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

The applicant, a non-governmental educational institution operating in a rural area of Limpopo Province, brought a constitutional challenge against the admissions policy of the Limpopo College of Nursing. The policy required applicants to have obtained a school-leaving certificate not more than three years prior to application. The applicant contended that this requirement irrationally and unfairly excluded otherwise deserving prospective nursing students, particularly those from rural areas. The High Court declared the policy unconstitutional under sections 9(1) and 9(3) of the Constitution but ordered each party to pay its own costs, despite the applicant’s success. The applicant then approached the Constitutional Court solely to challenge the adverse costs order.

Leave to appeal was granted. The appeal succeeded with costs. The High Court’s order that each party pay its own costs was set aside, and the respondents were ordered to pay the applicant’s costs in the High Court.

The case reaffirms and strengthens the Biowatch principle, emphasizing that successful constitutional litigants should ordinarily be awarded costs when litigating against the state. It underscores the chilling effect that improper costs orders can have on constitutional litigation and clarifies that courts must give clear, convincing reasons for any departure from the general rule. The judgment also illustrates the Constitutional Court’s willingness, in exceptional circumstances, to intervene in costs-only appeals to protect access to justice.