Rica Piggery and Abattoir (Pty) Ltd v Phatsoane Moses Dirello

This matter arose from an automatic review in terms of section 19(3) of the Extension of Security of Tenure Act 62 of 1997 (ESTA). The Magistrate at Koster granted an eviction order against the respondent on 8 February 2010, including a costs order. The respondent had resided on the farm for 16 years and was dismissed from employment. He resisted the eviction application and was legally represented throughout the proceedings. The respondent currently works part-time on a neighbouring farm. The eviction order required the respondent to vacate within 30 days.

• Whether a costs order against the respondent was appropriate in ESTA eviction proceedings
• Whether the practice of the Land Claims Court regarding costs orders in social interest litigation should apply
• Whether the general rule that costs follow the result should be departed from in this case
• Whether considerations of equity and fairness justified the granting of a costs order against the respondent
• Whether the procedural requirements of sections 9(2)(a), 9(2)(b), 9(2)(c), 9(2)(d), 9(3), 10 and 12 of ESTA were complied with

The eviction order was confirmed with the following modifications: (1) The respondent was to vacate the premises by 12 July 2010 (if he had not yet done so) in terms of section 12(1)(a) of ESTA; (2) If the respondent had not vacated by 12 July 2010, the eviction order could be carried out on 19 July 2010 in terms of section 12(1)(b); (3) No order as to costs was made.

In ESTA eviction proceedings before the Land Claims Court, costs orders should only be made in exceptional circumstances where there has been impropriety in the manner in which litigation has been undertaken, or where the conduct of a party has been vexatious or frivolous. The general rule that costs follow the result must yield to considerations of equity and fairness in land-related social interest litigation. An occupier who resists an eviction application in good faith to protect what they believe to be their legitimate interests should not be penalized with a costs order, even if unsuccessful. Rule 61(1) of the Land Claims Court Rules specifically permits the court not to award costs against an unsuccessful party who has put a case in good faith to protect or advance legitimate interests.

The court made several observations about costs in constitutional and public interest litigation more broadly. It noted that the Constitutional Court has held that litigants should be accorded equal status when asserting their rights in court, regardless of whether they are rich or poor, advantaged or disadvantaged - what matters is whether they are asserting rights protected by the Constitution. The court emphasized that litigants should not be treated disadvantageously simply because they are pursuing commercial interests with deep pockets, nor should they be favored because they are fighting for the poor and lack funds. The court also observed that rural black people have historically been prevented from accumulating substantial wealth due to discriminatory laws, and the costs of litigation could result in loss of what few capital assets they have managed to accumulate. The court noted that the respondent should not be punished with a costs order based on ill-advice from his legal representative, and took into account his current part-time employment status suggesting limited financial means.

This case reinforces the established practice of the Land Claims Court that costs orders in ESTA eviction proceedings and land-related social interest litigation should only be granted in special circumstances, such as where litigation is frivolous, vexatious, or there has been impropriety. It confirms that the general rule that costs follow the result does not automatically apply in such cases. The judgment emphasizes the importance of equity and fairness in costs determinations, particularly where occupiers have resided on land for extended periods and are asserting rights in good faith under constitutional and statutory protections. It demonstrates the Land Claims Court's commitment to not allowing costs orders to have a chilling effect on persons seeking to vindicate their rights under ESTA and the Constitution, while maintaining judicial discretion to award costs where conduct warrants censure.