AFFAIRS
Second
Respondent
THULAMELA
MUNICIPALITY
Third
Respondent
Neutral citation:
Limpopo Legal Solutions and Others v Vhembe District Municipality
and Others
[2017] ZACC 14
Coram:
Mogoeng
CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius
AJ and
Zondo J
Judgment:
The Court
Decided on:
18 May 2017
Summary:
application for direct appeal — general costs rule in
constitutional litigation — exceptional circumstances —
inquiry on the appropriateness of the proceedings — abuse of
process constitutional litigation — leave to appeal granted
—
High Court misdirected itself by not applying the
Biowatch
principle — a basis exists to interfere with the High Court’s
exercise of a discretion
ORDER
On appeal from the High Court of South
Africa, Limpopo Local Division, Thohoyandou:
The following order is made:
1.
Leave to appeal against the High Court’s order dismissing the
application is
refused.
2.
Leave to appeal is granted against the costs order in the High Court.
3.
The appeal succeeds with costs.
4.
The costs order in the High Court is set aside and replaced with:
“There is no
order as to costs.”
JUDGMENT
THE COURT (Mogoeng CJ, Nkabinde ADCJ,
Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J,
Mhlantla J, Mojapelo AJ,
Pretorius AJ and Zondo J):
Background
[1] This case involves another costs
order granted by a High Court
[1]
against a non profit organisation litigating in pursuit of
constitutional rights. What is unusual about it is not just
that costs were awarded, but that they were punitive – on an
attorney and client scale.
[2]
The applicants come before us by way of an urgent application
for leave to appeal directly to this Court against an order of the
High Court of South Africa, Limpopo Local Division, Thohoyandou (High
Court).
[2]
The first applicant is a voluntary non-profit association based in
Polokwane, Limpopo. It says it is aimed at protecting
and
exercising human rights and access to justice. The second,
third and fourth applicants are Ms Sannie Tintswalo Maluleke,
Ms
Sindile Chavane and Ms Sarah Matodzi Maponyani. They
describe themselves as three affected residents of Malamulele,
Limpopo. The High Court observed in its judgment that this area
has been “plagued by violent service delivery protests
in the
recent past”.
[3]
[3]
The first respondent is the Vhembe District Municipality
(Vhembe). The second respondent is the Minister of
Environmental
Affairs (Minister). The third respondent is the
Thulamela Municipality (Thulamela). Only Vhembe is before
us.
[4]
[4]
The application originated in urgent proceedings that the
applicants brought against the respondents in the High Court.
There
they sought a final interdict directing all or any of the
respondents to immediately dispatch a team of contractors to fix
burst
sewage pipeline(s) in Section B, Malamulele. Vhembe
opposed the application. Its opposition was both vigorous and
irate.
It said that it became aware of the problem, for the
very first time, when the applicants served their urgent application
on it.
Had the applicants informed it of the burst sewer
through the normal channels – including just a simple phone
call
– the problem would have been attended to within 48 hours.
[5]
More technically, Vhembe contended that, in any event, the
applicants did not meet the requirements for an interdict. This
was because the applicants had alternative remedies – most
obviously, reporting the leak to their ward councillor or to the
local authority. They had no justification for rushing
precipitately to litigation.
[6]
The applicants did not dispute that they had not informed
Vhembe nor the ward councillor of the problem before launching their
urgent
application. Instead, they contended that they didn’t
know that it was the responsibility of Vhembe to attend to the
problem, and not that of Thulamela. And, indeed, they said that
the individual applicants had in fact reported the problem
to
Thulamela on two consecutive days – to no beneficial effect.
They said Thulamela’s officials did not direct
them to Vhembe.
[7]
It seems that the applicants, when instituting the urgent
proceedings against both municipalities, Vhembe and Thulamela, were
still
confused as to which municipality bore the responsibility for
the foul-smelling mess afflicting them.
[8]
Despite this, the High Court adopted Vhembe’s
sense of irate indignation. It dismissed the
application.
And it did so with a punitive costs order.
It ordered each of the applicants, organisational and individual, to
pay Vhembe’s
costs, jointly and severally, on the attorney and
client scale.
Main application
[9]
The High Court’s order dismissing the application is
unassailable. Although the applicants made a brave face of
seeking
to challenge that order, they had no basis for doing so.
The High Court ordered and received a prompt written report from
Vhembe claiming that it was in the process of attending to the
problem. Though the applicants complain that the sewage
spillage
has still not been fully resolved, that is not the issue
here. Nor was it the issue in the urgent proceedings before the
High Court. The issue was whether the applicants should have
come to court entirely without notice to Vhembe. The High
Court
said no – correctly so. Leave to appeal against
that order must be refused.
