So as not to discourage the public from challenging unconstitutional acts of government, even an unsuccessful litigant may not have to pay the government’s costs.
The general rule in constitutional litigation between a private party and the state is that if the private party is successful, its costs should be paid by the state, but if unsuccessful, each party should pay its own costs.
If a court departs from the general rule, it should provide convincing reasons for doing so. Reasons assist an appellate court and enable the parties, and other potential litigants, to know what has been done incorrectly and what should be avoided in the future.
The rationale behind the rule is to avoid meritorious claims not being proceeded with due to fear that failure could lead to financially ruinous consequences. It also enables underfunded NGOs to take Bill of Rights issues to court on a pro bono basis without risking a crippling costs order. This is an important element of access to justice.
In 2015 the Constitutional Court reaffirmed the general rule in Tebeila Institute of Leadership, Education, Governance, and Training v Limpopo College of Nursing and Another. The case was on appeal from the High Court where the plaintiff had successfully challenged the admission criteria of the defendant which required prospective nursing students to have obtained a school-leaving certificate within three years prior to their application. Despite success, each party was ordered to pay its own costs. The Constitutional Court overturned this order of the High Court, emphasising that access to education was plainly constitutional.