Malachi v Cape Dance Academy International (Pty) Ltd and Others

Ms Tatiana Malachi was arrested and detained at Pollsmoor Correctional Centre pursuant to an order obtained by her employers (Cape Dance Academy International (Pty) Ltd and House of Rasputin Properties (Pty) Ltd) in the Magistrates' Court under section 30(1) and (3) of the Magistrates' Courts Act 32 of 1944. Once the employers became aware that these provisions may be unconstitutional, they agreed to Ms Malachi's immediate release. The employers did not oppose her application to have the impugned provisions declared unconstitutional, and agreed with her that she would not seek costs against them. The main judgment was delivered on 24 August 2010, in which the Constitutional Court made a provisional costs order directing the Minister for Justice and Constitutional Development and the employers to each pay half of Ms Malachi's costs. The parties were given an opportunity to make representations on whether this order was just and equitable.

• Whether it was just and equitable for the employers to be ordered to pay any portion of Ms Malachi's costs
• Whether the Minister for Justice and Constitutional Development should bear the full costs of the constitutional challenge
• The application of the Biowatch principle regarding costs in constitutional litigation involving challenges to statutes

1. The application for condonation for the late filing of the employers' representations on the provisional order for costs was granted; 2. The provisional order for costs was discharged; and 3. The Minister for Justice and Constitutional Development was ordered to pay Ms Malachi's costs in the Constitutional Court.

Where employers utilize statutory provisions to obtain an order for arrest and detention, but upon becoming aware of potential constitutional invalidity agree to the release of the affected person, do not oppose the constitutional challenge, and have an agreement regarding costs, it is not just and equitable to order them to pay costs of the constitutional litigation. The Minister responsible for the relevant statute has a constitutional duty to ensure provisions within his functional area comply with the Constitution, and failure to amend or repeal unconstitutional provisions for an extended period justifies requiring the Minister to bear the full costs of a constitutional challenge. In constitutional litigation challenging the validity of statutes, the true contest is between the applicant and the state, not between the applicant and private parties who merely utilized the unconstitutional provisions without defending their validity.

The Court observed that the Minister had failed to amend or repeal the impugned provisions for 15 years into the new constitutional dispensation, suggesting this was an unacceptable delay in fulfilling constitutional obligations. The Court also implicitly endorsed the principle that government should bear costs of constitutional challenges to legislation as articulated in Biowatch Trust v Registrar, Genetic Resources, though this was a supplementary judgment dealing only with costs rather than the substantive constitutional issues which had been determined in the main judgment of 24 August 2010.

This judgment clarifies the principles governing costs awards in constitutional litigation, particularly where private parties utilize unconstitutional statutory provisions but do not defend their constitutionality. It reinforces the principle established in Biowatch that government should bear costs of constitutional challenges to statutes, and emphasizes the Minister's constitutional duty to ensure statutes within his functional area comply with the Constitution. The case demonstrates the Court's discretion to reconsider provisional costs orders and its application of the "just and equitable" standard in determining costs. It also illustrates that initiating proceedings under later-invalidated provisions does not automatically result in adverse costs orders where the party subsequently cooperates with the constitutional challenge.