Lawyers for Human Rights v Minister in the Presidency and Others

In 2015, during Operation Fiela-Reclaim, the South African Police Service and the South African National Defence Force conducted warrantless search and arrest operations in various communities, including raids on private homes in Johannesburg. Lawyers for Human Rights (LHR), representing many of those arrested, launched an urgent application in the Gauteng Division of the High Court six weeks after the raids had been completed. LHR challenged the constitutionality of the manner in which the operation was conducted, alleging violations of constitutional rights and inconsistency with several statutes. The High Court struck the matter from the urgent roll as gravely inappropriate due to the delay and absence of evidence of imminent future raids, and awarded costs against LHR. LHR unsuccessfully sought leave to appeal the costs order in the High Court and Supreme Court of Appeal, and then applied to the Constitutional Court, appealing only against the adverse costs order.

The application for leave to appeal against the High Court’s costs order was dismissed. No costs order was made against Lawyers for Human Rights in the Constitutional Court.

The case clarifies the limits of the Biowatch principle on costs in constitutional litigation. It confirms that while constitutional litigants are generally protected from adverse costs orders, this protection does not extend to cases where proceedings are conducted in a manifestly inappropriate manner or constitute an abuse of court process. The judgment underscores the High Court’s discretion in costs matters and balances encouragement of constitutional litigation with the need to protect judicial process from misuse.