Lawyers for Human Rights v Minister in the Presidency and Others

In 2015, during a period of national turmoil involving attacks on non-South African nationals, police and army forces conducted large-scale search and arrest operations under section 13(7) of the South African Police Service Act, styled as "Operation Fiela-Reclaim". On 8 May 2015, in Johannesburg, warrantless search and arrest operations were carried out in private homes in the early hours, resulting in numerous arrests. Lawyers for Human Rights (LHR), representing most of those arrested, challenged the constitutionality of the Operation. However, LHR only launched its urgent application in the High Court six weeks after the Operation had been completed, on 23 June 2015, against eight state respondents. LHR asserted that the implementation of the Operation violated the Constitution because it was inconsistent with various legislation. The respondents were given barely a day to file answering papers.

• Whether costs should be awarded against an unsuccessful litigant seeking to enforce constitutional rights
• Whether the Biowatch principles regarding costs in constitutional litigation should apply
• Whether the High Court properly exercised its discretion in awarding costs
• Whether bringing the application on an urgent basis six weeks after the events was manifestly inappropriate
• Whether the award of costs in a constitutional matter raises a constitutional issue giving this Court jurisdiction

The application for leave to appeal against the costs order was dismissed. No costs order was made against LHR in the Constitutional Court.

The binding principles established are: (1) The award of costs in a constitutional matter raises a constitutional issue, giving the Constitutional Court jurisdiction. (2) The Biowatch principle that costs should generally not be awarded against unsuccessful litigants in genuine constitutional cases against state parties applies not only to merits but also to procedural and ancillary issues. (3) However, courts retain discretion to award costs in constitutional litigation where the manner of pursuing proceedings is manifestly inappropriate, frivolous, vexatious, or constitutes an abuse of process. (4) Bringing an urgent application six weeks after the impugned events have concluded, targeting a completed operation, and affording respondents barely a day to respond can constitute manifestly inappropriate conduct warranting costs. (5) A worthy cause or motive does not immunize a litigant from a judicially-considered, discretionary adverse costs order. (6) Appellate courts will not interfere with a costs order unless the lower court exercised its discretion unjudicially or on a wrong principle.

The Court observed that the issues LHR raised before the High Court may in other circumstances have protected them if they lost the litigation, suggesting that had the application been brought timeously and procedurally properly, the Biowatch protection would likely have applied. The Court also noted that the costs order in this case is not likely to have a "chilling effect" on future litigation because the High Court's concerns about the extreme delay and unreasonable exactions on respondents cannot be regarded as unwarranted. The Court emphasized that "the Biowatch principles should not be abused to avoid ordinary court process," indicating concern that litigants might attempt to use constitutional framing to bypass normal procedural requirements. The Court also made the general observation that what constitutes "abuse of process" requires determination based on the circumstances of each case and involves a "close and careful examination of all the circumstances."

This case clarifies the application of the Biowatch principles regarding costs in constitutional litigation. It establishes that while there is a general rule against awarding costs against unsuccessful private litigants vindicating constitutional rights against the state, this protection extends to procedural choices made in pursuit of those rights. However, the judgment emphasizes that Biowatch does not create a shield for abuse of court process or manifestly inappropriate litigation conduct. Courts retain discretion to award costs where proceedings are pursued in an improper manner, even if the substantive issues raise genuine constitutional concerns. The case demonstrates that extreme delay in bringing urgent applications and unreasonable demands on respondents' time to respond can constitute manifestly inappropriate conduct warranting costs orders. It reinforces that courts must balance encouraging constitutional assertiveness against protecting their processes from abuse, and that appellate courts will not interfere with costs discretions properly exercised by lower courts.