Abstract
After nearly three years of waiting, the North Gauteng High Court (then the Pretoria High Court) finally handed down judgment in March 2010 in the case of Christian Roberts v Minister of Social Development.[1] The case was a constitutional challenge to section 10 of the Social Assistance Act 13 of 2004 and the relevant Regulations, which set the age for accessing an old age grant at 60 for women and 65 for men. After the hearing the High Court had reserved judgment. Pending judgment the government had amended the legislation in dispute so that the pensionable age for the purposes of accessing a social grant would be equalised over time. Despite the change in legislation, the High Court found against the applicants and punished them with a costs order. 
 
 
 * Siyambonga Heleba. LLB (UWC), LLM (UU), Adv Cert (AAU) Dip (UJ). Lecturer, Faculty of Law, University of Johannesburg. Email: scheleba@uj.ac.za. This case note is based on a the paper presented at the Law Teachers Conference on 18 January 2011, at the University of Stellenbosch. The author is indebted to the two anonymous referees for their valuable comments on an earlier draft of this note. All mistakes are mine.
 [1] Christian Roberts v Minister of Social Development Unreported Case No 32838/05 (2010) (TPD). The author attended the two-day hearing of the case in September 2007, in his capacity as a researcher at the Community Law Centre, of the University of the Western Cape, and an amicus in the case. 
 
 
Highlights
After nearly three years of waiting, the North Gauteng High Court handed down judgment in March 2010 in the case of Christian Roberts v Minister of Social Development.[1]
The trend appears to have been followed by other courts in South Africa that the judicial discretion in relation costs awards in a constitutional litigation, against the State, brought in the public interest – unless the application is frivolous or vexatious or the applicant behaved in an objectionable manner – is to be exercised in such a manner that it does not lead to adverse costs orders against such litigants, where they are unsuccessful
The special significance of public interest litigation as a factor in the consideration of costs was endorsed in the Okanagan Indian Band case,[83] which involved a challenge by the Okanagan Indian Band to a prohibition on logging on their land without the loggers having obtained prior approval
Summary
After nearly three years of waiting, the North Gauteng High Court ( the Pretoria High Court) handed down judgment in March 2010 in the case of Christian Roberts v Minister of Social Development.[1]. The decision threatens the hitherto special role played by public interest litigants in vindicating constitutional rights ranging from access to housing and land, to the rights of the child, gay men and lesbian women and freedom of expression, among others This contribution tackles two issues arising from the judgment of the High Court. Subsequent to the hearing the government brought the discrimination to an end by amending the impugned legislation so that the differentiation would be phased out over a three-year period, so that men would access social old age grants from the age of 63 by April 2008; from 61 years by April 2009; and achieve equality (at 60) by April 2010 Despite this change in the legal position, the High Court found against the applicants and upheld the contentions justifying the retention of the differentiating scheme at the time the case was heard. In effect the High Court order sought to retain a dead legislative scheme
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