Biowatch costs principle should be embraced by lower courts: ConCourt

The Constitutional Court says lower courts should embrace the ruling it made eight years ago to protect people from paying hefty legal costs when fighting for their rights against state bodies.

The Biowatch judgment was made in 2009 and dealt with the proper approach that courts should adopt when making costs awards in constitutional litigation.

The Biowatch judgment means the general rule in constitutional litigation is that an unsuccessful litigant in proceedings against the state ought not to be ordered to pay the state’s costs.

On Tuesday‚ the court set aside the costs orders made by the Pietermaritzburg High Court and the Supreme Court of Appeal (SCA) against a student who lost her admission battle to study medicine with the University of KwaZulu-Natal.

The Constitutional Court agreed with the lower courts that Niekara Harrielall’s application must fail‚ as it bore no prospect of success.

However‚ the court said the High Court and the SCA should not have saddled her with the state’s legal costs.

“Although Biowatch was decided eight years ago‚ it seems that the other courts are yet to embrace its principle. This is apparent from the growing number of matters that come before this court‚ [in which] the issue of not applying Biowatch is raised. This is unfortunate‚” Justice Chris Jafta said in his judgment.

He said that in Biowatch‚ the Constitutional Court had laid down a general rule relating to costs in constitutional matters.

Jafta said that rule applied in every constitutional matter involving organs of state.

“The rule seeks to shield unsuccessful litigants from the obligation of paying costs to the state. The underlying principle is to prevent the chilling effect that adverse costs orders might have on litigants seeking to assert constitutional rights‚” he explained.

However‚ Jafta said the rule was not a licence for litigants to institute frivolous or vexatious proceedings against the state.

The operation of its shield is restricted to genuine constitutional matters.