Johannesburg – The Helen Suzman Foundation (HSF) wants the Supreme Court of Appeal (SCA) to reconsider and vary its court order dismissing with costs its challenge to the government’s response to the Covid-19 pandemic.
The SCA has agreed to hear the reconsideration and, if necessary, variation application within the next three months.
The foundation was unsuccessful in its appeal of the October 2020 judgment of the full bench of the North Gauteng High Court, which threw out its application challenging Parliament, President Cyril Ramaphosa and his Cabinet’s failure to prepare, initiate, consider and pass legislation to regulate the state’s fight against Covid-19.
According to its application, the HSF wants the SCA to consider whether the March 2021 order should be varied so that no costs award is made against it.
HSF director Francis Antonie has told the SCA that there were no arguments led on costs and that no respondents even sought costs.
”This is in keeping with the trite constitutional principles regarding the awarding of costs in constitutional litigation,” he explained.
According to the HSF, the Constitutional Court has established that as a general rule in constitutional litigation, an unsuccessful litigant in proceedings against the state ought not to be ordered to pay costs.
The foundation believes there are exceptional circumstances that warrant SCA president Mandisa Maya to exercise her powers in terms of the Superior Court Act that allow her to refer the decision in relation to costs to the court for reconsideration and, if necessary, variation.
In her response, former National Assembly speaker Thandi Modise told the SCA that the HSF’s application should be dismissed on the grounds that no exceptional circumstances exist for the order to be reconsidered and varied.
”There is no grave injustice that will arise if the president of this court does not reconsider the costs order,” Modise said in her answering affidavit.
She also denied the HSF’s warning that failure to remedy the costs order has the very real potential to have a chilling effect on important constitutional litigation going forward.
Modise said the apex court and the SCA have previously held that there are instances when unsuccessful litigants that litigate against the state should be ordered to pay costs.
In their response, Ramaphosa, his Cabinet and Cooperative Governance and Traditional Affairs Minister Dr Nkosazana Dlamini Zuma said the HSF’s reconsideration application was manifestly inappropriate and was correctly met with a costs order.
They also want it dismissed with costs.
The high court found that the Constitution does not require the executive and parliament to pass Cod-19-specific legislation as the Disaster Management Act already existed.
The foundation had wanted the courts to declare that Ramaphosa in his capacity as head of the national executive failed to fulfil the duty to prepare and initiate legislation regulating the government’s response to Covid-19 and that Parliament and Ramaphosa’s Cabinet failed to fulfil their duty to respect, protect, promote and fulfil the rights in the Bill of Rights.
It also wanted Cabinet directed to, without delay, prepare and initiate legislation that has as its purpose the regulation of the state’s response to Covid-19 and Parliament to immediately pass the legislation.