Die Oranje Vrystaatse Vereniging vir Staatsondersteunde Skole and Another v The Premier of the Province of the Free State and Others

The applicants challenged a decision of the Orange Free State Provincial Administration that terminated bursaries and transport subsidies for pupils attending state-aided schools. In the Orange Free State Provincial Division, Lombard J declared the decision unconstitutional under the Interim Constitution but refused to grant consequential relief reinstating the bursaries and subsidies. The applicants sought leave to appeal to the Constitutional Court against the refusal of consequential relief. Before the appeal was heard, the applicants withdrew their application after the South African Schools Act 84 of 1996 abolished state-aided schools with effect from 1 January 1997, rendering the relief sought moot. The respondents then sought an order that the applicants pay the costs incurred in the Constitutional Court proceedings.

With regard to the application for leave to appeal, there was no order as to costs.

The case reinforces the Constitutional Court’s protective approach to costs in constitutional litigation, particularly where individuals or associations challenge government action in good faith. It underscores that constitutional litigants should not be deterred from approaching the courts by the fear of adverse costs orders, especially where disputes become moot due to legislative changes.