Sole issue: costs and procedure
[10]
The Chief Justice issued directions inviting the parties to
file written submissions solely on whether the High Court’s
costs
order should be set aside or amended in any way, which they
did. This Court has decided the application without an oral
hearing.
Applicants’
submissions
[11]
The applicants submit that the High Court failed to appreciate
and apply the
Biowatch
[5]
principles. These provided that, in constitutional litigation
against the state, even an unsuccessful private litigant is
spared
costs, unless the application is frivolous or vexatious. The
application, according to the applicants, concerned important
health
and environmental rights. It was neither frivolous nor
vexatious. So there was no basis for the High Court to
depart
from
Biowatch
.
[12]
Further, though the High Court dismissed their application,
the applicants were nevertheless successful. This was because,
they say, Vhembe “admitted” in its report filed with the
High Court that “there was a blockage of sewer system
[that]
could be unblocked fairly quickly.” On this basis, and in
the light of
Biowatch
, far from mulcting them in punitive
costs, the High Court should have ordered Vhembe to pay their costs.
Vhembe’s
submissions
[13]
Vhembe says the constitutional and statutory rights the
applicants invoke have never been disputed. Instead, the
applicants
acted manifestly inappropriately by bringing the
application without first alerting it of the problem. This was
an abuse
of process that went beyond even what this Court censured in
Lawyers for Human Rights
.
[6]
Hence a punitive costs order was warranted. The High Court’s
discretion was exercised judicially to protect its
own process and
the principles on which it acted cannot be faulted.
[14]
Vhembe further submits that it is common cause that by the
time the matter was heard, the problem had been resolved. To
get
Vhembe to attend to the problem required a simple phone call –
not urgent court proceedings. It is generally accepted,
and is
a proper legal practice, to place a party on terms by way of a letter
of demand before rushing to court. This is to
avoid
exacerbating the courts’ tremendous workloads with resultant
delays in the dispensing of justice.
[15]
In particular, Vhembe argues that the punitive costs
order – over and above ordinary costs – is warranted.
The
district municipality was ensnared by way of litigation
brought with no prior warning: an abuse of process that warrants the
unusual
censure the High Court imposed.
Jurisdiction and
leave
to appeal
[16]
An adverse costs award in constitutional litigation itself
raises constitutional issues because of its potentially stifling
effect
on rights assertions.
[7]
The punitive costs award here seems to be unprecedented. It
raises unprecedented issues. Leave to appeal must
be granted.
High
Court’
s exercise of discretion
[17]
It is now axiomatic that a costs award is a matter of
discretion and that there are limited grounds for interfering.
[8]
These grounds may include that the lower court did not act judicially
in exercising its discretion, or based its exercise
of discretion on
wrong principles of law or a misdirection on material facts.
[9]
[18]
On costs, the High Court found that there was no obvious
reason to deviate from the general principle that the successful
party
should be awarded its costs. It took the attitude that
the only issue was whether costs should be punitive. In the
result, the High Court found that the applicants had failed to make
out any case for the relief they claimed. And because
the
application should not have been brought in the first place, a costs
order on an attorney and client scale was appropriate.
[19]
When courts are called upon to exercise discretion on costs,
there are two routes, depending on the case. The first applies
in matters that are not constitutional litigation between a private
party and the state. The general rule there is that,
subject to
exceptions not now material, the successful party should have
costs.
[10]
The second applies in constitutional litigation between a private
party and the state – and the general rule there
is that a
private party who is substantially successful should have its costs
paid by the state
[11]
– but no costs order should be made if the state wins. The
second route, like the first, is subject to exceptions.
[20]
The High Court appreciated that the application entailed
constitutional claims. But it followed the first route, the one
in
non-constitutional litigation. It reasoned that, because the
applicants had lost, costs should follow – and the only
question was whether they should be punitive. That was
incorrect. The High Court misdirected itself and this Court
is
entitled and obliged to reconsider the costs award.
Appropriate costs order in the High
Court
[21]
The now well-established general rule in constitutional
litigation between government and a private party is of course not an
inflexible,
under-all-circumstances, rule. As this Court
pointed out in
Biowatch
—
“the general
approach of this Court to costs in litigation between private parties
and the state, is not unqualified. If an
application is frivolous or
vexatious, or in any other way manifestly inappropriate, the
applicant should not expect that the worthiness
of its cause will
immunise it against an adverse costs award.”
[12]
[22]
In
Lawyers for Human Rights
, this Court, in upholding
an adverse costs order against a constitutional litigant, noted that
“[w]hether 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”.
