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  • Jaimin Patel

The Biowatch Principle in Public Interest Litigation

Can the delicate balance between deterring frivolous litigation and ensuring access to justice be effectively maintained in the evolving landscape of legal principles and societal interests?

By Mfihlakalo Kubeka (Candidate Attorney)

The elephant in the room - adverse cost orders are a critical aspect of legal proceedings, dictating that the losing party bears the legal expenses of the prevailing party. While serving to deter frivolous litigation, adverse cost orders also raise profound concerns about access to justice, particularly in cases involving public interest issues or litigation against the state.


The Biowatch principle, born from the landmark Biowatch Trust v Registrar and Others case, stands as a beacon guiding the application of adverse cost orders, especially within the realm of public interest litigation. This principle underscores the imperative of ensuring that adverse cost orders do not impede access to justice in cases where constitutional rights or broader societal interests are in contention.


Courts wield considerable discretion when issuing adverse cost orders, considering factors such as the public importance of the issues raised and the conduct of the litigants. This discretion becomes particularly pivotal in cases where litigants challenge state actions or legislation on constitutional grounds.


The Biowatch principle advocates for a balanced approach in cost awards where adverse cost orders are tailored to reflect the principles of fairness and proportionality. While litigants challenging the state may indeed face adverse cost orders, courts are acutely aware of the public interest dimensions of such cases. Consequently, they may mitigate the financial burden on parties acting in good faith to assert constitutional rights, aligning with the spirit of Biowatch, at the tail-end of judgments as appendages to decisions on the merits.


However, it's essential to recognise that adverse cost orders are not confined solely to cases against the state. Private individuals engaged in litigation may also find themselves contending with similar considerations. A pertinent example is the Ferreira v Levin case, which delved into disputes between private parties. In this case, the court applied principles reminiscent of the Biowatch principle, acknowledging the importance of equitable access to justice even in disputes between private entities.


The interplay between adverse cost orders, the Biowatch principle, and public interest litigation underscores the complexities of the legal landscape. On one hand, adverse cost orders serve as a bulwark against abuse of the legal system, ensuring that litigants bear the consequences of meritless claims. On the other hand, they must not become a barrier to justice, particularly in cases where fundamental rights are at stake.


Courts are tasked with delicately balancing these competing interests, navigating the terrain with careful consideration and discretion. While the imposition of adverse cost orders may indeed be necessary to deter frivolous litigation and maintain the integrity of the legal system, courts must remain cognisant of the broader societal implications, especially in cases of public interest.


In essence, adverse cost orders and the Biowatch principle are not diametrically opposed concepts but, rather, they are complementary facets of a legal framework aimed at promoting justice and upholding the rule of law. By heeding the principles articulated in Biowatch and exercising judicious discretion in awarding costs, courts can strike an appropriate balance that safeguards access to justice while discouraging abuse of the legal process.


In conclusion, the journey through adverse cost orders, the Biowatch principle and public interest litigation epitomises the intricate dance between legal principles, societal interests, and individual rights. As courts navigate this complex terrain, they play a pivotal role in shaping the contours of justice and ensuring that the legal system remains a bastion of fairness, equity, and accountability.


In the pursuit of justice, how can the legal system continue to evolve to strike a balance between deterring abuse of process and ensuring equitable access to justice for all?

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