Helen Suzman Foundation v The Speaker of the National Assembly and Others

The Helen Suzman Foundation (HSF) brought an urgent application seeking declaratory relief against the Government, alleging that Parliament failed to fulfil its constitutional obligations under sections 42(3), 44(1), 55(1), and 68 of the Constitution to provide a legislative response specific to the Covid-19 pandemic. The HSF challenged the government's continued reliance on the Disaster Management Act 57 of 2002 (DMA) as the source of authority for managing the pandemic, contending that the government was deliberately evading the open, accountable and participatory Parliamentary lawmaking processes by failing to enact specific legislation. The full court of the Gauteng Division dismissed the application, finding no obligation on Parliament and the Executive to pass specific Covid-19 legislation. Each party was ordered to pay its own costs based on the Biowatch principle, and no costs order was made when refusing leave to appeal. The HSF then petitioned the Supreme Court of Appeal for leave to appeal. Two judges refused the petition and awarded costs against the HSF. The HSF then brought an application for reconsideration of the costs order under section 17(2)(f) of the Superior Courts Act 10 of 2013.

• Whether exceptional circumstances existed to justify reconsideration of a costs order made in refusing a petition for leave to appeal under section 17(2)(f) of the Superior Courts Act
• Whether the Biowatch principle should have been applied to shield the HSF from costs in the petition for leave to appeal
• Whether the HSF's conduct in pursuing the petition after the judgment in President, RSA v Women's Legal Centre Trust justified departure from the Biowatch principle
• Whether section 17(2)(f) envisages reconsideration of costs orders made on petitions for leave to appeal

The reconsideration application was dismissed with costs.

The binding legal principles established are: (1) Section 17(2)(f) of the Superior Courts Act permits reconsideration only in exceptional circumstances where grave injustice would result if the order stood, and is not a mechanism for disappointed litigants to seek a second opportunity for orders already refused. (2) The Biowatch principle, which ordinarily shields unsuccessful private litigants from adverse costs orders in constitutional litigation against the State, does not abolish judicial discretion in awarding costs. (3) Courts may properly depart from the Biowatch principle where litigation is unreasonable, including where an applicant proceeds with litigation notwithstanding binding precedent that conclusively determines the issues raised. (4) A costs award will not be reconsidered unless there is evidence that relevant principles were ignored or that discretion was exercised improperly.

Mabindla-Boqwana JA made non-binding observations questioning whether section 17(2)(f) truly envisages reconsideration applications directed solely at costs orders made in petitions for leave to appeal, where the applicant does not challenge the refusal of leave to appeal itself. She suggested that the purpose of section 17(2)(f) is to reconsider whether there were reasonable prospects of success on appeal, and that when an applicant no longer pursues that question, the matter loses the character contemplated for referral under the section. She suggested such a costs order might properly be a matter for appeal to the Constitutional Court rather than reconsideration. However, as this was not raised by the parties, she made no finding on the issue. The Court also observed that the Biowatch principle must be considered holistically and that courts control their processes with flexibility, considering the character of litigation and litigant conduct even where constitutional rights are asserted.

This case clarifies the limited scope of reconsideration applications under section 17(2)(f) of the Superior Courts Act. It confirms that such applications are only available in exceptional circumstances where grave injustice would result, and are not intended to give disappointed litigants a second chance at orders already refused. The judgment also clarifies the application of the Biowatch principle in costs awards, confirming that courts retain discretion in awarding costs and that the Biowatch principle does not provide a licence to litigate with impunity against the State. The judgment demonstrates that courts will consider whether litigation was reasonable in light of binding precedent when determining costs, even in constitutional litigation. The concurring judgment raises important questions about the scope of section 17(2)(f) and whether it extends to reconsideration of ancillary orders such as costs where the main decision (refusal of leave to appeal) is not challenged.