Ferguson and Others v Rhodes University (CCT187/17) [2017] ZACC 39; 2018 (1) BCLR 1 (CC) (7 November 2017)

Ferguson and Others v Rhodes University (CCT187/17) [2017] ZACC 39; 2018 (1) BCLR 1 (CC) (7 November 2017)

The Constitutional Court found that the High Court and Supreme Court of Appeal failed to properly apply the Biowatch principle in awarding adverse costs against the applicants in the application for leave to appeal. The applicants were asserting constitutional rights and had achieved partial success in limiting the scope of the interdict. There was no finding that their application for leave to appeal was frivolous, vexatious, or brought in bad faith. The High Court's reliance solely on fairness, without proper consideration of the Biowatch principle, constituted an error in the exercise of judicial discretion. The Court held that each party should bear its own costs in the High Court,...

Citation
[2017] ZACC 39
Parties
Applicant: Sian Ferguson; Applicant: Yolanda Dyantyi; Applicant: Simamkele Heleni; Respondent: Rhodes University
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
7 November 2017
Case Number
CCT 187/17
Procedural Posture
Leave to Appeal / Appeal From Supreme Court of Appeal; Review of Costs Orders
Outcome
Appeal on costs upheld; adverse costs orders set aside; each party to pay its own costs in all relevant courts for the application for leave to appeal.
Judges
Mogoeng, Zondo, Cameron, Froneman, Jafta, Kathree Setiloane, Kollapen, Madlanga, Mhlantla, Zondi
Legal Topics
Freedom of Expression, Right to Assembly, Costs in Constitutional Litigation, Biowatch Principle, Judicial Discretion, Interdicts
Constitutional Law Civil Procedure Freedom of Expression Right to Assembly Costs in Constitutional Litigation Biowatch Principle Judicial Discretion Interdicts

Case Brief

Summary, issues, holding and outcome

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Parties

Sian Ferguson

Applicant

Yolanda Dyantyi

Applicant

Simamkele Heleni

Applicant

Rhodes University

Respondent

Procedural Posture

Leave to Appeal / Appeal From Supreme Court of Appeal; Review of Costs Orders

Legal Issues

  1. 1 Whether the adverse costs orders against the applicants in the application for leave to appeal in the High Court and Supreme Court of Appeal were constitutionally appropriate.
  2. 2 Whether the Biowatch principle on costs was correctly applied in the constitutional context.
  3. 3 Whether the applicants' involvement in unlawful conduct justified the granting of a final interdict and adverse costs.

Ratio Decidendi

The Constitutional Court found that the High Court and Supreme Court of Appeal failed to properly apply the Biowatch principle in awarding adverse costs against the applicants in the application for leave to appeal. The applicants were asserting constitutional rights and had achieved partial success in limiting the scope of the interdict. There was no finding that their application for leave to appeal was frivolous, vexatious, or brought in bad faith. The High Court's reliance solely on fairness, without proper consideration of the Biowatch principle, constituted an error in the exercise of judicial discretion. The Court held that each party should bear its own costs in the High Court,...

Court Disposition

Appeal on costs upheld; adverse costs orders set aside; each party to pay its own costs in all relevant courts for the application for leave to appeal.

Orders

  • Leave to appeal is granted only against the order of the Supreme Court of Appeal upholding the High Court's order on costs in the application for leave to appeal.
  • The appeal on costs is upheld.