The Director of Public Prosecutions (KwaZulu-Natal) v Aleck Henry, Prishika Pillay and Sarojini Nadar

The third respondent (complainant), a 27-year-old woman, consulted the second respondent (a clinical psychologist) in February 2003 for marital problems and depression. During consultation, she reported being raped and indecently assaulted by the first respondent when she was 10 years old (17 years previously). After 15 sessions of assessment and treatment, she laid criminal charges against the first respondent. The first respondent was charged and requested particulars from the State, including a copy of all documents to be used at trial. The State provided the psychologist's report dated 31 October 2003, which contained expert opinion suggesting the complainant's clinical picture was typical of an adult survivor of childhood sexual abuse. The first respondent requested all working documents and notes from the 15 sessions, which the State refused to provide. The psychologist and complainant opposed the application on grounds of privacy and confidentiality. The regional magistrate ordered some documents to be handed over. The psychologist and complainant launched review proceedings. At the High Court hearing, the State clarified it would only call the psychologist to testify about the initial report made to her, not as an expert witness. The court set aside the magistrate's order and awarded costs against the State.

• Whether a court of appeal can interfere with a costs order made by a court of first instance
• Whether the State adequately clarified the limited purpose for which it intended to call the psychologist as a witness
• Whether the costs order against the State was properly exercised within judicial discretion

The appeal was dismissed with costs.

A court of appeal will only interfere with a costs order made by a court of first instance if the exercise of that discretion is vitiated by misdirection or irregularity, or if there are no grounds on which a court, acting reasonably, could have made the order in question. The mere fact that the court of appeal may have made a different order is no justification for interference. Where the State fails to clearly communicate the limited purpose for which it intends to call a witness, creating confusion that leads to unnecessary litigation, a costs order against the State is justified and will not be interfered with on appeal.

Scott JA remarked that leave to appeal should never have been granted in this matter, given the well-established principles governing appellate interference with costs orders and the clear justification for the costs order made by the High Court. The judgment also noted that the regional magistrate had misdirected herself in proceeding on the basis that it was only after the 15 sessions of psychotherapy that it finally came out that the complainant had been raped, when this was common cause to be incorrect. While the case raised potentially difficult constitutional issues relating to the tension between a complainant's right to dignity, privacy and confidentiality versus an accused's right to a fair trial, these issues did not need to be decided once the State clarified the limited scope of the psychologist's intended evidence.

This case reaffirms the well-established principle governing appellate interference with costs orders made by courts of first instance. It emphasizes the limited circumstances in which an appellate court will interfere with the exercise of judicial discretion regarding costs. The case also highlights the importance of clear communication by the prosecution regarding its intended use of evidence, particularly in cases involving constitutional rights such as privacy, dignity, and the right to a fair trial. The judgment demonstrates that where ambiguity or confusion created by the State leads to unnecessary litigation, the State may properly be held liable for costs even though it ultimately did not actively participate in the proceedings as a party. The case serves as a reminder to prosecutors of their duty to provide clear and unequivocal particulars to accused persons to avoid unnecessary procedural disputes.