[179] The general principle referred to in the Bio Watch Trust matter was set out in the case of Affordable Medicines Trust and Others v Minister of Health and Others where Mr Justice Ngcobo said: award of costs is a matter which is within the discretion of the Court considering the ‘The issue of costs. It is a discretion that must be exercised judicially having regard to all the relevant considerations. One such consideration is the general rule in constitutional litigation that an unsuccessful litigant ought not to be ordered to pay costs. The rationale for this rule is that an award of costs might have a chilling effect on the litigants who might wish to vindicate their constitutional rights. But this is not an inflexible rule. There may be circumstances that justify departure from this rule such as where the litigation is frivolous or There may be conduct on the part of the litigant that deserves censure by the vexatious. Court which may influence the Court to order an unsuccessful litigant to pay costs. The ultimate goal is to do that which is just having regard to the facts and circumstances of the case. In Motsepe v Commissioner for Inland Revenue this Court articulated the rule as follows: '(O)ne should be cautious in awarding costs against litigants who seek to enforce their constitutional right against the State, particularly where the constitutionality of the statutory provision is attacked, lest such orders have an unduly inhibiting or ''chilling'' effect on other potential litigants in this category. This cautious approach cannot, however, be allowed to develop into an inflexible rule so that litigants are induced into believing that they are free to challenge the constitutionality of statutory provisions in this Court, no matter how spurious the grounds for doing so may be or how remote the possibility that this Court will grant them access. This can neither be in the interests of the administration of justice nor fair to those who are forced to oppose such attacks.' [180] In the Bio Watch Trust matter Mr Justice Sachs justified the general rule that an unsuccessful litigant ought not to be ordered to pay costs as follows: The rationale for this general rule is threefold. In the first place it diminishes the ‘[23] chilling effect that adverse costs orders would have on parties seeking to assert constitutional rights. Constitutional litigation frequently goes through many courts and the
[179] The general principle referred to in the Bio Watch Trust matter was set out in the case of Affordable Medicines Trust and Others v Minister of Health and Others where Mr Justice Ngcobo said: ‘The award of costs is a matter which is within the discretion of the Court considering the issue of costs. It is a discretion that must be exercised judicially having regard to all the relevant considerations. One such consideration is the general rule in constitutional litigation that an unsuccessful litigant ought not to be ordered to pay costs. The rationale for this rule is that an award of costs might have a chilling effect on the litigants who might wish to vindicate their constitutional rights. But this is not an inflexible rule. There may be circumstances that justify departure from this rule such as where the litigation is frivolous or vexatious. There may be conduct on the part of the litigant that deserves censure by the Court which may influence the Court to order an unsuccessful litigant to pay costs. The ultimate goal is to do that which is just having regard to the facts and circumstances of the case. In Motsepe v Commissioner for Inland Revenue this Court articulated the rule as follows: '(O)ne should be cautious in awarding costs against litigants who seek to enforce their constitutional right against the State, particularly where the constitutionality of the statutory provision is attacked, lest such orders have an unduly inhibiting or ''chilling'' effect on other potential litigants in this category. This cautious approach cannot, however, be allowed to develop into an inflexible rule so that litigants are induced into believing that they are free to challenge the constitutionality of statutory provisions in this Court, no matter how spurious the grounds for doing so may be or how remote the possibility that this Court will grant them access. This can neither be in the interests of the administration of justice nor fair to those who are forced to oppose such attacks.' [180] In the Bio Watch Trust matter Mr Justice Sachs justified the general rule that an unsuccessful litigant ought not to be ordered to pay costs as follows: ‘[23] The rationale for this general rule is threefold. In the first place it diminishes the chilling effect that adverse costs orders would have on parties seeking to assert constitutional rights. Constitutional litigation frequently goes through many courts and the
Waterberg%20Wildnerness%20v%20The%20Minister%20of%20Land%20Reform%20(A%20197-2015)%20[2016]%20NAHCMD%20366%20(17%20November%202016).docx