The Constitutional Court’s unanimous April 2025 judgment in Prithilal v Akani Egoli (Pty) Ltd and Another restates the narrow circumstances in which a court may depart from the ordinary party‑and‑party scale and award costs on the punitive attorney‑and‑client scale. Ms Prithilal, although successful in joining Akani to her delictual action, had been ordered by the High Court to pay Akani’s costs at that heightened scale. Because the order was handed‑down ex tempore and without reasons, the Constitutional Court struck out the words “on the attorney and client scale”, emphasising that punitive costs must be justified in a judgment.
The court elucidates that an award of attorney‑and‑client costs punishes rather than compensates; it is intended to chastise not indemnify. The court reasoned that such an order may infringe the right of access to courts in section 34 of the Constitution and implicates the foundational rule‑of‑law value in section 1(c). Where reasons are withheld, the order must be seen to violate those guarantees because neither the parties nor an appellate court can test whether the discretion was exercised on proper grounds. Accordingly, punitive costs are confined to situations where the party’s conduct truly warrants judicial censure, such as acting in bad faith, vexatiousness, abuse of process, or similarly egregious behaviour, and where the court sets out why the ordinary scale is inadequate.
Drawing on the reasoning in Mphahlele v First National Bank of SA Ltd, the court considered three inter‑locking features that must be present if punitive costs are to survive constitutional scrutiny. First, the court must acknowledge that it is making an exceptional order. Secondly, it must make factual findings that establish misconduct deserving of sanction. Thirdly, it must explain why those findings justify the harsher scale. The court stopped short of describing this as a rigid test but makes clear that a bare expression of judicial displeasure will not suffice; transparency and reason‑giving are indispensable to curb arbitrariness and permit meaningful appellate review.
Measured against that standard, the High Court’s unmotivated order was unsustainable. While the judge had expressed irritation at delay on the part of Ms Prithilal’s attorneys, the court simultaneously granted the joinder and made no finding that the claim had prescribed. No rational bridge connected the mild rebuke to the severe costs sanction. It was further observed that, where fault lies with a representative rather than a litigant, the proper course is a personal de bonis propriis costs order against the practitioner and not a punitive award against the client.