AS v Minister of Health and Others; BM and Another v Minister of Health and Others

Two consolidated applications (AS and BMM) challenged the constitutionality of section 303 of the Children's Act 38 of 2005 and Regulation 10(2)(a) of the Regulations relating to the Artificial Fertilization of Persons. Both sought to avoid the legislative requirement of securing a surrogate mother and a court-sanctioned surrogate motherhood agreement before commencing artificial fertilisation. The BMM applicants sought urgent relief, while the AS applicant sought to commence artificial fertilisation of her stored eggs without a surrogate. The applications were opposed by the Minister of Health and Director General. During the proceedings, the applicants failed to comply with multiple court orders regarding filing deadlines and remained silent despite the respondents' attempts at communication. The applicants eventually chose to follow the legislative surrogacy framework and withdrew their applications on 29 August 2023, days after an amicus curiae application by the Surrogacy Advisory Group (SAG) was filed. The only remaining issue for adjudication was costs. The applicants had not filed Rule 16A notices properly, failed to comply with court orders, and effectively abandoned their applications while pursuing the standard legislative process.

• Whether the Biowatch principle immunises the applicants from an adverse costs order in constitutional litigation against the state
• Whether the conduct of the applicants was frivolous, vexatious, or manifestly inappropriate such as to justify departure from the Biowatch principle
• Whether the applicants provided 'very sound reasons' why respondents should not be entitled to costs following withdrawal under Rule 41(1)
• Whether costs on an attorney-client scale were warranted given the conduct of the applicants' legal representatives
• Whether the Surrogacy Advisory Group's late amicus curiae application warranted censure

The applicants in both matters were ordered to pay the respondents' respective costs on an attorney-client scale, including the costs occasioned by the withdrawal of the applications, the costs of the Rule 41(1)(c) proceedings, and all postponements. Such costs to include the cost of two counsel where so employed.

The Biowatch principle that unsuccessful litigants in constitutional litigation against the state should not pay costs is not inflexible. Where a litigant's conduct is vexatious, frivolous, professionally unbecoming, or abusive of court processes, the court may depart from the general rule and award costs against the litigant. Additionally, where proceedings are withdrawn under Rule 41(1), 'very sound reasons' must exist for a respondent not to be entitled to costs, and it is only in exceptional circumstances that a party opposing withdrawn proceedings will not be entitled to all costs caused thereby.

The court noted that had the respondents sought a costs order de bonis propriis against the applicants' legal representatives, such an order would have been justified given the egregious conduct. The court also expressed strong disapproval of constitutional challenges being brought on an urgent basis, noting this practice has been frowned upon by the Supreme Court of Appeal. Regarding Rule 16A compliance, the court expressed agreement with academic commentary that if a party raising a constitutional issue fails to give the requisite notice, any other party may file such notice to avoid unnecessary postponements and costs. The court further observed that SAG's conduct regrettably amounted to an absolute disregard for the court and parties and was to be censured in the strongest terms.

This case clarifies the limits of the Biowatch principle on costs in constitutional litigation. It establishes that while litigants asserting constitutional rights against the state enjoy protection from adverse costs orders, this protection is lost where their conduct amounts to an abuse of court processes, including wilful non-compliance with court orders, failure to communicate, and effectively abandoning proceedings. The case also reinforces the importance of proper compliance with Rule 16A notice requirements and the principle that constitutional challenges should not be brought on an urgent basis.