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[2017] ZACC 34
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Limpopo Legal Solutions and Another v Eskom Holdings Soc Limited (CCT61/17) [2017] ZACC 34; 2017 (12) BCLR 1497 (CC) (26 September 2017)
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Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
61/17
In the matter
between:
LIMPOPO LEGAL
SOLUTIONS
First
Applicant
MESHACK
MASINGI
Second
Applicant
and
ESKOM HOLDINGS
SOC
LIMITED
Respondent
Neutral citation:
Limpopo Legal Solutions and Another v Eskom Holdings Soc Limited
[2017] ZACC 34
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:
26 September 2017
Summary:
Costs
— general rule in constitutional litigation — exceptional
circumstances — abuse of process
Constitutional
litigation — leave to appeal — High Court not applying
Biowatch
— application nevertheless manifestly
inappropriate — punitive costs order in High Court warranted
ORDER
On appeal from the
High Court of South Africa, Limpopo Division, Polokwane:
The following order
is made:
1. The application for leave to appeal is dismissed.
2. There is no order as to costs in this Court.
JUDGMENT OF THE COURT
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):
Introduction
[1]
The first applicant, Limpopo Legal Solutions, is no stranger
to litigating in this Court. In the past year alone, it has
launched
no fewer than five applications for leave to appeal.
[1]
This application was filed on 16 March 2017. In it, Limpopo
Legal Solutions seeks leave to appeal directly against
the order of
the High Court of South Africa, Limpopo Division, Polokwane
(High Court). The High Court (Kgomo J)
discharged a rule
nisi
, granted on 31 May 2016, and dismissed the application
with costs on the scale as between attorney and client.
Parties
[2]
Limpopo Legal Solutions, established on 10 May 2016, is a
non-profit organisation and a voluntary association. It
operates
in a largely rural area of South Africa that is remote
from the main urban centres. Its sole stated purpose is to
promote
and protect the exercise of human rights. The
organisation’s constitution, attached to the application, lists
Advocate
Tsundzuka Kevin Maluleke in its schedule of
initial members. The second applicant, Mr Meshack Masingi,
is an adult residing at Stand No 459, Section C,
Malamulele, Limpopo Province. The respondent is Eskom Holdings
Soc Limited, a state-owned entity established to generate and supply
electricity, including to residents of Section C, Malamulele.
[3]
This Court has decided the application without an oral hearing
and without written submissions.
[2]
Background
[4]
These facts are not disputed. On 29 May 2016, Eskom
received a telephone call or complaint.
[3]
There was a loose electricity cable in Section C, Malamulele.
That very same day, Eskom dispatched a technician
to the
site to investigate. The technician confirmed that
although the cable was hanging lower than normal, it was out
of reach
from cars and pedestrians. In addition, it was covered with a
plastic shield.
[4]
This meant that it could not endanger the safety of the residents.
The very next day, on 30 May 2016, Eskom deployed
a team of
workers to the site.
[5]
[5]
Undaunted by Eskom’s prompt response, the applicants
launched an urgent application in the High Court on that same day, 30
May 2016.
[6]
Around 11:30, Eskom was served with the papers.
[7]
The applicants sought a rule
nisi
calling on Eskom to show
cause why a final order should not be granted directing Eskom to
dispatch a team of specialists or technicians
to Section C,
Malamulele to repair or replace the exposed, damaged, low-hanging
electricity cable.
[8]
The repair was said to be necessary to guarantee the safety of
“vulnerable children, motorists or affected residents
of
Section C, Malamulele”.
[9]
The application specified the time of appearance at Court was 17:30
that same day.
[10]
Mr Maluleke represented the first applicant.
[6]
While Mr Maluleke was still waiting for the papers to be
issued out of the High Court, Eskom’s employee, Ms
Mhlwatika,
called him on his cell phone. She informed him of
good news: Eskom was addressing the complaint there and then.
Right
away. She urged Mr Maluleke, in the light of this, not to
continue with the urgent application.
[11]
[7]
Ms Mhlwatika phoned Mr Maluleke a second time to verify that
the legal hounds had been re-kennelled. His cell phone was
off.
[12]
Ms Mhlwatika’s punctiliousness was undeterred. She
then sent an email to Mr Maluleke, confirming that the
complaint was
being attended to. Again, she requested him to hold off the
urgent application.
[13]
Mr Maluleke received this email at 17:03 on 30 May 2016.
