The SCA overturned the order of the high court which awarded costs to the amicus curiae.  The amicus assists the court by providing information or arguments and does not have a direct interest in the outcome.  Not being a winner or a loser it is generally speaking not entitled to be awarded any costs.

City of Cape Town v Khaya Projects (Pty) Ltd (158/2015) [2016] ZASCA 107 (26 July 2016) per Victor AJA (Maya DP, Majiedt, Seriti, Willis JJA concurring)

SCA summary:

Constitution – right to adequate housing – private construction company not an organ of state and incurs no constitutional obligations independent of any statutory or contractual obligations when it contracts to build low cost housing funded by the State – houses allegedly defectively built – arbitration pending between developer and construction company – City of Cape Town not a party to the arbitration and has no locus standi to have the arbitration declared lapsed – principle of subsidiarity applies where parties seek to enforce socio economic rights – should first rely on existing statutes or challenge those instruments as unreasonable. 


[44] The court a quo ordered that the City must pay the costs of the amicus curiae. The City appeals this order. In Hoffmann v South African Airways [2000] ZACC 17; 2001 (1) SA 1 para 63 the court held:

‘An amicus curiae assists the Court by furnishing information or argument regarding questions of law or fact. An amicus is not a party to litigation, but believes that the Court’s decision may affect its interest. The amicus differs from an intervening party, who has a direct interest in the outcome of the litigation and is therefore permitted to participate as a party to the matter. An amicus joins proceedings, as its name suggests, as a friend of the Court. It is unlike a party to litigation who is forced into the litigation and thus compelled to incur costs. It joins in the proceedings to assist the Court because of its expertise on or interest in the matter before the Court. It chooses the side it wishes to join unless requested by the Court to urge a particular position. An amicus, regardless of the side it joins, is neither a loser nor a winner and is generally not entitled to be awarded costs.’

These remarks are apposite here. The order of the court below that the appellant is to pay the amicus’s costs must be set aside.