AfriForum NPC v Ngwathe Local Municipality and Others

AfriForum NPC, a civil organisation promoting constitutional and human rights, instituted an urgent application on behalf of residents of Ngwathe Local Municipality who were supplied with unsafe, contaminated drinking water. Laboratory test results showed unacceptably high levels of bacteria coliforms and E.coli in tap water, contravening SANS 241:2015 standards and rendering the water unfit for human consumption, causing illness among residents. After unsuccessful attempts to resolve the matter with the municipalities, AfriForum sought orders compelling the local and district municipalities to provide safe potable water and compelling the district municipality and Minister to provide oversight and support. The local municipality opposed the application on grounds that the water quality report was not authenticated and that its own testing showed compliance. The court of first instance (PJ Loubser J) removed the matter from the urgent roll for want of urgency and ordered AfriForum to pay wasted costs. AfriForum was granted leave to appeal on costs only. The Full Court set aside the costs order and replaced it with an order that each party pay their own costs, both in respect of the original application and the appeal. AfriForum then appealed to the Supreme Court of Appeal with special leave on the costs award only.

• Whether the Full Court exercised its discretion on costs judicially when it ordered each party to pay their own costs despite finding AfriForum was the successful party
• Whether the Full Court properly applied the general principle that costs follow the result
• Whether the Full Court properly applied the Biowatch principle that if government loses constitutional litigation against a private party asserting constitutional rights, government should pay the private party's costs
• What circumstances justify departure from the result principle and the Biowatch principle in costs awards
• Whether the reasoning that the respondent 'could not be faulted for opposing the application' constitutes a proper basis for departing from established costs principles

The appeal was upheld. The first and second respondents were ordered to pay the appellant's costs of the appeal before the Supreme Court of Appeal. Paragraph 2 of the Full Court's order was set aside and replaced with: 'The first and second respondents are to pay the appellant's costs of the appeal.' The costs award was limited to costs of one counsel only.

In constitutional litigation between government and a private party seeking to assert constitutional rights, where the private party is successful and has acted bona fide without engaging in frivolous, vexatious, or manifestly inappropriate litigation, the Biowatch principle must be applied unless there are compelling and proper grounds for departure. The fact that government 'could not be faulted' for opposing the proceedings does not constitute a lawful or principled basis for departing from the Biowatch principle or the general result principle that costs follow the result. The application of the Biowatch principle turns on: (1) the nature of the dispute (whether it genuinely raises constitutional issues); (2) the bona fides of the litigant; and (3) the manner in which litigation is conducted - not on whether the state could be faulted for its opposition. A court fails to exercise its discretion on costs judicially where it correctly identifies applicable principles but then departs from them without proper justification. An appellate court may interfere with a discretionary costs award where the lower court failed to exercise discretion judicially, was influenced by wrong principles, misdirected itself on facts, or reached a decision that could not reasonably have been made by a court properly directing itself to relevant facts and principles.

The Court made observations on the award of costs for two counsel, noting that such awards should be refused where matters lack factual or legal complexity, and that it would be unfair to saddle municipalities with costs of two counsel where one would have been adequate, particularly where the litigant elected to litigate 'on such a luxurious scale' unnecessarily. The Court also provided helpful guidance on exceptions to the Biowatch principle, noting that it does not apply to: vexatious or frivolous litigation; manifestly inappropriate litigation; ill-considered or irresponsible litigation; or cases involving unacceptable litigant behavior or misconduct. The Court cited with approval the principle from S S v V V S that the Biowatch principle 'gives no free pass to cost-free, ill-considered, irresponsible litigation' and that applicants 'seeking to vindicate constitutional rights must respect court processes.' The Court also emphasized that while the result principle is the default position, it does not operate inflexibly, and courts retain discretion to depart from it where circumstances warrant, provided such departure is exercised judicially with compelling justification.

This judgment reinforces and clarifies the application of fundamental costs principles in South African constitutional litigation. It emphasizes that the Biowatch principle - requiring government to pay costs when it loses constitutional litigation against private parties asserting constitutional rights - must be applied unless there are compelling grounds for departure. The judgment confirms that mere fact that government 'could not be faulted' for opposing proceedings does not constitute such grounds. It establishes that exceptions to the Biowatch principle are limited to circumstances involving frivolous, vexatious, or manifestly inappropriate litigation, or misconduct/impropriety by litigants. The case is significant for protecting access to justice by ensuring that civil society organisations and private parties are not financially deterred from bringing legitimate constitutional challenges against government. It provides important guidance on when appellate courts may interfere with discretionary costs awards, namely where the lower court failed to exercise discretion judicially, was influenced by wrong principles, misdirected itself on facts, or reached an unreasonable decision. The judgment also provides guidance on awards of costs for multiple counsel, establishing that such costs should not be awarded where matters lack factual or legal complexity.