Mootness and the Approach to Costs Awards in Constitutional Litigation: A Review of Christian Roberts v Minister of Social Development Case No 32838/05 (2010) (TPD)

34 Pages Posted: 19 Mar 2013

Date Written: December 21, 2012

Abstract

After nearly three years of waiting, the North Gauteng High Court (then the Pretoria High Court) finally handed down judgment in March 2010 in the case of Christian Roberts v Minister of Social Development. The case was a constitutional challenge to section 10 of the Social Assistance Act 13 of 2004 and the relevant Regulations, which set the age for accessing an old age grant at 60 for women and 65 for men. After the hearing the High Court had reserved judgment. Pending judgment the government had amended the legislation in dispute so that the pensionable age for the purposes of accessing a social grant would be equalised over time. Despite the change in legislation, the High Court found against the applicants and punished them with a costs order.

Until such time as it is appealed against and overturned, as it stands this decision presents a grave concern to some constitutional law principles relating to mootness and the approach to costs in constitutional litigation between the State and private litigants. Particularly, the decision threatens the hitherto special role played by public interest litigants in vindicating constitutional rights ranging from access to housing and land, to the rights of the child, gay men and lesbian women and freedom of expression, among others. This contribution tackles two issues arising from the judgment of the High Court. The first issue is that of 'mootness', which arises from the government's decision to amend the impugned legislation complained of by the applicant, which effectively knocked the wind out of the applicants' constitutional challenge. The second issue is the decision by the judge to award an adverse costs order against the applicants and the amici. Guided by how the courts in South Africa and abroad have dealt with similar matters in the past, in this contribution the author aims to demonstrate the implications of this decision for constitutional law generally and for public interest litigation in particular.

Quite apart from the two issues referred to above as precipitating the present discussion, there is one more reason why a review of this judgment is necessary. A recent discussion with the attorney for the amici on the case has revealed that the prohibitively high costs of taking the matter on appeal to the full bench have discouraged the parties from pursuing this avenue. The losing parties are also hoping that the government will come to its senses and abandon the costs awarded in its favour. This unfortunately has not happened until now. Thus the single judge's erroneous decision remains law for the time being, although it is wrong law.

The discussion commences with a brief factual background to the case, followed by a discussion of the important constitutional principle of the doctrine of mootness. This is followed by an outline of the principles relating to costs orders in matters raising an important constitutional issue, and in matters brought in the public interest. The review concludes that the court a quo erred in deciding the merits of the case, and that even when it had decided to pronounce on the merits - as it did - it nonetheless should not have punished the applicants and the amici with the costs thereof. The correct approach was to order that each party pay his or her own costs.

Suggested Citation

Heleba, Siyambonga, Mootness and the Approach to Costs Awards in Constitutional Litigation: A Review of Christian Roberts v Minister of Social Development Case No 32838/05 (2010) (TPD) (December 21, 2012). Potchefstroom Electronic Law Journal, Volume 15, No. 5, 2012, Available at SSRN: https://ssrn.com/abstract=2233332

Siyambonga Heleba (Contact Author)

University of Johannesburg ( email )

PO Box 524
Auckland Park
Johannesburg, Gauteng 2006
South Africa

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