Attorney-General of Lesotho v Mopa (C. of A. (CIV) 3/2002 CIV/APN/474/98)

Case No: 
CIV/APN/474/98
Media Neutral Citation: 
[2002] LSHC 3
Judgment Date: 
11 April, 2002

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C. of A. (CIV) 3/2002

CIV/APN/474/98

IN THE COURT OF APPEAL OF LESOTHO


In the matter between:


ATTORNEY-GENERAL OF LESOTHO Appellant

and

TEBELO 'MOPA Respondent


JUDGMENT


Constitutional law - validity of statutory prohibition on legal representation in all civil proceedings in the Central and Local Courts - extent of rightsto legal representation and to a fair trial under the Constitution of Lesotho - section 20 of proclamation 63 of 1938 inconsistent with section 12 (8) of the Constitution and void to the extent of the inconsistency - costs orders in constitutional matters.


5,11 April 2002 Coram:


Steyn P

F.H. Grosskopf JA

Plewman JA

Gauntlett JA

Melunsky AJA

Gauntlett JA:


  1. The issue in this appeal is whether section 20 of the Central and Local


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Courts' Proclamation, 62 of 1938, is inconsistent with section 1 2(8) of the Constitution of Lesotho 1993 and to the extent of the inconsistency accordingly void.


  1. It has arisen in the following way. The respondent (as applicant before the High Court) is the defendant in proceedings instituted against him in the Maseru Local Court. The cause of action is defamation and the claim is for damages in an amount of M10 000. At the commencement of the hearing in the Local Court on 11 November 1998, the respondent informed the court that he wished to be legally represented, and asked for a postponement of the case in order to engage a legal practitioner. The application was refused on the grounds that section 20 of Proclamation 62 of 1938 allowed litigants in civil cases no right to legal representation. The case proceeded (a few witnesses testifying) but was then postponed for further hearing. During the postponement the respondent instituted an urgent application before the High Court for a declaratory order that section 20 of Proclamation 62 of 1938 "is inconsistent with section 12(8) of the Constitution of Lesotho and therefore invalid to the extent that it does not permit legal representation in civil proceedings", an order that the proceedings before the Local Court be stayed pending the finalisation of the application, and related relief.


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  1. Although the matter was launched on 26 November 1998, and an interim order granted on 30 November 1998, it was only enrolled for hearing in relation to the final relief sought on 22 and 23 November 2001. Judgment was handed down with expedition by the High Court (Ramodibedi J) on 12 December 2001. It is unfortunately again necessary to record that delays of this magnitude by litigants - particularly when the outcome is not only important to them but to others - are unacceptable. If the respondent was dilatory in seeking a speedy determination of the final relief, it was incumbent upon the appellant (particularly by virtue of his office and the importance of the issues raised) to enroll the matter for hearing.


  1. Proclamation 62 of 1938 gives the Minister - defined as "the Minister of Motlotlehi's Government for the time being responsible for the administration of this Proclamation" - with the concurrence of the Chief Justice the power by warrant to "recognise or establish within the Territory such Central and Local Courts as he shall think fit which shall exercise such jurisdiction and within such limits as may be defined by such warrant" (section 2(1)). A court so recognised or constituted is authorised to exercise civil jurisdiction "to the extent set out in its warrant and subject to the provisions of this Proclamation, over causes and matters in which the defendant is ordinarily resident within the area of the jurisdiction of the Court, or in which the cause of action shall have arisen within the said area...", with certain exceptions


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(sections 6 and 8). Such a court is required to administer "the native law and custom prevailing in the Territory" (subject to what is traditionally termed a colonial repugnancy clause), the "provisions of all rules or orders" made by specified chiefs or headmen, and the provisions of any law which the court is authorised to administer (section 9).


  1. Central and Local Courts are, it is apparent, thus vested with an extensive jurisdiction and wide powers in both criminal and civil matters.