[14]
[8]
Ms Mhlwatika’s energy and public-spiritedness were not
done yet. She had photographs of the workers, taken on-site, as
they were attending to the lapsed cable. A WhatsApp message
with these photographs was forwarded to Mr Maluleke at 17:11.
[15]
All this
before
the time set out in the urgent application for
the matter to be called in Court.
[9]
None of this availed. Mr Maluleke went ahead with the
urgent application. He successfully moved it in Court the
next day, on 31 May 2016. Eskom, understandably, did not
appear. Why should it? There was no reason for it to
appear. Yet, in Eskom’s absence, the Court granted an
interim order against it. The return date was 28 June 2016
(later extended to 2 August 2016).
[16]
[10]
When Eskom heard that, despite its energetic and immediate
efforts, an order had been granted, it rose in opposition.
Indignant
opposition. It sought dismissal with costs on the
scale as between attorney and client, payable by the members of the
first
applicant only. The second applicant was to be
specifically excluded from any costs order.
[17]
[11]
On 2 August 2016, the rule
nisi
was further
extended to 10 October 2016. On that date, the
application was postponed
sine die
(without assigning a day
for further hearing), and the rule
nisi
was extended until it
was confirmed or discharged.
[18]
High Court
[12]
The question before the High Court was whether the applicants
were justified at all in moving the application before the Judge
President
on 31 May 2016.
[19]
Eskom maintained that the applicants misled the Court.
[20]
They moved the application despite Eskom’s assurances to them –
assurances backed up by WhatsApp photographs
– that their
complaint was already receiving immediate attention. What was
more, Eskom said, the applicants were not
honest about urgency.
[21]
Worse still – they failed to disclose to the Court that Eskom
was in the process of repairing the electricity cable
at the very
time the proceedings were instituted.
[22]
Eskom said that it had already discharged its duty to ensure the
residents’ safety the day before the application was
moved in
Court.
[23]
[13]
The Court agreed with Eskom. It held that the applicants
deliberately withheld vital information.
[24]
Had they not, in all likelihood, the Court on 31 May 2016
would have refused to grant the interim order.
[25]
Mr Maluleke failed to inform the Court when he moved the application
on that day that Eskom’s technicians had already
started fixing
the cable. Nor did he tell the Court that, by the time argument
was ultimately heard, the cable could be expected
to have been
repaired.
[26]
[14]
Despite knowing that Eskom was attending to the problem, the
applicants barged ahead with the urgent application. This, the
High Court held, was conduct of the “utmost dishonesty”.
[27]
It was “irrational, ill-thought, capricious and/or
superfluous”.
[28]
What the applicants were seeking had in fact already been attained.
The Court asked, “So what next!”
[29]
We agree that this was reprehensible.
[15]
Worse was that the applicants just did not let go. They
insisted on pursuing the litigation eight months down the line.
All this justified discharging the rule
nisi
and not merely
dismissing the application. There had to be costs, and those
costs had to be on the scale as between attorney
and client.
[30]
Before this Court
[16]
The applicants seek leave to appeal directly against the
order, including the costs order of the High Court. Relying on
section
24 of the Constitution,
[31]
they submit that the low-hanging electricity cable was not safe for
members of the Malamulele community. They further submit
that
section 7(2) of the Constitution imposes a duty on Eskom to protect
the right to a safe environment enshrined in section 24.
[32]
In addition, they take issue with the adverse costs order and submit
that the High Court overlooked that this was constitutional
litigation. The applicants claim no order as to costs at all
was appropriate because the first applicant was just an unsuccessful
litigant claiming to enforce rights.
[17]
Eskom opposes. It vigorously supports the High Court’s
order, including the costs award. It contends that there
is no
constitutional issue, and that the costs order was anyhow justified.
The application was dead in the water by the time
it was heard and
the rule
nisi
granted – dead, vexatious, and frivolous.
The High Court exercised its discretion judicially to protect its own
processes.
It was entitled to do so. There is no reason
for this Court to interfere.
[18]
The applicants’ contention that the High Court erred in
discharging the rule
nisi
and dismissing the application has
no shred of merit. The applicants failed to establish the
requirements for a mandamus.
The High Court’s findings
are unassailable.
[19]
But what of the costs order?
Costs order
[20]
A costs award, of course, falls within a court’s
discretion.