[13]
So, whether particular conduct constitutes an abuse depends on the
circumstances.
[23]
Here, Vhembe’s indignation at not
being informed of the problem before being dragged to court is well
understandable, as is
the High Court’s endorsement of that
ire. Government is obliged to take reasonable legislative and
other measures to
protect the environment
[14]
and to provide access to healthcare.
[15]
As this Court pointed out in
Mazibuko
,
“social and economic rights enable citizens to hold government
to account for the manner in which it seeks to pursue the
achievement
of social and economic rights”.
[16]
“If one of the key goals of the entrenchment of social and
economic rights is to ensure that government is responsive
and
accountable to citizens through both the ballot box and litigation,”
the Court said, “then that goal will be served
when a
government respondent takes steps in response to litigation to ensure
that the measures it adopts are reasonable”.
[17]
All this points to a cooperative process in which government and
citizen engage, if at all possible, before litigating.
[24]
The High Court held that it was common cause that had Vhembe
“been aware of the need to act to resolve the problem, they
would
have done so. A simple telephone call would have resolved
the matter”.
[18]
It held that the application not only unnecessarily burdened its
urgent roll, in fact, it delayed the fixing of the problem
–
because municipal officials whose energies could have been directed
at managing the sewage spill were instead tied up with
affidavits and
consultations and in court.
[19]
[25]
Yet, as this Court pointed out in
Biowatch
, a
costs order “may have a chilling effect on litigants who might
wish to raise constitutional issues”.
[20]
What happened here shows that the applicants are not solely to blame
for the mishap in the High Court. The fact
is, the
individual applicants did report the problem. They did so to a
public entity they believed was responsible for fixing
it –
Thulamela. And they did so
before
they rushed to court.
[26]
And, instead of Thulamela directing them to Vhembe, where they
should have reported the matter, Thulamela told them a team will be
dispatched to look at the problem. The problem remained unfixed.
And the individual applicants and their fellow residents
continued to
endure the noxious foul-smelling, health-threatening mess the sewage
spillage inflicted on them.
[27]
All this points this way. Misstep or no misstep, the
applicants deserved a measure of leniency from the High Court.
An adverse costs order was inappropriate. And a punitive
order even more so.
[28]
In
Plastic Converters
Association of South Africa
the Labour Appeal Court held, in the context of
non-constitutional matters, that—
“
[t]he
scale of attorney and client is an extra-ordinary one which should be
reserved for cases where it can be found that a litigant
conducted
itself in a clear and indubitably vexatious and reprehensible
conduct. Such an award is exceptional and is intended to
be very
punitive and indicative of extreme opprobrium.”
[21]
[29]
In
constitutional litigation matters
between a private party and the state, even more so. This Court
explained in
Helen Suzman Foundation
:
“The Court
should ordinarily be very loath to grant a punitive costs order in a
case like this. This is constitutional litigation
and parties should
never be forced to be too careful to assert their constitutional
rights through a court process, for fear of
a costs order. And this
would explain this Court’s general disinclination to make costs
orders against unsuccessful parties
who chose to vindicate
constitutional rights against the state. Punitive costs should
therefore never be an easy option, regard
being had to the
Biowatch
principles. But that is not to say that no costs could ever be
ordered against those litigating against the state. On the contrary
Biowatch
itself said:
‘It bears
repeating that what matters is not the nature of the parties or the
causes they advance but
the character of the litigation and their
conduct in pursuit of it
. This means paying due regard to whether
it has been undertaken to assert constitutional rights and
whether
there has been impropriety in the manner in which the litigation has
been undertaken
. . . . [P]ublic interest groups should not be
tempted to lower their ethical or professional standards in pursuit
of a cause.
[T]he general approach of this Court to
costs in litigation between private parties and the state, is not
unqualified. If an application
is frivolous or vexatious, or in any
other way manifestly inappropriate, the applicant should not expect
that the worthiness of
its cause will immunise it against an adverse
costs award.’”
[22]
[30]
Here, the High Court did not, against the background of
Biowatch
, award punitive costs for reasons it set out.
On the contrary, it concluded that the punitive order was warranted
only because
the applicants “had failed to make out a case for
the relief claimed and [the application] should not have been brought
in
the first place”:
“There is no
good reason shown for the First Applicant’s failure to ensure
the matter was ripe for litigation. One would
assume that they have
the resources and knowledge to advise the community members they
strive to assist and could have ensured
that the correct institution
is informed along the correct route, of the leak or blockage. The
Applicants further failed to place
any evidence before the court of
the dereliction of any statutory duty by [Vhembe] to provide and
maintain sanitary services to
the community at Section B, Malamulele.
