As indicated in paragraph 3 of this judgment the Cape High Court correctly granted no substantive relief to FNB in this matter. FNB’s counsel in this case (who also appeared in this Court on its behalf in the Republic Shoes case) contended in the High Court, however, that if FNB was successful in the Lauray-Airpark case it should not be ordered to pay all the costs in the Republic Shoes case, because a great deal of the research done in the latter case was utilised in the former. Inasmuch as no relief was granted to FNB in the Lauray-Airpark case either, the High Court correctly found it unnecessary to consider this contention.181
The present limited appeal in the Republic Shoes matter on the question of costs was premised on the fact that FNB would achieve substantial success on appeal in the Lauray-Airpark case. FNB has achieved such success and it accordingly becomes necessary to consider the argument on the costs to be awarded in the High Court. It must be borne in mind that in as much as it was unnecessary for the High Court to consider what an appropriate costs order would have been in the Republic Shoes matter if FNB had been successful before it in the Lauray-Airpark matter, this Court, if it decided to deal with it, would be at large on the question of such costs.
It was contended on appeal that in the event of FNB achieving substantial success on appeal in the Lauray-Airpark matter, the question of the High Court costs should be remitted to the High Court for consideration. In the alternative, it was submitted that this Court could consider the matter as being an issue connected with a decision on a constitutional matter for purposes of section 167(3)(b)182 and should order that –
(a) the respondent should pay FNB’s costs arising from research into and consideration of the comparative international situation, as though the costs had been incurred in the Lauray-Airpark matter;
(b) any costs order in respondent’s favour should exclude costs arising from research into and consideration of the comparative international situation.
If this Court has the power under section 167(3)(b) of the Constitution to consider this issue on costs then it should do so. It is in as good a position as the High Court to consider the matter. This was in fact the view of the High Court in granting a positive certificate to FNB under Constitutional Court Rule 18(6). There is, moreover, no justification for incurring further costs that a referral back to the High Court would entail, merely to determine liability for costs already incurred.
In essence the argument advanced on FNB’s behalf is that certain costs incurred in the Republic Shoes case ought to be treated as though they were incurred in the Lauray-Airpark case. This would in effect require a consideration of the interrelationship between the two cases and the costs incurred in the latter case. This is an issue connected with a decision on a constitutional matter, namely the unconstitutionality of section 114 of the Act, which in turn entitles FNB to its costs in the Lauray-Airpark case, and this Court ought to consider it.
The argument in support of the costs relief contended for was twofold. In the first place it was contended that the timing of the in limine point, namely that FNB had no cause of action under the interim Constitution, was important. Had the respondent raised it at an earlier stage FNB would not have persisted with the Republic Shoes matter. There is no merit in this submission. There is no suggestion that the respondent acted in bad faith and deliberately withheld raising the absence of a constitutional cause of action in order to increase the costs at FNB’s expense. Moreover, the fact that the respondent did not grasp or raise the point earlier, affords no excuse for FNB not being aware of it sooner.
Secondly it was argued that the international comparative research had, in any event, to be done for the Lauray-Airpark matter, had to be done only once, and was not wasted. Because FNB enjoyed the benefit in this case of the research done in the Republic Shoes case, it should, at the very least, not have to bear those costs in the latter case. This contention cannot be acceded to. It is nothing more than a collegial wind-fall for counsel or legal representatives in case X to benefit from research done by legal representatives in case Y. The issues in the Lauray-Airpark case are complex and difficult, as both this and the High Court judgment demonstrate. The case amply warranted the employment of two counsel on FNB’s behalf. Two counsel were not employed. Instead separate single counsel were employed for each case. This the litigant is fully entitled to do, but must live with the consequences of its decision. No sound principle of law, fairness or logic suggest itself why work done and money expended by an applicant in one case, in which the applicant achieves no success, can be treated as though it were work done in a separate case, simply because the applicant’s legal representatives in the latter case have fortuitously benefited from it.