[33]
An appellate tribunal cannot willy-nilly intervene. The grounds
for interfering are limited. Khampepe J
aptly summarised
the applicable standard:
“When a lower court exercises a discretion in the true sense,
it would ordinarily be inappropriate for an appellate court
to
interfere unless it is satisfied that this discretion was not
exercised—
‘judicially,
or that it had been influenced by wrong principles or a misdirection
on the facts, or that it had reached a decision
which in the result
could not reasonably have been made by a court properly directing
itself to all the relevant facts and principles.’”
[34]
[21]
In
Limpopo Legal Solutions I
, this Court clarified and
reaffirmed the principles on costs orders:
“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.
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 – but no costs order should be made if the
state wins. The second
route, like the first, is subject
to exceptions.”
[35]
(Footnotes omitted.)
[22]
Biowatch
[36]
fundamentally clarified the nature of costs in constitutional
litigation. 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.
[37]
This Court recently explained the reason – to avert the
chilling effects of an adverse costs order:
“In both
Biowatch
and
Helen Suzman Foundation
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.”
[38]
(Footnote omitted.)
But
Biowatch
drew a limit. The line was this – applications that are
“frivolous or vexatious, or in any other way manifestly
inappropriate”, get no shelter from adverse costs.
[39]
Biowatch
does not allow risk-free constitutional
litigation.
[40]
The worthiness of an applicant’s cause “will [not]
immunise it against an adverse costs award”.
[41]
[23]
In
Lawyers for Human Rights
, this Court had to consider
an adverse costs order against a party litigating to secure
constitutional rights. It gave content
to the
Biowatch
exceptions.
[42]
It held that “vexatious” litigation is—
“litigation that [is] ‘frivolous, improper, instituted
without sufficient ground, to serve solely as an annoyance to
the
defendant’. 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.”
[43]
(Footnotes omitted.)
And a “manifestly
inappropriate” application was described as an application that
is “so unreasonable or out of
line that it constitutes an abuse
of process of court”.
[44]
High Court’s
exercise of discretion
[24]
Did the High Court exercise its discretion unjudicially or in
a manner that justifies interference? Here, we should see that
the costs order the Court granted was two-layered. First, there
was a costs order against a litigant seeking to vindicate
constitutional rights. That, in itself, requires warrant under
Biowatch
. But, second, the Court went further. It
awarded costs on a punitive scale. This was because the
applicants’
conduct was “irrational, ill-thought,
capricious and/or superfluous”.
[45]
[25]
The High Court was justified in describing the first
applicant’s conduct in this way. But what of
Biowatch
?
The applicants argue that the High Court failed to consider its
principles. Because the case raises important constitutional
issues, so the argument goes, the High Court should not have made any
costs order at all.
[26]
This argument previously assisted the first applicant in
persuading this Court to reverse an adverse or punitive costs order
following
dismissal of its urgent application. In
Limpopo
Legal Solutions I
, the High Court of South Africa, Limpopo Local
Division, Thohoyandou (Thohoyandou High Court) dismissed an
application with punitive
costs. This Court set aside that
order on the basis that the Thohoyandou High Court had failed to
adequately justify the
costs order:
“
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.”
[46]
[27]
The applicants there did not dispute that they had not
informed the respondent or the ward councillor of the problem before
launching
their urgent application. Instead, they contended
that they did not know that it was the responsibility of the
respondent,
Vhembe District Municipality, to attend to the
problem.
[47]
The applicants were confused about which municipality, Vhembe
District Municipality or Thulamela Municipality, bore
responsibility to attend to the problem. This formed the basis
for this Court’s merciful intervention in setting aside
the
adverse costs order. Confusion, not impropriety.
[28]
In
Limpopo Legal Solutions II
, this Court set aside an
adverse costs award by the Thohoyandou High Court.
[48]
There, the Thohoyandou High Court lumped the first applicant with
costs without referring to
Biowatch
at all. In
overturning that costs order, this Court said:
“[T]he High Court overlooked the approach to costs relevant to
constitutional litigation as set out in
Biowatch
. It
simply adopted the approach that costs follow the result. It
should not have awarded costs. In doing so,
it applied a wrong
principle on costs in constitutional litigation against the state.
That the court
a quo
decided the issue of costs on a wrong
principle entitles this Court to interfere with the exercise of its
discretion on costs.
Accordingly, this Court should interfere
with that decision and set it aside.”
[49]
[29]
In
Limpopo Legal Solutions I
, the conduct in bringing
the litigation was not so egregious as to fall within the
Biowatch
exceptions.