  1. Section 20 of Proclamation 62 of 1938 provides:


"20. Every person who is charged with a criminal offence in a Central or Local Court shall be permitted to defend himself before the Court in person or by a legal representative of his own choice, who shall be a legal practitioner admitted to practice in the Courts of Basutoland. In civil proceedings no party may be represented by a legal practitioner, but shall appear himself; provided that the Court may permit the husband or wife, or guardian, or any servant, or the master, or any inmate of the household of any plaintiff or defendant, who shall give satisfactory proof that he or she has authority in that behalf, to appear and to act for such plaintiff or defendant".


  1. [7] The respondent's founding affidavit before the court a quo put his case in simple terms: "that the Basotho Courts (as the Local and Central Courts are popularly referred to) are courts of law and not domestic tribunals which can deny parties appearing before them legal representation without offending against the Constitution". In the matter in question he was, he said,


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defending a claim for a substantial sum in damages and would not have a fair trial if he was unable to be legally represented.


  1. [8] The application was opposed in the court a quo by three parties: by the plaintiff in the damages action before the Maseru Local Court, by the President of that court and by the Attorney-General. The President of the Maseru Local Court filed an affidavit. She contended that "the term 'fair trial' does not include the right to legal representation especially in a civil case"; that the courts in question were staffed by personnel who are not legally trained; and that "they apply simple Basotho Principles. Therefore the fact that they are not on par with legal representatives would jeopardise the functioning of these courts".


  1. [9] In a reply, the respondent pointed to the value of legal representation not only in advancing the litigant's cause but by virtue of the role of practitioners as officers of the court.


  1. [10] The court a quo upheld the respondent's claim that section 20 of Proclamation 62 of 1938 is in conflict with section 1 2(8} of the Constitution, and is therefore invalid to the extent that it does not permit legal representation in civil proceedings. The court (citing in this regard the judgment of this court in Commander of Lesotho Defence Force v Rantuba


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1999 - 2000 LLR & B 95 (CA) at 102) dismissed the submission on behalf of the appellant that since the Constitution contains no express provision for legal representation in civil cases, no such right exists. Declining to follow pre-constitutional cases in which the prohibition imposed by section 20 of Proclamation 62 of 1938 had been enforced, the court a quo held that the lack of explicit reference in the Constitution to such a right was not determinative: a right to legal representation in civil cases was to be inferred from the whole text of sections 4 (1) (h)and 12 (8), (9), (10) and (11) of the Constitution. "To deny a person legal representation in civil proceedings in a court of law is no doubt a denial of justice itself. It offends against the age-old principle of natural justice at common law."


  1. Before this court the appellant again contended that the Constitution entrenches no right to legal representation. Had this been intended (the argument runs) it could so easily have been explicitly stated - as section 12 (2) (d) does in relation to criminal proceedings. The result is "to leave the question of legal representation in civil proceedings to the common law, to be altered by statute as and when circumstances dictate". Section 20 of Proclamation 62 of 1938 has done just that.


  1. In my view, this argument is flawed.


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  1. This matter, it will be evident, entails a claim to a constitutional right which, the respondent contends, is infringed by a statutory provision. To the extent of that infringement, the provision in question (the respondent asserts) is inconsistent with the Constitution and void.


  1. This argument gives rise to a series of inquiries. The first relates to the general approach a court is required to adopt in the interpretation and application of the Constitution in a matter where a claim such as that in issue here is made. Following on that the question arises whether the court a quo was correct in holding - as it appears to have done - that Lesotho's Constitution impliedly provides for a constitutional right to legal representation in civil proceedings generally. If the court a quo was not correct in that respect, the inquiry is whether the right to a fair trial in civil proceedings - provided expressly in section 12(8) of the Constitution -entitles a civil litigant to legal representation and if so, whether this is without regard to the nature of the particular proceedings or whether it depends on the circumstances. In either eventuality, the further question arises whether (if such a right exists) section 20 of Proclamation 62 of 1938 is inconsistent with it. If the answer to that question is in the affirmative, the inquiry is then whether such an infringement is justified. If there is such a right, and it is infringed, then the final inquiry is as to what order the court should make.