For the court to grant the relief in the general terms prayed for,
there should in the
least have been evidence of the degree and nature
of the failure of [Vhembe], such as information as to how many people
or households
are not being provided sanitation services and in what
way [Vhembe] did not act appropriately to address the issue.”
[23]
[31]
With respect to the High Court, which was dealing with the
burdensome exigencies of a crowded urgent roll, this passage does
show
the weakness in its approach. No mention of “
clear
and indubitably vexatious and reprehensible conduct”.
[24]
No explanation of conduct that demands “extreme
opprobrium”.
[25]
Nor anything pointing to something more than the applicants’
high anxiety to get the sewage spill fixed – an
anxiety every
one of us should be able to understand.
[32]
And it is not inapposite to mention here, as we did in
Tebeila
,
[26]
that the first applicant, and those it represents, including the
three individual applicants, are resident in remote rural areas,
which, it is common knowledge, are often lamentably under-served by
local and provincial government.
[33]
For all these reasons,
Biowatch
must prevail. An
adverse costs order should not have been imposed, still less a
punitive costs order. The just and
fair outcome, which this
Court is bound to intervene to secure, is that each party must pay
its own costs in the High Court.
Costs in this Court
[34]
The applicants have had substantial success and should get
their costs here.
Order
The following order is made:
1.
Leave to appeal against the High Court’s order dismissing the
application is
refused.
2.
Leave to appeal is granted against the costs order in the High Court.
3.
The appeal succeeds with costs.
4.
The costs order in the High Court is set aside and replaced with:
“There is no
order as to costs.”
For the Applicants:
S Tebeile and K Maluleke
instructed by Mampa Edwin Thupane
Attorneys
For the First Respondent:
R J Raath SC and M
Rantho
instructed by Tshiredo Attorneys
[1]
For other recent instances, see
Hotz v University of Cape Town
[2017] ZACC 10
;
Lawyers
for Human Rights v Minister in the
Presidency
[2016] ZACC 45
;
2017 (1) SA
645
(CC);
2017 (4) BCLR 445
(CC) (
Lawyers
for Human Rights
); and
Tebeila
Institute of Leadership, Education, Governance and Training v
Limpopo College of Nursing
[2015] ZACC 4
;
2015 (4) BCLR 396
(CC)
(
Tebeila
).
[2]
Lamminga AJ.
[3]
Limpopo Legal Solutions v Vhembe District Municipality
[2016]
ZALMPTHC 20 (High Court judgment) at para 9.
[4]
In the High Court, Thulamela filed a notice of intention to oppose.
However, the applicants abandoned any claim to relief
against it.
And they conceded that bringing the Minister to court was a
misjoinder.
[5]
Biowatch Trust v Registrar, Genetic Resources
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10)
BCLR 1014
(CC) (
Biowatch
).
[6]
Lawyers
for
Human Rights
above n 1.
[7]
Biowatch
above n 5 at para 10.
[8]
Id at para 29.
[9]
South African Broadcasting Corp Ltd v National
Director of Public Prosecutions
[2006] ZACC 15
;
2007 (1)
SA 523
(CC);
2007 (2) BCLR 167
(CC) at para 41.
[10]
Ferreira v Levin NO; Vryenhoek v Powell NO
[1995] ZACC 13
;
1996 (2) SA 621
(CC);
1996 (1) BCLR 1
(CC) at para 155.
[11]
Tebeila
above n 1 at para 4.
[12]
Biowatch
above n 5 at para 24.
[13]
Lawyers for Human Rights
above
n 1 at para 20
.
[14]
Section 24(b) of the Constitution.
[15]
Section 27(1)(a) and (2) of the Constitution.
[16]
Mazibuko v City of Johannesburg
[2009] ZACC 28
;
2010 (4) SA 1
(CC);
2010 (3) BCLR 239
(CC) at paras 70-1.
[17]
Id at para 96.
[18]
High Court judgment above n 3 at para 25.
[19]
Id at para 27.
[20]
Barkhuizen v Napier
[2007]
ZACC 5
;
2007 (5)
SA 323
(CC);
[2007] ZACC 5
;
2007 (7) BCLR
691
(CC) at para 90.
[21]
Plastic Converters Association of South Africa on behalf of
Members v National Union of Metalworkers of SA
[2016] ZALAC 39
;
[2016] 37 ILJ 2815 (LAC) (
Plastic Converters Association of South
Africa
) at para 46.
[22]
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 para 36
.
[23]
High Court judgment above n 3 at para 31.
[24]
Plastic Converters Association of South Africa
above n 21 at
para 46
.
[25]
Id.
[26]
Tebeila
above n 1 at para 15.