The Roodeberg Residents Association NPC, incorporated on 23 August 2023 with three directors who are property owners in Ward 1, filed an urgent application on 12 September 2023 seeking a mandamus directing Drakenstein Municipality to deliver updated studies and enforce conditions of approval related to a subdivision and site development by CeciliaStraat Ontwikkeling (Pty) Ltd. The applicant also sought an interdict restraining continuation of the development. Before the applicant's formation, the directors (and other residents) had objected to the development in their personal capacities on 25 May 2021, appealed the municipality's approval on 13 April 2022, and had their appeal dismissed on 14 October 2022. Letters of demand were sent on behalf of 'concerned citizens residing in Ward 1' on 31 July and 8 August 2023. The respondents filed answering affidavits, and the third respondent filed a Rule 7(1) notice disputing the attorney's authority. On 2 October 2023 (the eve of the hearing set for 3 October), the applicant's counsel advised the court that the application would be withdrawn. By agreement on 3 October 2023, the application was withdrawn and costs were postponed for adjudication. The first and third respondents then sought costs, including de bonis propriis against the deponent and attorney.
The applicant is ordered to pay the costs of the application. No costs order de bonis propriis was granted against the deponent or the attorney.
A party that withdraws litigation is ordinarily liable for costs. To escape this rule on the basis of public interest litigation, the applicant must establish it is a genuine public interest litigant. The determination of whether a litigant is a public interest litigant requires a fact-specific, case-by-case inquiry. Factors include whether the litigant has a personal proprietary or pecuniary interest, whether the litigation was brought in good faith, and whether the conduct of the litigant (including unexplained withdrawal on the eve of hearing) is consistent with genuine public interest motives. Where a litigant is found to be a 'sham' or device used by individuals with personal interests, and abandons litigation without explanation, it falls outside the scope of public interest litigation and the ordinary costs rule applies.
The court observed that public interest litigation is a powerful accountability tool enabling citizens to hold government to account, and that courts generally excuse unsuccessful public interest litigants from costs liability to avoid deterring genuine public interest cases. However, parties should think carefully before taking a case to court, and a litigant claiming to act in the public interest should see litigation through to its finality; an abandoned litigation is difficult to characterise as genuinely in the public interest. The court also noted that the mere fact that the applicant is registered as a non-profit community economic empowerment foundation does not automatically qualify it as a public interest litigant.
The judgment provides a detailed analytical framework for distinguishing genuine public interest litigants from private individuals using corporate entities to advance personal interests while seeking the costs protection afforded to public interest litigants in South African law. It emphasises that the characterisation as a 'public interest litigant' is fact-dependent and cannot be based solely on a company's registration status. The case also confirms that unexplained withdrawal of litigation on the eve of hearing is a factor that undermines claims of genuine public interest motivation and may render the conduct unreasonable for costs purposes.