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  1. I proceed to deal with these aspects in that sequence.Interpreting Chapter 2 of the Constitution


  1. This court has previously addressed the first aspect, in its judgments in Sekoati vs President of the Court Martial (CIV 18 of 1999, 9.11.99, unreported in the LLR & B, now reported in 2001 (7) BCLR 750 (LAC)), and in Rantuba. supra. In Sekoati - the first matter in which this court was required to apply the Declaration of Rights comprising Chapter 2 of the Lesotho Constitution - we approved and applied this passage from the first judgment by South Africa's Constitutional Court:


"A Constitution is no ordinary statute. It is the source of legislative and executive authority. It determines how the country is to be governed and how legislation is to be enacted. It defines the powers of the different organs of state, including Parliament, the executive and the court as well as the fundamental rights of every person which must be respected in exercising such powers".


(S v Makwanyane 1995 (3) SA 391 (CC) at para [15].


  1. We went on (by reference to other jurisdictions) to stress the consequential fact that constitutional instruments are interpreted in a different way from ordinary statutory provisions. The interpretation of rights provisions entails, we said, a broadly purposive approach, involving the recognition and application of constitutional values and not a search to find the literal meaning of statutes.


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This however remain an exercise to be undertaken within limits. We quoted in this regard with approval the judgment of Kentridge AJ (speaking for a unanimous court) in S v Zuma 1995 (2) SA 642 (CC) :


"We must heed Lord Wilberforce's reminder that even a constitution is a legal instrument, the language of which must be respected. If the language used by the lawgiver is ignored in favour of a general resort to 'values' the result is not interpretation but divination".


A constitutional right to legal representation?


  1. I turn now to the second aspect. Section 4 (1) (h) of the Constitution confers upon every person in Lesotho " the right to a fair trial of criminal charges against him and to a fair determination of his civil rights and obligations".


This right is then expanded upon in section 12. The scheme of that section is clear. Section 12 (1) to (7) deals specifically and exclusively with criminal proceedings. Section 12 (8), in contrast, deals specifically and exclusively with civil proceedings. Section 12 (2) (d) confers an entitlement to legal representation in criminal proceedings, whatever the offence in question. Section 12 (8) makes no such explicit provision.


  1. [19] The scheme adopted in this regard in Lesotho's Constitution is not, it may be noted, idiosyncratic. Article 6 (3) (c) of the European Convention on Human Rights (1953) guarantees the right of a person charged with any criminal offence


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to legal representation. There is no such provision in relation to civil proceedings.


Article 6 (1) provides for a right to a fair hearing in the determination of civil rights and obligations. Article 12 of Namibia's Constitution (1990) also distinguishes between civil and criminal cases, again with express guarantee of legal representation in criminal cases only (article 12 (1) (d)) Both the interim (1993) and current (1996) South African Constitutions have been similarly structured (see further in that regard Park - Ross vs Director: Office for Serious Economic Offences 1995 (2) SA 148 (C) at 163 C-G; Hamata v Chairperson, Peninsula Technikon IDC 2000 (4) SA 621 (C) at 6361-637B). So too with the right to counsel in section 10 (b) of the Canadian Charter (1982) (see Hogg Constitutional Law of Canada (4th ed 1997) 1438), and article 22 of the Indian Constitution (see Seervai Constitutional Law of India (4th ed 1993) vol 2 pp 1154-5).


