8 November 2017 by and Dispute Resolution Alert

Lower costs – that’s the best medicine

Niekara Harriellal wants to be a medical doctor. So strong is her desire to achieve this goal that she was willing to fight the University of KwaZulu-Natal all the way to the Constitutional Court. Most people know how coveted a placement in a South African university medical programme is. Competition is tough. When Ms Harriellal’s 2015 application to the MBChB degree was rejected, she applied again in 2016 as a “mature student”, having registered in 2015 for the Bachelor of Medical Science (Anatomy) course. Again, she faced rejection.

Ms Harriellal would not be deterred. She proceeded to launch a review of UKZN’s decision not to grant her access to the programme. She argued that the university failed to consider and apply its own admission policy in not admitting her to the programme. Hats off already to Ms Harriellal for doggedly pursuing her dreams. Unfortunately for Ms Harriellal, the High Court, the Supreme Court of Appeal and eventually the Constitutional Court all agreed that the university had indeed applied its policy for determining her admission. There were 160 applicants vying for 10 placements and the other applicants had simply scored higher. The focus of the Constitutional Court’s judgment then shifted to whether or not Ms Harriellal should be saddled with the cost of litigating against the university.

The ordinary rule is this - if a litigant wins its case, the court will usually award it costs. This means that the winning party in a case can claim its necessary costs from the losing party. That is not true in constitutional matters against the State. An unsuccessful party in proceedings against the State should be spared from paying the State’s costs in constitutional matters. This principle was first established in Biowatch Trust v Registrar, Genetic Resources 2009 6 SA 232 (CC) and, thankfully, confirmed in Ms Harriellal’s case.

The rationale behind the Biowatch principle is easy to understand and the judges in Harriellal were disappointed that the principle – a general rule to be applied in every constitutional matter involving organs of State – has not been widely applied by other courts. The rule is intended to prevent the chilling effect that adverse costs orders might have on litigants seeking to assert constitutional rights.

Does this mean that we can we all tootle off to court with any complaint that we can find a constitutional angle to? No, unfortunately not. There are instances where the Court may depart from the Biowatch rule. If a court were to find that the litigation was frivolous (meaning improper, or instituted without sufficient ground and intended only to annoy) or vexatious (meaning it has no serious purpose or value); or if certain conduct on the part of the litigant deserves censure by the Court – it may well order the unsuccessful litigant to pay costs. Unless the unsuccessful litigant is guilty of one of these things, the Biowatch rule must be followed. The Constitutional Court specifically said that another court may justifiably interfere with the award where the Biowatch principle is not followed.

An interesting question that may arise in future, as it did in this case, is whether or not a case does involve a constitutional matter. The SCA held that the Biowatch principle did not apply in Ms Harriellal’s case because a review under the Promotion of Administrative Justice Act is not a constitutional issue. Not so fast, said the Constitutional Court. There were in fact two constitutional issues at play in the Harriellal case. Firstly, the review of administrative action under PAJA was a constitutional issue because the purpose of PAJA is to give effect to administrative justice rights guaranteed by s33 of the Constitution. Also, when the university determined the application for admission, it exercised a public power and public power is now controlled by the Constitution. Secondly, in applying for admission Ms Harriellal sought to have access to further education. That too is a constitutional matter.

In short, both the SCA and the High Court were wrong not to apply the Biowatch principle and Ms Harriellal was at least able to avoid paying the University’s costs even if she couldn’t study to be a doctor at UKZN.

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