Picture: ISTOCK
Picture: ISTOCK

The Constitutional Court has come to the aid of three university students who were saddled with legal costs after losing two court cases.

On Tuesday, the Court set aside two judgments, one passed by the High Court in Grahamstown in March this year, and the other by the Supreme Court of Appeal (SCA) on July 2.

The previous judgments had ordered the students to pay Rhodes University’s legal costs in their application for leave to appeal an earlier court judgment.

Sian Ferguson‚ Yolanda Dyantyi and Simamkele Heleni were involved in student protests against the culture of rape and gender violence on campus in April last year. The demonstrations led, in some instances, to unlawful conduct‚ including the disruption of classes and the kidnapping and assault of two male students who were suspected of rape or sexual assault.

The university obtained an urgent interim interdict against the students‚ which was later ruled final by the High Court, which ordered each party to pay their own costs. However‚ the court later instructed the students to foot the legal bill when it dismissed an appeal bid‚ as did the SCA.

The Constitutional Court differed with the lower courts. In a unanimous judgment penned by Acting Justice Jody Kollapen‚ the Court said costs tended to obstruct access to the courts and justice. He said the Constitutional Court passed the Biowatch judgment in 2009‚ and observed the “chilling effect” costs orders could have on parties seeking to assert their constitutional rights — even where they were unsuccessful.

Kollapen said one needed to be careful not to create the perception that the students were being admonished with a costs order for seeking leave to appeal. “It was, of course, their right to do so‚ and they were able to mount an arguable‚ but ultimately unpersuasive case‚ in their favour‚” Kollapen said.

The Socio-Economic Rights Institute of SA (Seri)‚ which represented the students‚ welcomed the judgment. “It does show that the Constitutional Court wants citizens to enforce their rights‚” said Nomzamo Zondo‚ director of litigation at SERI. She said the students could have been saddled with costs of between R10‚000 and R30,000.

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