Mqabukeni Chonco and 383 Others v President of the Republic of South Africa

This matter was a sequel to Chonco 1 decided by the Constitutional Court on 30 September 2009. The applicants, 384 pardon applicants, sought an order declaring that the President had unreasonably delayed in considering and deciding their applications for presidential pardon under section 84(2)(j) of the Constitution filed with the Department of Justice and Constitutional Development in 2003. They also sought an order directing the President to decide their applications within one month. On the hearing day, the President filed a supplementary affidavit stating he had considered all 384 applications: 230 were rejected, 146 were deferred pending the outcome of Albutt litigation (where a High Court interdict prevented him from granting pardons), and 8 related applications were also deferred. The applicants' counsel indicated they would no longer persist in seeking relief as it had been substantially obtained. The parties only wished to argue costs. The applicants originally sought attorney-and-own-client costs but reduced their claim to ordinary costs. The applicants filed their application on 28 October 2009, nine days after deposing their affidavit following the Chonco 1 judgment.

• What is a just and equitable order of costs in circumstances where the main relief sought has been rendered academic by the respondent's actions?
• Whether it was reasonable for applicants to institute litigation without first making inquiries of the President following the Chonco 1 judgment
• Whether it was reasonable for applicants to persist with litigation after the President gave an undertaking to finalize applications
• The relevance of a previous costs order in Chonco 1 relating to the same delay

No order was made on the application. There was no order as to costs. No order was made regarding costs for the application for condonation as the applicants tendered costs but the President declined them.

The binding legal principles established are: (1) In constitutional litigation, costs are discretionary and must be exercised judicially considering all relevant circumstances including conduct of parties, nature of proceedings, and how the costs order will advance or hinder constitutional justice. (2) The proper administration of justice demands that litigants exercise precaution and attempt to resolve disputes through communication before embarking upon litigation in the Constitutional Court, even where a party has previously been dilatory. (3) It is unreasonable to institute proceedings without putting the respondent on terms first, particularly shortly after a related judgment where the respondent requires time to obtain legal advice and respond. (4) Where a previous costs order has already indemnified applicants and censured the same dilatory conduct that is the subject of subsequent proceedings, it is not just and equitable to grant further costs in respect of the same delay.

The Court observed that while it would not wish to deprive litigants of using litigation as a "bargaining chip" to vindicate their rights, this must be balanced against the need for proper administration of justice. The Court noted that had the applicants written a letter to the President putting him on terms, he would probably have given the same response contained in his answering papers. The Court acknowledged the Presidency's previous tardiness and unresponsiveness gave some credence to the applicants' argument about needing litigation as leverage, but this could not justify their precipitate conduct. The Court suggested that at the very least, after the President's answering affidavit with his undertaking was filed, the applicants could have sought a postponement sine die to assess if the President would follow through on his undertaking.

This case is significant in South African jurisprudence for establishing principles regarding costs in constitutional litigation, particularly in sequel proceedings. It emphasizes the importance of exhausting reasonable alternatives before approaching the Constitutional Court, even in circumstances where a party has historically been dilatory. The judgment balances the need to ensure constitutional rights are vindicated with the proper administration of justice, requiring litigants to exercise caution and attempt communication before resorting to litigation. It also clarifies that where a previous costs order has already indemnified and censured dilatory conduct, further costs orders for the same delay are not warranted. The case demonstrates the Constitutional Court's discretion in costs orders and the factors considered in constitutional litigation, including whether litigation is precipitate and the impact of costs orders on constitutional justice.