Recent Developments Regarding Costs Awards in Constitutional and Public-interest Litigation

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Tumo Charles Maloka
Keyword(s):  
Public Interest ◽  
General Rule ◽  
Case Law ◽  
Professional Standards ◽  
Constitutional Rights ◽  
Public Interest Litigation ◽  
Second Stage ◽  
Recent Developments ◽  
Last Stage ◽  
The Impact

This contribution examines the contours of costs jurisprudence since the foundational trilogy of Ferreira v Levin NO 1996 (2) SA (CC), Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC) and Biowatch Trust v Registrar Genetic Resources 2009 (6) SA 232 (CC). Given that the general rule is not to award costs against unsuccessful litigants when they are litigating against state parties, the first stage of enquiry asks whether the case raises a public interest matter of transcendental importance. The second stage of enquiry delves into the impact that adverse costs orders might have on litigants seeking to vindicate constitutional rights. The last stage of enquiry considers the knotty question concerning personal costs awards against public officer-holders for conduct at variance with the Constitution. The signposts that emerge from evolving case law is that if an unsuccessful party lowered its ethical and professional standards in pursuit of a constitutional cause, such party may be mulcted with costs.  It is trite that courts will not hesitate to exercise discretion to impose adverse costs, and specifically hold public representatives personally liable for costs in order to reinforce the constitutional tri-norms of accountability, responsiveness and openness.

Biowatch Shield, Costs Liability for Abuse of Process and Crossfire Litigation ‒ Biowatch Trust v Registrar Genetic Resources 2009 (6) SA 232 (CC)

Obiter ◽  
2020 ◽  
Vol 41 (1) ◽  
pp. 186-198
Author(s):  
Tumo Charles Maloka
Keyword(s):  
Genetic Resources ◽  
Public Interest ◽  
General Rule ◽  
The State ◽  
Fundamental Rights ◽  
Constitutional Rights ◽  
Public Interest Litigation ◽  
General Proposition ◽  
Constitutional Justice ◽  
Transformative Process

While costs are traditionally dealt with at the tail end of proceedings and invariably in the concluding segment of a court’s judgment, they nevertheless continue to be consequential. This is especially so in respect of how access to constitutional justice is pursued and levered. The outlines of the progressive costs awards jurisprudence in constitutional and public interest litigation are encapsulated in Biowatch Trust v Registrar Genetic Resources (2009 (6) SA 232 (CC) (Biowatch)). Biowatch established the general proposition that in litigation between the State and private parties seeking to assert a fundamental right, the State should ordinarily pay costs if it loses. The Biowatch shield seeks to mitigate the “chilling effects” cost orders could have on parties seeking to assert their constitutional rights – even where unsuccessful. The threat of hefty costs orders may chill constitutional assertiveness. It may deter parties from challenging questionable practices of the State. This is particularly so in a society characterised by disparities in resources and inequality of opportunities. The vindication of fundamental rights is inseparably linked to the transformative process the Constitution envisages. It is now established that the general rule in constitutional litigation is that an unsuccessful litigant in proceedings against the State ought not to be ordered to pay costs. On the other hand, the Biowatch principle also permits exceptions and does not go so far as to immunise all constitutional litigation from the risk of an adverse costs order. A worthy cause or worthy motive cannot immunise a litigant from an adverse costs order for abuse of process or engaging in frivolous or vexatious proceedings.The case note addresses the application of the Biowatch principle in respect of cost orders where a public interest litigant has conducted the proceedings in an abusive, vexatious or frivolous manner, as well as in crossfire litigation. The first-tier question that arises is: can a court impose adverse costs awards on a constitutional litigant where a suit is unmeritorious or there is impropriety in the manner in which the litigation has been undertaken? There is also the delicate issue of costs awards in crossfire disputes. In pith and substance, crossfire disputes involve litigation between a private party and the State, provoked by the latter’s failure to perform its regulatory role but adversely affecting the interests of other private parties. In effect, the knotty question is: can adverse costs orders be made against interveners or parties who become involved in proceedings?

Parameter selection of an adaptive PI state observer for an induction motor

2013 ◽  
Vol 61 (3) ◽  
pp. 599-603 ◽  
Author(s):  
T. Białoń ◽  
A. Lewicki ◽  
M. Pasko ◽  
R. Niestrój
Keyword(s):  
Induction Motor ◽  
Angular Speed ◽  
Adaptation Mechanism ◽  
Dc Offset ◽  
Second Stage ◽  
Parameters Selection ◽  
Parameter Variations ◽  
Last Stage ◽  
The Impact ◽  
Selection Of

