AfriForum NPC v Ngwathe Local Municipality and Others

Residents of the Ngwathe Local Municipality experienced ongoing supply of unsafe, foul-smelling drinking water that allegedly caused illness. AfriForum NPC, a civil society organisation, commissioned accredited laboratory tests which revealed excessive levels of coliforms and E. coli in contravention of SANS 241:2015 potable water standards. After unsuccessful attempts to resolve the matter with the local and district municipalities, AfriForum launched an urgent application in the Free State High Court seeking to compel the municipalities and the Minister of Water and Sanitation to fulfil their constitutional and statutory duties to provide safe drinking water, including by means of a structural interdict. The High Court removed the matter from the urgent roll and ordered AfriForum to pay wasted costs. AfriForum appealed only the costs order. The Full Court set aside the punitive costs order but directed that each party pay its own costs. AfriForum then appealed to the Supreme Court of Appeal, challenging the Full Court’s departure from the general costs rule and the Biowatch principle.

The appeal was upheld. Paragraph 2 of the Full Court’s order was set aside and replaced with an order that the first and second respondents (the Ngwathe Local Municipality and its Acting Municipal Manager) pay AfriForum’s costs of the appeal. Costs were awarded on the basis of one counsel only.

The judgment reinforces the proper application of the Biowatch principle and clarifies that a court may not depart from it merely because the state cannot be blamed for opposing litigation. It affirms that departures from established costs principles require compelling and principled justification. The case strengthens protection for constitutional litigants seeking to vindicate socio-economic rights against the state and underscores judicial accountability in the exercise of discretion on costs.