  1. [20] In my respectful view, the court a quo was not correct in concluding (as I understand the judgment) that an implied constitutional right to legal representation in all civil proceedings is to be found in the Constitution. I believe it is apparent from the constitutional scheme in this regard, which I have outlined above, and the clear and deliberate contrast between criminal and civil proceedings, that the Constitution does not intend that. On the contrary, a deliberate distinction is drawn between criminal proceedings


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(where such a right is entrenched, irrespective of the nature of the offence with which an accused is charged), and civil proceedings, in relation to which the more general provisions of section 12(8) apply. In these circumstances, the implication of such a right in civil proceedings would offend against the ordinary - and very stringent - test for the implication of provisions in a statute, namely consistency of the putative implied provision with the express provisions, and the fact that without the implied provision, the statute would not make sense (see in particular the analysis by Corbett JA in Rennie NO v Gordon 1988 (1) SA 1 (A) at 22D-F). Even if that standard were to be too exacting (for the reasons indicated in paragraphs [16] and [17] above) in the context of the interpretation of a constitution - a matter) leave open - it seems to me that the admonition by Kentridge AJ in Zuma supra finds full application. The implication of such a provision would be palpably at odds with both the scheme and clear wording of section 12 of the Constitution.


  1. A comparable problem arose in South Africa relating to detailed provisions entrenching a constitutional right to a fair trial in criminal proceedings, with no similar express provision relating to civil proceedings. The majority of the South African Constitutional Court (per Chaskalson P) held that"[i]n the context of our [interim) Constitution, and having regard to the specific wording of the section itself, and the fact that the right to a fair trial


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is dealt with specifically and in detail under section 25 (3), I cannot read section 11 as including a residual fair trial right"


(in Ferreira v Levin NO 1996 (1) SA 984 (CC) at para [185], rejecting the contrary conclusion by Ackermann J in his minority judgment).


  1. It does not follow however that a litigant in civil proceedings in Lesotho has no entitlement to legal representation. As this court stressed in Rantuba supra, in the first place that is an ancient and cherished common law right. We rejected the contention advanced there that the Constitution had tacitly abrogated that common law right. It was not necessary for us to say more. The question however now arises as to whether the Constitution, quite apart from not abrogating the common law right to legal representation in civil proceedings in the way it does in relation to criminal proceedings, nonetheless itself provides a foundation for claiming an entitlement to legal representation in civil proceedings, either generally or in appropriate circumstances.


  1. In my view it does so, in appropriate circumstances. The protection has not been created by entrenching such a right per se. The protection lies in the provision for a right to a fair hearing in civil proceedings. That entitlement will not automatically found a claim under the Constitution to legal representation in all cases. It will


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however do so when the requirements of a fair hearing in turn make legal representation appropriate. It follows that such a claim will not lie in all civil proceedings, in the way it exists (by virtue of the specific stipulation in section 12 (2) (d)) in all criminal proceedings.


  1. The distinction may be simply illustrated. A statute may conceivably provide for the determination of a civil dispute of a very simple kind and with minimal consequences. Examples might include labour legislation providing for the determination of minor disciplinary matters and excluding an entitlement to legal representation, or legislation regulating the adjudication of minor disputes between neighbours, or even property claims of very low value. Sound policy considerations, balancing concerns of cost, fairness, expedition and lack of formality, may in appropriate circumstances justify that approach, and not trench upon the right to a fair trial. Whether or not a particular provision excluding an entitlement to legal representation infringes upon the right to a fair trial would have to be examined in each instance on its own terms. Just such an approach was adopted by the Supreme Court of Canada in G v Minister of Health and Community Services 7 BHRC 615 (Can SC) at 633 (para.75).


  1. [25] I referred in paragraph [19] above to a comparable scheme adopted in the ECHR. It is significant that the European Commission has adopted just such an approach, considering whether there has been a "fair hearing", as contemplated by article 6 (1), where legal representation in a civil proceeding


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is excluded (Harris et al Law of the European Convention on Human Rights (1995) 216, citing Webb v UK No. 9353/81, 33 DR 133 (1983)).