[50]
Similarly, in
Limpopo Legal Solutions II
, this Court saved the
first applicant from a costs award on the basis that there was no
manifest impropriety in the manner in which
the litigation was
conducted.
[51]
These decisions are way off the present case. They do not
assist the first applicant. There was no suggestion
in those
cases that the first applicant jumped the gun or behaved as
egregiously as here in misleading the High Court.
[30]
And this is not an instance where the High Court failed to
explain or justify its costs order. The Court substantiated its
reasons for awarding costs with convincing detail.
[52]
[31]
In
Biowatch
, this Court emphasised that in determining
whether an adverse or punitive costs order against a private party in
constitutional
litigation is warranted, regard must be had to the
conduct of the parties. In particular, for the
Biowatch
principle to protect an unsuccessful private party against an adverse
costs order, there must be no “impropriety in the manner
in
which the litigation has been undertaken”.
[53]
[32]
In
Helen Suzman Foundation
, this Court cautioned that a
“court should ordinarily be very loath to grant a punitive
costs order” in constitutional
litigation.
[54]
However, the Court hastened to qualify this. It did not “say
that no costs could ever be ordered against those
litigating against
the state”.
[55]
[33]
Here, the first applicant’s conduct in launching and
pursuing the litigation was vexatious, frivolous, and manifestly
inappropriate.
The litigation was initiated without good
cause. It served no serious purpose or value. And it was
entirely unreasonable.
All this fell without grip through the
Biowatch
safety net. The High Court was therefore
justified in awarding a costs order against the applicants.
[34]
But what of the scale of costs?
Punitive costs
order
[35]
In
Nel
,
[56]
the then-Appellate Division held:
“The true explanation of awards of attorney and client costs
not expressly authorised by statute seems to be that, by reason
of
special considerations arising either from the circumstances which
give rise to the action or from the conduct of the losing
party, the
court in a particular case considers it just, by means of such an
order, to ensure more effectually than it can do by
means of a
judgment for party and party costs that the successful party will not
be out of pocket in respect of the expense caused
to him by the
litigation.”
[57]
[36]
Here, the first applicant actively misled the High Court to
secure its interim order. Where a losing party “lower[s]
[its] ethical and professional standard[s] in pursuit of a
cause”,
[58]
as happened here, that party can obviously not invoke
Biowatch
to escape liability for costs. That could include the unusual
rebuke of granting a punitive costs order against a constitutional
litigant. Indeed, a court may consider it just to award a
punitive costs order against the unsuccessful party, not just as
punishment, but also to protect the successful party against being
left “out of pocket”.
[37]
The Court in
Nel
explained that a costs order on a
scale as between party and party is
theoretically
meant to
ensure that the successful party is not left “out of pocket”
in respect of expenses incurred by him in the
litigation.
However, as
Nel
noted, this is hardly the case.
[59]
Almost invariably, party and party costs that a successful litigant
may recover from the unsuccessful party are not enough
to fully cover
the expenses incurred by the successful party in the litigation.
Even an attorney and client recovery often
falls short.
[38]
Here, the first applicant abused the High Court’s
processes. It misled the Court. It launched the urgent
application
seeking relief for a problem that, to the knowledge of
its officers and its legal counsel, was there and then being fixed.
The High Court’s view that counsel was dishonest in taking
the interim order the next day was, regrettably, warranted.
And
we must not forget that Eskom was severely prejudiced. It was
dragged through unmeritorious litigation that it was at
pains to
avoid from the outset by doing its job – promptly and
responsively. It is impossible to say that the High
Court
failed to exercise an impeccable discretion in concluding that the
applicants’ conduct must be met with the severest
of rebukes in
the form of a punitive costs award. Nor is there any reason why
Eskom’s exposure to out-of-pocket legal
expenses should not be
minimised by an order on the attorney and client scale. There
is, therefore, no basis for this Court
to intervene in the High
Court’s costs order.
[39]
In
Quagliani
,
[60]
Sachs J lambasted the applicant’s lawyer for bringing a
last minute application to postpone this Court’s delivery
of judgment:
“It appears that at the very last moment in the prolonged
litigation, what had until then been commendable eagerness to serve
the best interests of his client, transformed itself into excess of
zeal. As I have pointed out, it is quite unacceptable
for a
legal representative to clutch at each and every straw, giving false
hope to a client, even if the motive is to do one’s
best on
behalf of the client. The failure of the attorney to
acknowledge the utter inappropriateness of the application is
most
unfortunate. It evinces a lapse of professional judgment
rather than firmness of purpose.”
