Jack Coetzee v National Commissioner of Police and Minister of Safety and Security

Mr Jack Coetzee was arrested by Tshwane Metro Police on 15 November 2009 after allegedly failing to stop at a roadblock and driving through a red traffic light. He suspected the officers were not genuine and refused to stop. He was detained at Pretoria West Police Station and charged with failing to comply with a traffic officer's instruction, crimen injuria, and driving an unlicensed and unregistered motor vehicle. His attorney attempted to contact the investigating officer to request bail but was unsuccessful. On the same day, Coetzee's attorney launched an urgent bail application in the North Gauteng High Court. The High Court ordered Coetzee's release and required respondents to provide reasons on a return day why he was not granted bail and why certain officers should not be held personally liable for costs. On the return day, an investigating officer testified he was only assigned the case after Coetzee's release. The High Court subsequently found the arrest and detention unlawful and ordered certain police officers to pay costs de bonis propriis on an attorney-own client scale. The Supreme Court of Appeal set aside this order and dismissed the application with costs.

• Whether the Constitutional Court had jurisdiction to hear an appeal concerning a costs order in criminal bail proceedings
• Whether the costs order raised a constitutional matter or an issue connected with a decision on a constitutional matter in terms of section 167(3)(b) of the Constitution
• Whether costs orders in criminal proceedings are competent
• Whether the interests of justice warranted granting leave to appeal

1. Condonation is granted. 2. Leave to appeal is refused. 3. There is no order as to costs.

A costs order arising from criminal bail proceedings does not constitute a constitutional matter or an issue connected with a decision on a constitutional matter under section 167(3)(b) of the Constitution unless the costs order is intricately interwoven with a genuine constitutional challenge. The Constitutional Court will not accept jurisdiction merely because a party labels litigation as constitutional or makes specious references to constitutional provisions. The nature and character of the underlying proceedings must be examined. Where the original application was a criminal bail application and no substantive constitutional challenge to arrest or detention was properly raised, a subsequent costs order does not raise constitutional issues warranting Constitutional Court jurisdiction. The issues must be genuine, substantive, and truly raise constitutional considerations relevant to adjudication.

The Court observed that costs orders in criminal proceedings, where the matter relates directly to criminal proceedings instituted by the state, are generally not competent. However, the Court noted that costs orders in criminal proceedings are not always incompetent - for example, where the state brings an unsuccessful appeal, the court may order the state to pay the respondent's costs in opposing the appeal. The Court also noted that while the level of crime in South Africa should not justify departure from democratic and constitutional principles safeguarding the population from excessive use of power, the character of litigation and manner of costs awards must be properly examined. The Court emphasized that a challenge to findings on factual incorrectness is neither a constitutional matter nor an issue connected with a decision on a constitutional matter.

This case clarifies the Constitutional Court's jurisdiction in relation to costs orders in criminal proceedings. It establishes that not every costs order can be dressed up as a constitutional matter simply by invoking constitutional provisions. The case emphasizes the importance of properly characterizing the nature of proceedings and demonstrates that costs orders arising from ordinary criminal bail proceedings do not automatically raise constitutional issues warranting Constitutional Court intervention. The judgment reinforces the principle that costs orders in criminal proceedings where the state institutes proceedings are generally incompetent, and that attempts to characterize such matters as constitutional must be genuine and substantive. It provides guidance on when a costs order may be considered 'connected with a decision on a constitutional matter' under section 167(3)(b) of the Constitution.