  1. [26] That then, in my view, is the scheme created by section 12. It does not impliedly provide, in the manner suggested by the court a quo, for a right to legal representation in all civil proceedings. But it does provide unequivocally for a right to a fair hearing in all civil proceedings. Such is the importance to litigants the court itself and the functioning of the administration of justice in general of legal representation (for the reasons analysed in Rantuba supra) that a court would be concerned, in applying the general right to a fair trial in civil proceedings to scrutinise carefully the exclusion of legal representation to ensure that the general right the Constitution does confer to a fair hearing in civil matters is not undermined.


Does section 20 of Proclamation 62 of 1938 infringe on the right to a fair hearing ?


  1. This gives rise to the next - the third - inquiry: does section 20 of Proclamation 62 of 1938 have the effect of infringing upon the constitutional right to a fair hearing entrenched in section 12(8) of the Constitution ?


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  1. In my view, it patently does do so. The statutory prohibition on representation by a legal practitioner in civil proceedings in that provision is wholly without qualification: whatever the complexity of the issue or the amount at stake or other measure of its significance, the exclusion is entire. This is despite the fact that the value to the litigant of representation of some kind is implicitly acknowledged by the provision for representation by "any inmate of the household of the litigant". (I revert to this aspect in a further regard below).


  1. For the reasons I have given (in paragraphs [24] to [26]), the constitutional entitlement to a fair trial may not require a party to be legally represented where the dispute is not complex, where it is capable of being adequately addressed by the litigants in person and where the potential consequences are confined. That however is not the position under section 20 of Proclamation 62 of 1938. The exclusion applies not only without refinement, but it does so in courts of extensive jurisdiction. When Cotran J (as he then was) said - in the passage quoted more fully by the court a quo - that "the nature of the disputes are simple and can adequately be dealt with by those courts" (Lepolesa Mahloane v Julius Letele 1974-75 LLR 255 at 256), he appears with respect to have overlooked this. The same applies to the suggestion by Mofokeng J in Macheli v Sesiu 1976 LLR 212 that the proceedings in Central and Local Courts are simple and uncomplicated by


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technicalities. In some cases customary law may raise complex issues, particularly in its intersection with the Constitution (see Bennett Human Rights and African Customary Law (1995) passim; cf Mthembu v Letsela 2000 (3) SA 867 (SCA)). The point moreover is not whether the dispute " can adequately be dealt with by those courts"; it is whether it is fair to require a litigant to be without legal representation.


  1. The present case again illustrates the point. It entails a claim of defamation. What amounts to defamation, its publication, and defences are not without complication. This is the more so when the eftect of the Constitution on the pre­existing law of defamation is yet to be the subject of an authoritative ruling in Lesotho (Commander, Lesotho Defence Force v. Matela 1999 - 2000 LLR & B 13 (LAC); cf. Hix Networking Technologies v System Publishers (Pty) Limited 1997 (1) SA 391 (A); National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA)).


  1. I accordingly conclude that section 20 of Proclamation 62 of 1938, in excluding legal representation in all civil proceedings in the Central and Local Courts, is to that extent inconsistent with the right to a fair trial.


  1. The court a quo, it may be noted, also considered the provision to infringe upon the constitutional right to equality. This is because accused persons in criminal proceedings are always permitted legal representation in terms of


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the impugned provision, while civil litigants are always deprived of it. I agree that the distinction is - for the reasons outlined below - arbitrary and irrational, but I respectfully disagree with the conclusion that it also offends against the right to equality. The essential notion of equality jurisprudence is that persons similarly circumstanced should be similarly treated. What the South African Constitutional Court has termed "mere differentiation" (Prinsloo v Van der Linde 1997 93) SA 1012 (CC) at para [25]) may, as I believe to be the case here, be arbitrary and irrational, but it need not necessarily constitute an act of discrimination repugnant to the equality clause. An accused in criminal proceedings is not similarly circumstanced to litigants - plaintiffs, defendants, third parties, intervenors and nominal parties - in civil proceedings. He or she stands in jeopardy of liberty or other punishment meted out by the State, social stigma and their consequences in society. Civil litigants cannot generally be equated with an accused on trial.


