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

Ms Tatiana Malachi had previously been arrested and detained pursuant to an order granted under sections 30(1) and (3) of the Magistrates’ Courts Act 32 of 1944, at the instance of her employers, Cape Dance Academy International (Pty) Ltd and House of Rasputin Properties (Pty) Ltd. Those provisions were later challenged as unconstitutional. In the main judgment, the Constitutional Court dealt with the constitutionality of the impugned provisions. Following that judgment, the Court issued a provisional costs order directing the Minister for Justice and Constitutional Development and the employers each to pay half of Ms Malachi’s costs. The parties were invited to make representations on whether that provisional costs order should be made final. This judgment concerns only the allocation of costs.

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

This judgment reinforces the Biowatch principle that the state should ordinarily bear the costs of constitutional litigation where legislation is challenged, especially where private parties do not oppose the challenge. It underscores the constitutional responsibility of the executive to ensure that legislation complies with the Constitution and clarifies that private litigants who act reasonably and withdraw from unconstitutional proceedings should not be mulcted in costs.