On Thursday 25 November 2010 the Constitutional Court delivered a judgment concerning a provisional costs order it had made in favour of the applicant, Ms Malachi. In terms of the order, Ms Malachi’s employers and the Minister for Justice and Constitutional Development (Minister) were each ordered to pay half of her costs in the Constitutional Court.

The parties were afforded the opportunity to lodge written submissions on whether to confirm or discharge the provisional order.

Having considered the submissions, a unanimous Court, per Mogoeng J, was satisfied that it would not be just and equitable for the employer to pay any of Ms Malachi’s costs. Since the challenge to the constitutionality of the offending provisions was a contest, not between Ms Malachi and her employers but, between her and the Minister, it was found to be just and equitable that Ms Malachi’s costs be borne by the Minister alone.

For these reasons, the Court discharged the provisional order and ordered the Minister to pay Ms Malachi’s costs in this Court.