Is the infringement justified?


  1. [33] Consequential to this conclusion that section 20 of Proclamation 62 of 1938 infringes upon the right to a fair trial in civil proceedings is the inquiry as to whether the infringement may nevertheless be justified. The Constitution


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does not provide (as some constitutional instruments do) expressly for the justification of an infringement of a Chapter 2 right, but it is apparent from the scheme of the Constitution that a limitation of a right is authorised where, in accordance with the broad test articulated by Dickson CJC in the Canadian Supreme Court in the well known matter of R v Oakes (1986) 26 DLR (4th) 200 (SCC at 226-7, the limitation of the right is reasonable and "demonstrably justified in a free and democratic society". The first aspect relates to the objective or purpose of a limitation, and the second to the aspect of proportionality. The objective must be sufficiently substantial and important so as to warrant overriding a constitutionally protected right, while the proportionality test requires that the means chosen to limit the right are appropriate. Dickson CJC said in this latter respect:


"There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Secondly, the means, even if rationally connected to the objective in this first sense, should impair 'as little as possible' the right or freedom in question: R v Big M Druqmart Limited (1985) 18 DLR (4th) 321 at 352. Thirdly there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as 'of sufficient importance'".


  1. [34] The onus of proving that a limitation is justified rests upon the person averring it (S v Makwanyane supra at para [102]), and it must be discharged


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"clearly and convincingly" (S v Mbatha; S v Prinsloo 1996 (2) SA 464 (CC)). In Lotus River, Ottery, Grassy Park Residence Association v South Peninsula Municipality 1999 (2) SA 817 (C) at 831D, it was stressed that "[t]here must be a reason which is justifiable in an open democratic society based on human dignity, equality and freedom for the infringement of a constitutional right. Further, the limitation must be shown to serve the justifiable purpose".


  1. Section 20 of Proclamation 62 of 1938 in my view fails to meet any of these criteria. Neither threshold in R v Oakes supra is surmounted. Not addressing the question of complexity of the dispute, the provision imposes a total prohibition on legal representation in relation to which the judicial officer is given no mediating discretion. Yet simultaneously it permits representation before a court of Saw by an eclectic array of persons, distinguished by nothing more than the irrational factor that they have some form of relationship with the litigant, or generally share a roof. All these factors seem to me to be insufficiently related to a defensible objective and not to justify the wholesale exclusion of the right.


  1. In my view, the attempt on the papers and in argument before us by the appellant to justify the infringement is without merit. I repeat that this is not to say that a statutory provision restricting legal representation in civil


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proceedings is per se unconstitutional, the blunt and encompassing terms of section 20 of Proclamation 62 of 1938 however have that consequence What order?


  1. The last inquiry pertains to the order we should make For the reasons I have indicated, I consider that section 20 of Proclamation 62 of 1938 is inconsistent with section 12 (8) of the Constitution to the extent that it excludes an entitlement to legal representation in any civil proceeding in the Central and Local Courts The effect of a declaration to that effect is that the provision, to the extent of its inconsistency, is void (section 2 of the Constitution) Section 22 (2) in addition gives this court (in substituting its order for the order of the court a quo) wide powers to "make such orders, issue such process and give such directions as it may consider appropriate for the purpose of enforcing or securing enforcement of any of the provisions of sections 4 to 21 (inclusive) of this Constitution...."


