State to pay legal costs if successfully sued

The state should pay costs in Constitutional litigation between itself and a private party, provided the private party is successful. This was recently confirmed by the Constitutional Court.
The ruling has strengthened the position of litigants such as farmers, companies or NGOs who want to challenge the state in constitutional matters, such as safety or the right to access information.
According to Deneys Reitz associate Brent Botha the principle will also apply in cases like the one Agri Free State is lodging against several government bodies over the collapse of law and order on the Lesotho border. “If they’re going to refer to provisions of the Constitution, then Agri Free State will be able to follow the general principle with regards to costs,” said Botha.
The constitutional Court’s Judge Albie Sachs explained the rationale behind the ruling. One factor is that the court doesn’t want litigants to be frightened off on the basis of costs. It also wants to encourage private litigants to approach it with constitutional matters.
The ruling follows the case of environmental NGO Biowatch. Biowatch approached the North Gauteng High Court in 2003, to ask that information held by three government bodies be made available to them. Monsanto South Africa opposed the application. The High Court granted eight of Biowatch’s 11 requests, but didn’t order the government bodies to pay costs because of the inept nature of Biowatch’s requests. Biowatch was also ordered to pay Monsanto’s legal costs.
However, the Constitutional Court has now set aside the costs ruling, with Judge Sachs saying the general rule for an award of costs in constitutional litigation between a private party and the state was that, if the private party was successful, it should have costs paid. If unsuccessful, each party should pay its own costs. The court also set aside the cost order against Biowatch for Monsanto’s legal costs. – Drieka Burger