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

The applicants, Mr Mqabukeni Chonco and 383 others, applied for presidential pardons under section 84(2)(j) of the Constitution in 2003. After years of delay, related litigation culminated in Minister for Justice and Constitutional Development v Chonco and Others (Chonco 1), where the Constitutional Court criticised the delay. Following that judgment, the applicants sought direct access to the Constitutional Court, alleging that the President had unreasonably delayed deciding their pardon applications and seeking an order compelling a decision within one month. On the day of the hearing, the President filed a supplementary affidavit stating that all applications had been considered: 230 were refused, while decisions on 146 applications (and a related eight) were deferred due to a High Court interdict and pending Constitutional Court proceedings in Albutt. As the substantive relief was effectively obtained, the applicants abandoned the merits and pursued only the issue of costs.

No order was made on the application, and no order as to costs was granted. Each party was left to bear its own costs.

The case clarifies the Constitutional Court’s approach to costs in constitutional litigation, particularly where proceedings become moot and where related prior litigation has already resulted in a costs order. It underscores that even in constitutional matters, litigants must act reasonably and avoid unnecessary or premature litigation. The judgment reinforces the Biowatch principles while illustrating limits on cost recovery where conduct is found to be precipitate.