[61]
[40]
These remarks are fitting. And the applicants’
lawyer would do well to heed them. In
Quagliani
,
attorney and client costs were awarded against the lawyer for conduct
far less improper than here.
[41]
Although
Biowatch
changed the costs landscape for
constitutional litigants, it gives no free pass to cost-free,
ill-considered, irresponsible constitutional
litigation. An
applicant seeking to vindicate constitutional rights must respect
court processes. The first applicant
has embroiled itself in
litigation since its inception in 2016. A more considered,
cautious approach would be helpful
all round.
Costs in this
Court
[42]
A costs award in constitutional litigation raises
constitutional issues. In the High Court, the applicants
sought to
invoke constitutional prescripts against Eskom, a state
party, though they were unsuccessful.
[43]
In an unprecedented departure from the general rule, the High
Court granted a punitive costs order against the applicants.
Although the applicants, in the manner in which they conducted their
litigation in the High Court, themselves authored the punitive
costs
order in that Court, their application in this Court was not
frivolous or vexatious, or manifestly inappropriate.
Biowatch
must therefore apply before this Court. Each party must pay its
own costs in this Court.
Order
[44]
The following order is made:
1. The application for leave to appeal is dismissed.
2. There is no order as to costs in this Court.
[1]
On 6 June 2016, under case number CCT 119/16
Limpopo Legal
Solutions v Vhembe District Municipality
[2017] ZACC 30
(
Limpopo
Legal Solutions II
), the first applicant sought leave to appeal
against the judgment and order, including the costs order, of the
High Court of
South Africa, Limpopo Local Division, Thohoyandou
(
Semenya AJ)
. This Court granted
leave to appeal against the High Court’s decision on standing
and costs and upheld the appeal.
On 12 July 2016,
under case number CCT 159/16
Limpopo Legal Solutions v Vhembe
District Municipality
[2017] ZACC 14
(
Limpopo Legal Solutions
I
), the first applicant urgently applied for leave to appeal
directly to this Court against the judgment and order, including the
punitive costs order, of the High Court of South Africa, Limpopo
Local Division, Thohoyandou (Lamminga AJ). This Court
upheld
the appeal against the costs order only.
On 6 April 2017,
under case number CCT 85/17
Limpopo Legal Solutions v Vhembe
District Municipality
, the first applicant sought leave to
appeal directly to this Court against the judgment and order of the
High Court of South
Africa, Limpopo Division, Polokwane, in terms of
which the High Court dismissed a recusal application brought by
the first
applicant with costs (Phatudi J). This Court
dismissed the application for leave to appeal with costs.
And recently, on 2
June 2017, under case number CCT 134/17
Limpopo Legal Solutions v
Vhembe District Municipality
, the first applicant once again
sought leave to appeal directly to this Court against an adverse
costs order awarded by the High
Court of South Africa, Limpopo Local
Division, Thohoyandou (
Mushasha AJ)
.
This Court dismissed the application for leave to appeal with no
costs order.
[2]
Rule 13(2) of the Rules of this Court provides: “Oral argument
shall not be allowed if directions to that effect are given
by the
Chief Justice.”
[3]
Limpopo Legal Solutions v Eskom Holdings Limited
[2017]
ZALMPPHC 1 (High Court judgment) at para 6.
[4]
Id.
[5]
Id at para 8.
[6]
Id at para 1.
[7]
Id at para 9.
[8]
Id at para 1.2.
[9]
Id.
[10]
Id at para 9.
[11]
Id at paras 11-2.
[12]
Id at para 12.
[13]
Id.
[14]
Id at para 13.
[15]
Id at para 14.
[16]
Id at paras 2 and 4.
[17]
Id at para 3.
[18]
Id at para 5.
[19]
Id at para 15.
[20]
Id at para 16.1.
[21]
Id.
[22]
Id.
[23]
Id at para 16.4.
[24]
Id at para 18.
[25]
Id.
[26]
Id.
[27]
Id at para 23.
[28]
Id at para 43.
[29]
Id at para 23.
[30]
Id at para 56. The High Court, at para 50, stated that counsel
for Eskom requested that costs be paid by the first applicant
and
its members jointly and severally, specifically excluding the second
applicant from any adverse costs order. Despite
this, the High
Court did not single out the first applicant in its order.
