MADLANGA J
misdirection because if applicants are successful in a constitutional challenge against
the state, they should be awarded their costs.
[154] The principles on costs in constitutional litigation were established in
Biowatch.179 This Court held that—
“the general rule for an award of costs in constitutional litigation between a private
party and the state is that if the private party is successful, it should have its costs paid
by the state, and if unsuccessful, each party should pay its costs.”180
[155] This Court is generally reluctant to interfere in costs orders of the courts below—
“unless it is satisfied that the discretion was not exercised judicially, the discretion was
influenced by wrong principles, or a misdirection on the facts, or the decision reached
could not reasonably have been made by a court properly directing itself to all the
relevant facts and principles. There must have been a material misdirection on the part
of the lower court”.181
[156] These are such exceptional circumstances. It is unclear which genre of litigation
the High Court is referring to, but – on the authority of Biowatch – its decision on costs
is based on a material misdirection. According to Biowatch the applicants ought to have
been awarded their costs against all the respondents that opposed the application before
the High Court.182 In this Court as well the applicants are entitled to their costs. Only
the Ministers of State Security and Police can be said to have really opposed the
confirmation application. They must pay the costs in this Court.
179
Biowatch Trust v Registrar Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR
1014 (CC) (Biowatch).
180
Id at para 43.
181
Public Protector v South African Reserve Bank [2019] ZACC 29; 2019 (6) SA 253 (CC); 2019 (9) BCLR 1113
(CC) at para 144.
182
They are the Minister of Justice and Correctional Services, the Minister of State Security, the Minister of
Defence and Military Veterans, the Minister of Police, the Office for Interception Centres, the National
Communications Centre and the State Security Agency.
78
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