The Constitutional Court of South Africa has set a precedent on judicial accountability concerning punitive costs orders.
In the initial proceedings, Shaynaz Prithilal pursued a delictual claim against Tsogo Sun Gaming Limited following a slip-and-fall incident at Gold Reef City Casino in 2018. Tsogo contended that Akani Egoli (Pty) Ltd was the actual operator, prompting Prithilal to apply for its inclusion as a defendant.
The High Court granted the joinder application on 20 February 2024. However, it also imposed a punitive costs order against Prithilal, obliging her to cover Akani’s legal fees on an attorney-and-client scale, a severe measure typically reserved for misconduct or frivolous litigation. Critically, the High Court failed to provide reasons for this order.
Prithilal sought leave to appeal, arguing that the unexplained punitive costs order infringed upon her constitutional rights under Sections 1(c) and 34 of the Constitution, which guarantee judicial accountability and the right to a fair trial. The lack of reasoning created barriers to judicial transparency, preventing her from assessing whether discretion had been exercised appropriately.
Accountability reaffirmed
In a unanimous ruling, the apex court emphasised that courts must articulate clear justification when imposing punitive costs orders. Failure to do so undermines the rule of law and obstructs litigants' ability to evaluate judicial decisions. The judgment further criticised the High Court’s dismissal of Prithilal’s leave to appeal, noting that without adequate reasoning, the ruling hindered her access to justice.
The Constitutional Court granted Prithilal leave to appeal, striking out the punitive costs order, and directed Akani Egoli to cover her legal expenses incurred in both the High Court and Supreme Court of Appeal.
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