This Court will proceed on the basis that any
costs to be awarded
should be awarded against the first applicant only.
[31]
Section 24 of the Constitution provides:
“Everyone has the right—
(a) to an environment that is not harmful to their health or
wellbeing; and
(b) to have the environment protected, for the benefit of present
and future generations, through reasonable legislative and
other
measures that—
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural
resources while promoting justifiable economic and social
development.”
[32]
Section 7(2) of the Constitution provides: “The state must
respect, protect, promote and fulfil the rights in the Bill
of
Rights.”
[33]
Lawyers for Human Rights v Minister in the Presidency
[
2016]
ZACC 45
;
2017 (1) SA 645
(CC);
2017 (4) BCLR 445
(CC).
See
also
Limpopo Legal Solutions I
above n 1 at para 17 and
Trencon Construction (Pty) Ltd v Industrial Development
Corporation of South Africa Ltd
[2015] ZACC 22
;
2015 (5) SA 245
(CC);
2015 (10) BCLR 1199
(CC) (
Trencon
) at paras 83-5.
Khampepe J described the type of discretion exercised when awarding
costs as a “true” discretion
as opposed to a “loose”
discretion. The distinction is important in order to ascertain
the appropriate standard
of review by an appellate court.
[34]
Trencon
id at para 88 (quoting
National Coalition for Gay
and Lesbian Equality v Minister of Home Affairs
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at para 11). See
also
Psychological Society of South Africa v Qwelane
[2016]
ZACC 48
;
2017 (8) BCLR 1039
(CC) at para 42:
“Interference
on appeal in a lower court’s exercise of a discretion is
possible only if the discretion was not judicially
exercised.”
(Footnote omitted.)
[35]
Limpopo Legal Solutions I
above n 1 at para 19 (citing
Ferreira v Levin N.O.; Vryenhoek v Powell N.O.
[1995] ZACC
13
;
1996 (2) SA 621
(CC);
1996 (1) BCLR 1
(CC) at para 15 and
Tebeila Institute of Leadership, Education, Governance and
Training v Limpopo College of Nursing
[2015] ZACC 4; 2015 (4)
BCLR 396 (CC)).
[36]
Biowatch Trust v Registrar, Genetic Resources
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) (
Biowatch
)
.
[37]
Lawyers for Human Rights
above n 33 at para 15 (citing
Biowatch
id at para 24).
[38]
Id at para 17.
[39]
Biowatch
above n 36 at para 24. See also
Limpopo
Legal Solutions I
above n 1 at para 21.
[40]
Lawyers for Human Rights
above n 33 at para 18 (citing
Biowatch
above n 36 at paras 20, 23-4 and
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).
[41]
Biowatch
above n 36 at para 24.
[42]
Lawyers for Human Rights
above n 33 at paras 19-21.
[43]
Id at para 19.
[44]
Id at para 20. See also para 21, where the Court held:
“Ultimately the inquiry on the appropriateness of the
proceedings
requires a close and careful examination of all the
circumstances”.
[45]
High Court judgment above n 3 at para 43.
[46]
Limpopo Legal Solutions I
above n 1 at para 33.
[47]
Id at para 6.
[48]
Limpopo Legal Solutions II
above n 1 at para 16.
[49]
Id at para 17.
[50]
Limpopo Legal Solutions I
above n 1 at paras 27 and 33.
[51]
Limpopo Legal Solutions II
above n 1 at para 17.
[52]
High Court judgment above n 3 at paras 18-9, 23, 43, 47-55.
[53]
Biowatch
above n 36 at para 20.
[54]
Helen Suzman Foundation
above n 40 at para 36. The
Court continued:
“
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.’”
(Emphasis in original.)
[55]
Id.
[56]
Nel v
Waterberg Landbouwers Ko-operatiewe Vereeniging
1946
AD 597.
[57]
Id at 607.
[58]
Biowatch
above n 36 at para 20.
[59]
Nel
above n 56 at 607.
[60]
President of the Republic of South Africa v Quagliani
[2009]
ZACC 9
;
2009 (8) BCLR 785
(CC) (
Quagliani
).
[61]
Id at para 9. In this case, the Court awarded punitive costs
against Mr Quagliani because of the impropriety in seeking
the
postponement. Significantly, this judgment was handed down a
few months before
Biowatch
.