In October 1995, the applicants brought an application before the Orange Free State Provincial Division seeking to set aside a decision by the Orange Free State Provincial Administration that terminated bursaries and transport subsidies for pupils attending state-aided schools. The applicants sought a declaratory order that the decision violated the interim Constitution, as well as consequential relief requiring reinstatement and payment of bursaries and subsidies from the beginning of the 1995 school year, and an interdict preventing future termination without proper consultation as required by section 247 of the interim Constitution and the White Paper on Education of 15 March 1995. Lombard J granted the declaratory order and costs to the applicants but refused the consequential relief. The applicants applied to the Constitutional Court for leave to appeal. On 23 December 1996, the applicants withdrew their application without tendering costs, explaining that the South African Schools Act 84 of 1996 had abolished state-aided schools effective 1 January 1997, rendering the relief sought moot. Negotiations on costs failed, and the respondents sought an order compelling the applicants to pay their costs.
No order as to costs with regard to the application for leave to appeal.
Litigants enforcing constitutional rights against government should not be discouraged by adverse costs orders where: (1) their complaints are not frivolous or vexatious; (2) they have not acted from improper motives; (3) the issues raised are of genuine importance; and (4) withdrawal is for legitimate reasons such as supervening mootness due to legislative changes. The principle that constitutional litigants should not face the risk of paying governmental adversaries' costs applies even where an application for leave to appeal is withdrawn before determination on the merits.
The Court emphasized that it was not suggesting the applicants were entitled to the relief granted by Lombard J, as the merits had not been argued before or considered by the Constitutional Court. Goldstone J noted that it would not be in the interests of justice to hear argument on issues that had become moot and were no longer of consequence to the parties or anyone else, particularly where the costs of such proceedings would greatly exceed the costs already incurred in the application for leave to appeal.
This case reinforces the Constitutional Court's approach to costs in constitutional litigation, particularly where litigants are enforcing constitutional rights against government. It establishes that withdrawal of proceedings due to changed circumstances (such as supervening legislation rendering the matter moot) will not automatically result in adverse costs orders, especially where the original complaint was legitimate and not frivolous. The judgment reflects the Court's concern not to create a chilling effect on constitutional litigation by imposing punitive costs on applicants who bring bona fide claims against the state. It forms part of a consistent line of authority discouraging costs orders that would deter the vindication of constitutional rights.