  1. It seems to me however that it is not necessary in this instance to fashion any further direction What is required is a simple declaratory order that section 20 is void to the extent of its inconsistency (in effect the second sentence in the provision is struck down), and an order that in this particular matter (for the reasons given in paragraphs [29] and [30] above) the appellant is entitled to legal representation These are indeed the material prayers in the notice of motion and the order made by the court a quo


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  1. It was not argued before us that the present is an appropriate case for the court to exercise any powers it may have in terms of section 22(2) to mediate the effect of nullity arising on its declaration (pursuant to the provisions of section 2); or to suspend the operation of its order subject to a referral of the offending statutory provision to Parliament for action by it within a timeframe laid down by the court. The extent of the powers of the court in that regard do not require determination in this matter, and it would accordingly be inappropriate to decide "more than what is absolutely necessary for the decision of [this] case" (Bhagwati J in M M Pathak v Union (1978) 3 SCR 334, quoted with approval in Sekoati supra; see further Greathead v SA Commercial Catering and Allied Workers' Union 2001 (3) SA 464 (SCA) at para [6] per F.H. Grosskopf JA).


  1. The matter of costs remains. The appellant contends that (following the approach by the court a quo) this court should make no order as to costs. The respondent asks that if the appeal fails, costs should follow the result. The court a quo, in declining to make any order as to costs, referred to the fact that a constitutional issue was at stake. In ordinary litigation, the essential principle is that the award of costs is in the discretion of the court, and that a successful litigant should generally be awarded his or her costs. In constitutional litigation an additional principle applies. This is that litigants should not be deterred by the threat of adverse costs orders from


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approaching a court to litigate an alleged violation of the Constitution. If the issues raised by such a litigant are advanced in good faith and not vexatiously, and are important and controversial (for instance, involving an alleged violation of Chapter 2 rights), the court is concerned not to penalise the applicant. (See for instance Minister of Justice v Ntuli 1997 (3) SA 772 (CC) at para [34]; African National Congress v Minister of Local Government and Housing, Kwazulu-Natal 1998 (3) SA 1 (CC); Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC)).


  1. [41] But that is not the case here. The appellant is the Government, and is unlikely to be deterred in its decisions to litigate by a costs order (as was noted in Sanderson v Attorney-General, Eastern Cape supra at para [44]). The respondent was obliged by the ruling of the President of the District Court - which the appellant has sought to defend - to bring urgent proceedings in the High Court. The respondent is a non-state actor who has successfully vindicated his constitutional right (cf. August v Electoral Commission 1999 (3) SA 1 (CC) at para [41]; SA National Defence Union v Minister of Defence 1999 (4) SA 469 (CC) at [431; National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) at para [90]; Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) at para [69]). This has taken him from the court in which he was defending himself to two others.


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  1. The President of the Central Court, in refusing to postpone the proceedings and thus obliging the respondent to institute an urgent application for interim relief as well as the determination of the issue before us, seems (it should be noted) to have been unaware of the duty imposed upon her by section 22(3) of the Constitution. This reads:


"If in any proceedings in any subordinate court any question arises as to the contravention of any of the provisions of sections 4 to 21 (inclusive) of this Constitution, the person presiding in that court may, and shall if any party to the proceedings so requests, refer the question to the High Court unless, in his opinion, the raising of the question is merely frivolous or vexatious" {emphasis supplied : see also section 128).


This oversight resulted in unnecessary costs for the respondent: in particular, he should not have had to seek an urgent interim interdict.


  1. The appellant moreover has chosen to institute this appeal which the respondent has been obliged to defend. The issue has arisen, in addition, in the course of proceedings instituted against the respondent in which the respondent is in jeopardy of paying a substantial sum in damages. In all the circumstances, in my view, it would be unfair to the respondent not to award him costs in relation to the appeal.


  1. There was no cross appeal before us by the respondent regarding the costs order made by the court a quo. In the course of argument, this aspect was


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canvassed. Counsel for the respondent quite properly accepted that in the light of his concession in the court a quo regarding costs, and in the absence of a cross- appeal on this issue, the costs order made by the court a quo could not be disturbed.


  1. The following order is accordingly made: The appeal is dismissed, with costs.


GAUNTLETT JA


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I agree

STEYN P


I agree


F.H. GROSSKOPPF JA


I agree


PLEWMAN JA


I agree


MELUNSKY AJA


Counsel for the appellant: M. Mapetla

Counsel for the respondent: Adv Z. Mda