Biowatch Shield, Costs Liability for Abuse of Process and Crossfire Litigation ‒ Biowatch Trust v Registrar Genetic Resources 2009 (6) SA 232 (CC)

Abstract

While costs are traditionally dealt with at the tail end of proceedings and invariably in the concluding segment of a court’s judgment, they nevertheless continue to be consequential. This is especially so in respect of how access to constitutional justice is pursued and levered. The outlines of the progressive costs awards jurisprudence in constitutional and public interest litigation are encapsulated in Biowatch Trust v Registrar Genetic Resources (2009 (6) SA 232 (CC) (Biowatch)). Biowatch established the general proposition that in litigation between the State and private parties seeking to assert a fundamental right, the State should ordinarily pay costs if it loses. The Biowatch shield seeks to mitigate the “chilling effects” cost orders could have on parties seeking to assert their constitutional rights – even where unsuccessful. The threat of hefty costs orders may chill constitutional assertiveness. It may deter parties from challenging questionable practices of the State. This is particularly so in a society characterised by disparities in resources and inequality of opportunities. The vindication of fundamental rights is inseparably linked to the transformative process the Constitution envisages. It is now established that the general rule in constitutional litigation is that an unsuccessful litigant in proceedings against the State ought not to be ordered to pay costs. On the other hand, the Biowatch principle also permits exceptions and does not go so far as to immunise all constitutional litigation from the risk of an adverse costs order. A worthy cause or worthy motive cannot immunise a litigant from an adverse costs order for abuse of process or engaging in frivolous or vexatious proceedings.
The case note addresses the application of the Biowatch principle in respect of cost orders where a public interest litigant has conducted the proceedings in an abusive, vexatious or frivolous manner, as well as in crossfire litigation. The first-tier question that arises is: can a court impose adverse costs awards on a constitutional litigant where a suit is unmeritorious or there is impropriety in the manner in which the litigation has been undertaken? There is also the delicate issue of costs awards in crossfire disputes. In pith and substance, crossfire disputes involve litigation between a private party and the State, provoked by the latter’s failure to perform its regulatory role but adversely affecting the interests of other private parties. In effect, the knotty question is: can adverse costs orders be made against interveners or parties who become involved in proceedings?