Tebeila Institute of Leadership, Education, Governance, and Training v Limpopo College of Nursing and Another

The applicant, a non-governmental educational institution in a rural area of Limpopo Province, brought a constitutional challenge to the admissions policy of the first respondent, Limpopo College of Nursing. The policy required aspiring nursing students to have obtained a school-leaving certificate "not more than three years ago". The applicant complained that this irrationally and unfairly excluded many worthy prospective students who had left school more than three years previously. The High Court (Makgoba J) agreed with the applicant and declared the admissions policy constitutionally invalid under section 9(1) and section 9(3) of the Bill of Rights. However, despite the applicant's success, the High Court ordered that each party pay its own costs, stating that "the case before me does not warrant an award of costs against the unsuccessful party in that the issues raised in this matter are of a constitutional nature."

• Whether the High Court erred in depriving the successful applicant of its costs in constitutional litigation against state respondents
• Whether the costs order constituted a misdirection in the exercise of judicial discretion
• Whether the Constitutional Court should intervene to correct a costs order despite the general principle that appeals on costs alone are rarely entertained
• The proper application of the Biowatch principle regarding costs in constitutional litigation between private parties and the state

1. Leave to appeal is granted. 2. The appeal succeeds with costs. 3. The costs order of the High Court is set aside. 4. The respondents must pay the applicant's costs in the High Court.

The binding legal principles established are: (1) In constitutional litigation between a private party and the state, if the private party is successful, it should have its costs paid by the state (per Biowatch); (2) A court that departs from this general rule must set out reasons that are carefully articulated and convincing; (3) Failure to provide such reasons and inadvertent misapplication of the Biowatch principle constitutes a misdirection in the exercise of judicial discretion; (4) The rationale for awarding costs to successful constitutional litigants includes: (a) diminishing the chilling effect of adverse costs orders on parties seeking to assert constitutional rights, (b) recognizing that constitutional litigation benefits not only the immediate parties but enriches constitutional jurisprudence generally, and (c) placing responsibility for ensuring constitutional compliance at the correct door, namely with the state; (5) An appellate court may interfere with the exercise of discretion where it is shown that the discretion was exercised based on incorrect principles of law; (6) The Constitutional Court may in exceptional circumstances intervene on costs orders alone where fundamental principles of constitutional litigation are at stake, particularly where it is a first instance of such error and provides an opportunity to clarify important legal principles.

The Court made several observations: (1) It noted that few appellate courts countenance appeals on costs alone, and that section 16 of the Superior Courts Act 10 of 2013 provides that appeals may be dismissed if the decision sought will have no practical effect, and that save under exceptional circumstances, this must be determined without reference to costs. This means appeals on costs alone are allowed very rarely. (2) The Court acknowledged its reluctance to correct the mistake and carefully considered dismissing the application to send the applicant back to the High Court to seek leave to appeal to the Full Court, but noted this would likely be a dead end given that appeals on costs alone are not generally countenanced. (3) The Court observed that the applicant appears to have conducted its case impeccably and there was no lapse, inadvertent, procedural or technical, that could have justified depriving it of costs. (4) The Court noted that those on whose behalf the challenge was brought - students in rural areas - are entitled to particular respect for their social and constitutional entitlements. (5) The Court emphasized that it had been nearly six years since Biowatch was decided, and this case afforded a useful opportunity to restate those principles and emphasize the rationale behind them, serving as a reminder to judicial officers about the proper approach to costs orders in constitutional litigation.

This case is significant in South African constitutional law as it reinforces and clarifies the Biowatch principle regarding costs in constitutional litigation. It emphasizes that successful private litigants who vindicate constitutional rights against state institutions are entitled to their costs unless there are carefully articulated and convincing reasons to deprive them of those costs. The judgment serves as an important reminder to judicial officers about the proper application of costs principles in constitutional matters and addresses concerns about the chilling effect that denial of costs could have on constitutional litigation. It affirms that the purpose of the Biowatch rule is to ensure that meritorious constitutional claims are not deterred by fear of financial consequences, and that this protection extends to successful litigants as well. The case also establishes that in exceptional circumstances, particularly where fundamental principles of constitutional litigation are at stake and where it is the first instance of such an error, the Constitutional Court will intervene even on costs orders alone. This is particularly important in the context of access to education and the protection of rights of persons in rural areas.