Abstract The paper discusses problems connected with the parameters selection of the proportional-integral observer, designed for reconstruction of magnetic fluxes and angular speed of an induction motor. The selection is performed in several stages that are focused on different criteria. The first stage consists in selecting observer’s gains and provides desired dynamical properties, taking into consideration immunity to disturbances and parameter variations of observed system. The second stage prevents an observer from DC-offset cumulation and instability. The last stage consists in setting the parameters of a speed adaptation mechanism. The impact of different settings on the properties of an observer is illustrated with experimental results, obtained in the multiscalar control system of an induction motor

Multinational Company Litigation

2021 ◽  
pp. 85-112
Author(s):  
Jason Brickhill ◽  
Zanele Mbuyisa
Keyword(s):  
South Africa ◽  
South African ◽  
Public Interest ◽  
Common Law ◽  
Access To Justice ◽  
Public Interest Litigation ◽  
Human Rights Abuses ◽  
Class Actions ◽  
Current State ◽  
Recent Developments

Jason Brickhill and Zanele Mbuyisa review the current state of play in South Africa in terms of the imposition of civil liability on multinationals for human rights abuses. They outline the rules on jurisdiction over claims by foreign claimants and corporations and potential causes of action under common law, statute, and the Constitution. Specific consideration is given to the potential influence on the development of South African law of recent English law decisions on parent company liability. By reference to the goldminers’ silicosis and the Kabwe lead poisoning cases, they highlight the value to victims of the relatively recent developments of class actions in South Africa and the rules on discovery and damages. In terms of access to justice, they consider the receptiveness of the judiciary to public interest litigation and the key provisions relating to prescription and costs and funding, including by litigation funders.

Where Next After Coman?

2019 ◽  
Vol 21 (1) ◽  
pp. 117-139
Author(s):  
Amanda Spalding
Keyword(s):  
Case Law ◽  
European Convention ◽  
The European Union ◽  
Current Position ◽  
Court Of Justice ◽  
Form Part ◽  
Recent Developments ◽  
Definition Of ◽  
The Impact ◽  
The Eu

Abstract This article considers the impact of the recent judgment of the Court of Justice of the European Union in Case C-673/16 Coman and Others in which same-sex marriages where found to fall under the definition of ‘spouse’ in the Citizenship Directive. In light of recent societal and case law developments in Europe it is possible that Coman may come to be an important foundational case which will form part of the groundwork for the CJEU to advance the rights of unmarried couples in the EU migration context. This article examines the current position of unmarried couples (including registered or civil partners) under EU migration legislation as well as recent developments under the European Convention of Human Rights to argue that there are clear indications that EU migration laws need to be adapted to better suit a wider range of relationships than marriage.

Renewable-Energy Support Schemes in the Case Law of the Court of Justice of the eu: Tensions Between Trade and Climate Objectives

Climate Law ◽  
2016 ◽  
Vol 6 (3-4) ◽  
pp. 264-278
Author(s):  
Eirini Tsifopoulou
Keyword(s):  
Renewable Energy ◽  
Market Integration ◽  
Case Law ◽  
Potential Conflict ◽  
Court Of Justice ◽  
Promotion Policies ◽  
Recent Developments ◽  
Free Movement Of Goods ◽  
The Impact ◽  
The Eu

This article discusses the application of eu law by the Court of Justice of the eu to the renewable-energy promotion policies. The key question in the case law is whether national policies designed to promote locally produced renewable energy are consistent with eu law, and specifically with the principle of the free movement of goods. The article analyses the recent Ålands Vindkraft and Essent Belgium cases, focusing on the interaction and potential conflict between trade objectives and the objective of promoting renewable energy. It is argued that the Court has consistently accommodated national support policies with competing trade objectives while emphasizing the need for proportionality in restrictions on trade. The article also discusses the impact of the Court’s rulings on eu renewables policies against the backdrop of recent developments towards increased market integration of renewable energy.

Europeanization through Constitutionalism

2020 ◽  
pp. 536-559
Author(s):  
Madis Ernits ◽  
Karmen Pähkla
Keyword(s):  
Case Law ◽  
Administrative Law ◽  
European Convention ◽  
Constitutional Rights ◽  
Council Of Europe ◽  
Administrative Procedure ◽  
General Part ◽  
State Liability ◽  
Principle Of Legality ◽  
The Impact

This chapter discusses the impact on Estonian administrative law of the pan-European principles of good administration developed by the Council of Europe (CoE). It argues that there is no conceptual mismatch between Estonian law and the administrative law of the CoE. This is attested by the fact that the European Convention on Human Rights was one of the main models for the constitutional rights chapter of the Estonian Constitution and remains widely discussed in the case law of Estonian courts. Moreover, the laws on the general part of Estonian administrative law—the Administrative Procedure Act and State Liability Act of 2001—among other things, have been guided by the pan-European principles of good administration. At the same time the chapter expresses doubts regarding the significance of the soft law sources of the CoE because of the principle of legality prevalent in Estonian law, which presents a hindrance to their permeation.

scholarly journals The Scope of the Powers of the Minister of Finance in Terms of Section 48(1)(b) of the Customs and Excise Act 91 of 1964: An Appraisal of Recent Developments in Case Law

2018 ◽  
Vol 21 ◽  
pp. 1-25
Author(s):  
Clive Vinti
Keyword(s):  
Final Analysis ◽  
Case Law ◽  
Veto Power ◽  
High Court ◽  
The Public ◽  
Recent Developments ◽  
The Impact ◽  
First Time ◽  
The Relationship

This paper evaluates the scope of the powers of the Minister of Finance upon a request from the Minister of Trade and Industry to amend Schedule 1 to the Customs and Excise Act 91 of 1964 (hereafter, CEA) in respect of imported goods as provided by section 48(1)(b) of the CEA. This assessment entails a case analysis of the High Court decisions in South Africa Sugar Association v the Minister of Trade and Industry 2017 4 All SA 555 (GP) and Pioneer Foods (Pty) Ltd v Minister of Finance 2017 ZAWCHC 110 (29 September 2017). These two cases offer for the first time, clarification on the nature of the power conferred on the Minister of Finance by section 48(1)(b) of the CEA. The High Court in these two cases rejected the argument that the role of the Minister of Finance in respect of the power conferred upon him/her by section 48(1)(b) is that of a "registrar" who merely 'rubberstamps' the decision of the Minister of Trade and Industry. Consequently, the High Court in both matters held that a veto power is conferred on the Minister of Finance which permits him/her to either accept or decline the request of the Minister of Trade and Industry to amend Schedule 1 of the CEA.To the contrary, this paper argues that if the Minister of Finance declines the request of the Minister of Trade and Industry, s/he is not 'giving effect' to the request of the Minister of Trade and Industry as required by section 48(1)(b) of the CEA and is thus acting ultra vires because s/he is assuming powers which never conferred on him/her by the legislature. This paper also argues that the High Court in both matters, misconstrued the relationship between section 48(1)(b) and the "public interest" provisions in section 48 and thus unjustifiably stripped the Minister of Trade and Industry of his/her power to implement an amendment to Schedule 1. In the final analysis, this paper explores the impact of the Customs Duty Act 30 of 2014 on the Minister of Finance's powers in this regard.    

scholarly journals Human Rights and Climate Change

2018 ◽  
Vol 28 (1-4) ◽  
pp. 113-144 ◽  
Author(s):  
Julie H. Albers
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
Public Interest ◽  
Case Law ◽  
International Human Rights Law ◽  
Intergenerational Justice ◽  
Human Rights Law ◽  
Right To Life ◽  
Public Interest Litigation ◽  
European Court

This article explores the opportunities to use international human rights law to protect one’s right to life against the effects of climate change. It discusses four legal avenues: greening the existing human rights paradigm, formulating a new substantive right to the environment, public interest litigation and intergenerational justice. This is illustrated with case law from the European Court of Human Rights and various national jurisdictions. The main finding is that the human rights system should become more open towards public interest litigation and intergenerational justice, complemented by a broadening of the standing requirements.

Balancing Scenarios

2020 ◽  
pp. 331-389
Author(s):  
Jef Ausloos
Keyword(s):  
At Risk ◽  
Information Processing ◽  
Public Interest ◽  
General Rule ◽  
Case Law ◽  
Third Parties ◽  
Common Interest ◽  
Policy Documents ◽  
The Public ◽  
Data Subject

Having defined the mechanics of (GDPR) balancing in Chapter 5, this chapter explores three concrete balancing scenarios. The three scenarios are selected based on their prevalence in the information society services (ISS) context, and on the different types of entities they generally represent: (a) commercial interests, mainly relating to the ISS provider; (b) information freedoms, mainly relating to third parties such as users of the ISS provider; and (c) research and security interests, mainly representing a shared or common interest. It appears from a combined reading of the GDPR, policy documents, and CJEU case law that as a general rule, commercial interests cannot trump data subjects’ interests when exercising their right to erasure or to object. When these rights affect the information freedoms of third parties, the GDPR requires powerful ISS providers to take up their responsibility, but only insofar as they actually control the respective information processing operations. In order for research interests to be able to override data subject rights, it will generally have to be carried out in the public interest and severely hampered by anonymization. With regard to security interests, finally, the processing will have to be strictly necessary, effective, and proportionate. Overall, this chapter clearly demonstrates how fair balancing is an inherently open-ended legal exercise. The GDPR tries to provide some structure, inter alia by setting clear defaults in favour of different rights, freedoms or interests that might be particularly at risk in certain situations.

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